Almost as soon as the Senate passed S. 510 with the Tester-Hagan amendment, members of the House of Representatives raised objections that S510 includes provisions for “user fees,” which they argued were “revenue raising provisions” that violated the Constitutional requirement that all tax provisions originate in the House.

We alerted you to these new questions about the bill last week, but the situation is even more unclear than it first appeared. No one in the Senate apparently noticed this problem, yet unnamed House members supposedly spotted it within hours. Other bills that have originated in the Senate have included user fees and passed without objection. And the Supreme Court has upheld these sorts of Senate-originated user fees in the past.

There may be Constitutional problems with the provisions, but it also may be a maneuver to stall the bill in order to make changes. The same day that the procedural objections were announced, Agribusiness lobby groups sent letters urging House members to conference S510 with HR 2749 (the House version), for the single specific purpose of stripping out the Tester-Hagan amendment. Until the procedural objections were raised, the House leadership had pledged to bring S510 to a vote without conferencing the bills. It’s suspicious that the Agribusiness groups were prepared to immediately take advantage of the delay to try to remove the protections of the Tester-Hagan amendment.

Even with the Tester-Hagan amendment, there are significant concerns about S510. Although most local producers will be protected by the amendment, some will still be subject to the new regulations. And the bill increases FDA’s power overall, which is a significant problem given the agency’s track record of abusing the powers it already has.

With the clock ticking on the lame duck session, the procedural objections might kill this bill completely. But there is also a risk that the bill could pass without the Tester-Hagan amendment due to the latest maneuvering. Agribusiness’s real concern about the Tester-Hagan amendment isn’t food safety, but the precedent set by having Congress recognize that small, direct-marketing producers are different, and should be regulated differently, from the large Agribusinesses.

TAKE ACTION

Please contact your Congressman today! You can call the Capitol Switchboard at 202-224-3121 or go to www.house.gov to find their website (if the phone lines are busy, the best way to reach them is through the Contact page on their website)

Message:

“My name is ____, and I am a constituent who is concerned that FDA will abuse its new authority under the food safety bill to hurt small farmers and local food producers. IF the food safety bill passes, it’s critical that it at least include the Tester-Hagan amendment to protect small-scale producers from the regulations for hazard analysis plans and growing and harvesting standards. And whether this bill passes or not, I want my Congressman to take steps to rein in the FDA’s abuses, through limiting appropriations and overseeing the agency’s rulemaking. I would like to talk with you more about this, please call me back at ________.”

MORE INFORMATION

To be understood, the Tester-Hagan amendment needs to be read in the context of S510 and the existing background law, including the 2002 Bioterrorism Act. There is a lot of information, and it’s difficult to work through all of it.

Here are some of the key impacts of the amendment:

● For farmers selling fresh fruits and vegetables: if the producer grosses under half a million dollars, adjusted for inflation, and sells at least half of their produce directly to “qualified end users” (see below), then the farmer is exempt from the produce safety standards (i.e. regulations in which FDA would tell farmers how to grow and harvest their crops). See pages 16-19 of the amendment. Note that the FDA has already started working on these growing and harvesting standards, and claims that the existing law — without S510 or Tester-Hagan — gives it authority to impose the standards on ALL farmers.

● For farmers and producers who sell processed or value-added foods: if they sell more than half of their products directly to individual consumers, they do not have to register with the FDA nor develop a hazard analysis plan. This is due to the provision entitled “clarification of intent” that directs FDA how to define retail food establishments, see pages 1-2 of the amendment.

● For farmers and producers who sell processed or value-added foods, but do not sell more than half of their products directly to individual consumers: they are ALREADY under a legal requirement to register with the FDA due to the 2002 Bioterrorism Act. The Tester-Hagan amendment provides that these producers can avoid having to comply with S510’s extensive requirements for hazard analysis plans by:

1) Submitting documentation that they gross under half a million dollars, adjusted for inflation, and sell more than half their products directly to “qualified end users” (see below), and
2) EITHER providing documentation that they comply with state and local laws – such as a copy of their commercial kitchen license – OR preparing a simplified hazard plan. See pages 5-6 (the “or” is found on line 4 of page 6)

● “Qualified end users” are (a) individual consumers, WITHOUT any restriction on their location or proximity to the producer, and (b) restaurants and retail food establishments that are either in-state OR within 275 miles. The farmers and producers will NOT have to ask individual consumers where they come from. See pages 7-8 & 18.

● The $500,000 limit on the exemptions is adjusted for inflation. See page 5, lines 13-14, and page 16, line 12

● The amendment also directs FDA to conduct a study that would, for the first time, look at the issues of scale and type of processes in relation to foodborne illness. The directive to do a study is the first attempt to get data to show that smaller-scale producers who don’t commingle their products and who do less processing and transportation produce safer food. The FDA is also directed to use the results of the study to define “very small businesses” that will also be exempt from the hazard analysis plan requirements. The bill does NOT mandate that any individual person hand over the information to the government.

None of this is a perfect solution – S 510 and the Tester-Hagan amendment involved very ugly sausage making. The Tester-Hagan amendment fixes some of the existing problems caused by the 2002 Bioterrorism Law and a very significant part of the problems that would be caused if S510 passes. But it is, at its heart, about damage control.

Agribusiness industry groups have a great deal of influence over both FDA and Congress. This problem has developed over decades and it will take a long time to change. Thank you for speaking up and taking action.

For more information, see Analysis of the Tester-Hagan Amendment.

You can read the Tester-Hagan amendment for yourself at: http://tester.senate.gov/Legislation/upload/tester_amendment_agreement.pdf