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What does the Food Safety Modernization Act mean for you?

As Senators prepare to vote on the food safety bill, NewHope360 explores the forces that have hindered passage of S.510 and what the legislation could mean for producers and consumers of natural, organic and healthy products.

The issue of food safety is taking center stage on Capitol Hill today, as the Senate prepares to vote on the Food Safety Modernization Act (FSMA) this evening. The bill (S.510), which has stirred up angst on both sides of the political spectrum, gives the U.S. Food and Drug Administration (FDA) greater authority to test and recall food and beverage products that it suspects are contaminated. If passed, S.510 could profoundly affect numerous groups—including consumers—within the world of natural, organic and healthy products.

The FDA Food Safety Modernization Act passed the Senate’s Health, Education, Labor and Pensions (HELP) Committee without any dissenting votes on Nov.18, 2009, but then the bill took a back seat to health care reform and the midterm election. After a year of delays, the revised legislation is expected to finally pass the Senate thanks to efforts by both Democrats and Republicans to establish bipartisan support for the bill. 

As of last week, the revised Senate bill includes an amendment that protects small farmers, but a provision banning BPA from food containers didn’t make the cut, nor did a proposed amendment from Senator Patrick Leahy that would have created a new criminal offense for knowingly distributing tainted food products. Although S.510 is expected to pass the Senate, it continues to generate unrest—including among the Tea Party movement and the agribusiness industry. Supporters of FSMA include Grocery Manufacturers of America, the Food Marketing Institute, the Organic Trade Association, the Council for Responsible Nutrition (CRN) and healthy food advocates Michael Pollan and Eric Schlosser (who jointly penned a New York Times editorial in support of the bill on Nov. 28).

As Senators on both sides spend today deciding whether to vote for or against the Food Safety Modernization Act, here are some answers to (or at least discussion of) the questions you might have about the bill and what it could mean for producers and consumers of natural, organic and healthy products.

Is a food safety overhaul really necessary?

Recent food scares, including last summer’s massive egg recall linked to salmonella contamination, provided Senators Dick Durbin (D-Illinois), Orrin Hatch (R-Utah), Tom Harkin (D-Iowa) and other FSMA supporters the ammunition necessary to finally make the legislation a Senate priority. But how bad is the United States’ food safety problem really? “On the whole, Americans enjoy safe and wholesome food,” Harkin, chairman of the Senate Committee on Health, Education, Labor and Pensions (HELP), said Nov. 18 on the Senate floor. “The problem is that 'on the whole' just is not good enough.”

In defending FSMA, Harkin presented data from the Centers for Disease Control and Prevention (CDC) which showed that food-borne illnesses sicken approximately 76 million people a year, causing 325,000 hospitalizations and 5,000 deaths. (Others question this CDC data, however.) Georgetown University estimates that food-borne illnesses cost the United States $152 billion per year in medical expenses, lost productivity and disability.

“Senators often talk about the importance of addressing so-called 'kitchen table' issues—the practical, everyday concerns of working Americans,” Harkin said. “Well, food safety is literally a 'kitchen table' issue. And it couldn’t be more urgent or absurdly overdue. It is shocking to think that the last comprehensive overhaul of America’s food safety system was in 1938—more than seven decades ago.”

Not everyone agrees with Harkin, however, including members of the Tea Party movement. On Nov. 19, political commentator and Tea Party hero Glenn Beck made the following statements about food safety on his radio show: "Show me the country that has a safer food supply than us, can you, please?  Who has a safer food supply?  Is it Sweden?  You know what?  When we reduce the population of America down to the size of Sweden, we'll get a band of really hot blonds, call them Abba and we can emulate their food supply as well."

Who should keep our food safe: government or consumers?

Like Beck, Senator Tom Coburn (R-Oklahoma) is working to take down the Senate’s food safety bill, in large part because he doesn’t believe the government can pay for the legislation (which is estimated will cost about $300 million annually) or that the country really needs it.

Coburn was able to delay a Senate vote on the bill by insisting that the Senate consider adding to the legislation an amendment to halt earmarks. But the upper chamber was able to halt Coburn’s ability to further stall passage of S.510 by voting Nov. 18 to limit debate on the bill. Along with voting on S.510, Senators will also cast ballots on four separate amendments, including Coburn's earmarks moratorium and the Oklahoma Senator's alternate food safety bill (which was designed to "modernize Federal food safety efforts without placing unnecessary burdens on food producers, increasing food prices, or saddling taxpayers with additional debt").

Coburn's scaled-back food safety bill is based on his belief that consumers, not government, are in the best position to keep food safe.  “Throughout the debate, proponents have claimed we haven't modernized food safety laws in 100 years,” Coburn wrote in a Nov. 23 op-ed published in USA Today. “That proves my point. For the past 100 years, the free market, not the government, has been the primary driver of innovation and improved safety. Consumer choice is a far more effective accountability mechanism than government bureaucracies.”

Will FSMA make food safer in the United States?

Certainly, many Americans do believe the United States is in the midst of a food-safety crisis that must be dealt with by the federal government, but many also question whether the FSMA in its current form will actually make the country’s food system safer if it focuses more on small farms than on large corporate farms, where the majority of the recent food contamination has occurred.

 I can’t imagine, in the constrained budgetary environment we’re all going to be working in, that S. 510 will be adequately funded,” Mark Kastel, co-founder of The Cornucopia Institute, told the website “That will make it more important to make sure that limited resources truly are targeted to achieve the best bang for the buck in terms of protecting the citizenry. We know where the greatest risks are both in terms of hazards and scale—indirect, through many middlemen and sundry brands, and national distribution. It makes no logical sense whatsoever to focus on owner-operated direct marketers.”’s senior food and agricultural writer Tom Philpott made a similar point in a Nov. 23 article about the food safety bill: “S. 510 represents a small step in the right direction, so long as it doesn't crush the alternative food systems that are emerging to challenge Big Food.”

Philpott went on to question whether the bill would take care of the real root of America’s food safety problems: factory farms. “It is impossible, it seems, to come up with a policy that zeroes in on the real systematic risk of the food system: the exponential expansion of hazard that comes from concentrating huge amounts of production in relatively small spaces.

In their Nov. 28 New York Times op-ed, Pollan and Schlosser defend FSMA’s ability to keep the United States’ food safe. “The bill would, for the first time, give the FDA, which oversees 80 percent of the nation’s food, the authority to test widely for dangerous pathogens and to recall contaminated food,” they write. “The agency would finally have the resources and authority to prevent food safety problems, rather than respond only after people have become ill. The bill would also require more frequent inspections of large-scale, high-risk food-production plants.”

Are family-scale farmers at risk?

The biggest stumbling block for the food safety bill—and one at the core of the natural and organic products industry—was the question of how the legislation would affect small-scale family farmers who wouldn’t be able to afford the costs associated with increased FDA scrutiny.

Senators Jon Tester (D-Montana) and Kay Hagan (D-NC) seem to have calmed this fear, however, with their amendment, which exempts small farmers who earn less than $500,000 and sell directly to consumers living within 275 miles from some of the bill’s requirements. The amendment does include a provision allowing the FDA the ability to withdraw an exemption if a farm or facility is linked to an outbreak. 

As Tester told reporters, his amendment wasn’t designed to “give anybody a loophole they can drive a truck through; it’s to give them a loophole they can walk through with a wheelbarrow full of locally grown farm-processed food.”

“We are happy with the outline of the final deal on the Tester-Hagan amendment,” Ferd Hoefner, policy director of the National Sustainable Agriculture Coalition, told Food Safety News. “It is not exactly what we wanted, but it is something we can live with and get behind.  We congratulate the bill's sponsors and the amendment’s sponsors for their dedication to reaching an agreement that is good for family farmers, good for healthy food consumers, and good for food safety.”

Of course, the inclusion of the Tester Amendment has ruffled some feathers, including those belonging to large-scale producers. “We must now oppose S. 510, the Food Safety Modernization Act, because recent changes to the bill are not in keeping with our fundamental position of risk- and science-based food safety efforts,” the Produce Marketing Association wrote in a Nov. 19 statement. “If [the Tester-Hagan Amendment] were enacted, federal regulation would apply based on where the food is sold and how much it earns—neither of which are risk factors.”

What will FSMA mean for dietary supplements?

Although regulated separately under the Dietary Supplement Health and Education Act (DSHEA), supplements are technically considered food products. As a result, much debate has occurred over the last year over how food safety legislation could impact dietary supplement producers and consumer access to these products.

The Food Safety Modernization Act is sponsored by Senator Richard Durbin, who is known for being less than friendly to the supplement industry, but co-sponsored by two strong advocates of the dietary supplement industry: Senators Orrin Hatch (R-Utah) and Tom Harkin (D- Iowa). The companion version of S.510 proposed in the House of Representatives was met with fierce opposition by the U.S. supplement trade associations, the Senate bill is supported by the Natural Products Association (NPA) and other supplement groups—thanks in large part to modifications to the legislation that were influenced by industry lobbying.

“While the NPA has opposed the House version of the Food Safety bill, the Senate legislation is a more balanced approach that recognizes the special nature of supplements,” NPA President John Gay wrote in a Nov. 19. statement. “Not included in the revised package is the amendment proposed by Sen. Patrick Leahy that the Natural Products Association opposed. Retained in the bill is the language negotiated between industry champion Senator Orrin Hatch and Senator John McCain."

Gay also applauded the inclusion of provisions protecting supplement makers from duplicative safety regulations in the revised S.510, as well as language clarifying that nothing in the bill promotes adoption of CODEX by the United States. "These provisions are supported by NPA,” he wrote.

The Council for Responsible Nutrition also supports FSMA. “To date, this legislation represents what may be the best opportunity to lead a national, if not global, agreement on food-borne illness protection,” CRN President and CEO Steve Mister wrote in a letter to Durbin and Judd Gregg, another FSMA supporter. “The legislation will require annual registration of food manufacturing facilities [including dietary supplement manufacturing facilities]. It will also give FDA new authority to mandate food recalls and require companies to develop food safety plans to address high risk junctures in manufacturing where avoidable contamination might occur.”

What's next?

If the Food Safety Modernization Act does move through the Senate as expected, the House would need to either pass the Senate bill as is or call for a conference to reconcile it with the House version of the legislation (which passed in 2009).

If the bill doesn’t pass both houses in time for to reach President Obama’s desk before the end of the year, the entire process will need to start anew in 2011.

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