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October 30, 2009
For food manufacturers, the pending food safety law making its way through Congress is the topic du jour. Grocery retailers are smart to stay abreast of this complicated piece of legislation to ensure they can ask manufacturers the right questions about their food safety policies, respond to food safety issues appropriately and communicate with customers about the issue.
The U.S. Food Safety Enhancement Act of 2009 was introduced in June by Rep. John Dingell, D-Mich. The House of Representatives passed its version of the legislation before the August recess. Senate consideration was delayed in September as the committee with jurisdiction over food safety legislation was also handling potential health care reform.
The legislation is a response to the growing outbreaks of foodborne illnesses that sicken 76 million people each year, resulting in 325,000 hospitalizations and 5,000 deaths, according to the Centers for Disease Control and Prevention. The bill gained new urgency after salmonella linked to shoddy practices at a Georgia peanut company last year killed nine people and sickened hundreds of others.
Supporters say the bill will give the U.S. Food and Drug Administration a greater role in preventing foodborne illness rather than simply reacting to it. The FDA would have more money and power to inspect and conduct recalls of contaminated food, and some operators will be expected to pay fees and implement tracking plans. Food processors should be reviewing their records in anticipation of the new mandate, says Patty Lovera, assistant director of the nonprofit Food & Water Watch in Washington, D.C.
Critics argue that because some provisions in the bill are poorly defined, they could hurt small food operations.
Here’s what you can expect if the Food Safety Enhancement Act of 2009 passes through Congress:
Mandatory inspections. Every six to 12 months, the FDA will inspect producers of high-risk foods that spoil easily, such as raw seafood, and processing facilities that have had food safety problems in the past. Lower-risk facilities, such as those that produce dry-packaged items or that have no history of problems, will be inspected every 18 months to three years. Warehouses will be inspected every five years. Foreign facilities that export food to the United States will have the same inspection requirements.
Registration and fees. Food processors, importers and other food handlers must register every year with the FDA, and they must pay an annual fee of $500 for each facility. The fee is capped at $175,000 for companies with multiple facilities.
Recalls. The FDA has the authority to mandate recalls of contaminated foods instead of looking to food manufacturers to pull products voluntarily.
Safety standards. The FDA, for the first time, has the authority to set standards for safe production of food on farms and require food manufacturers and processing plants to meet safety standards and develop plans. The bill requires the FDA to take into account organic production standards as well as the effect the standards will have on small-scale farms.
Traceability. The legislation directs the FDA to establish a traceability system for all domestically produced and imported food. As a part of that mandate, the FDA is directed to develop a pilot project to be used by food growers, manufacturers and distributors to trace back the origin of the food. The bill also expands the number of products subject to country of origin labeling requirements. Farmers who sell their products directly are exempt from the traceability requirements.
Quarantine. The FDA, in coordination with the U.S. Department of Agriculture, can quarantine geographic areas where contamination has occurred.
Penalties. The FDA has the authority to impose civil and criminal penalties on violators.
The Congressional Budget Office estimates costs for increased inspections at about $2.2 billion over five years. New fees would bring in $1.4 billion over the same period. The budget office estimates the total cost to administer the bill at $3.5 billion over five years. The full text of the bill can be viewed by visiting govtrack.us.
Controversy surrounding the bill
The Food Safety Enhancement Act has been praised by groups ranging from the Grocery Manufacturers Association to the Center for Science in the Public Interest. President Barack Obama called it “a major step forward in modernizing our food safety system.”
“This legislation will strengthen our nation’s food safety net by placing prevention as the cornerstone of our nation’s food safety strategy … (It) represents a once-in-a-lifetime opportunity to modernize our food safety system,” says Pamela Bailey, president and CEO of the Washington, D.C.-based Grocery Manufacturers Association, in a statement.
Tom Stenzel, president and CEO of Washington, D.C.-based United Fresh Produce Association, says his trade organization “is gratified by the House passage of this landmark food safety legislation, which contains several important provisions designed to improve our nation’s food safety and help bolster consumer confidence in the food supply.”
Opponents, as well as those who have expressed reservations about some of the legislation’s provisions, continue to push for changes and clarification. Chief among those issues are concerns about the impact of certain requirements, including registration fees, on small farms and operations.
Rep. Diana DeGette, D-Colo., a co-sponsor of the bill, says that small-scale and organic farms that sell “directly to consumers, restaurants or grocery stores” would be exempt from the regulations. Smaller food processing operations would not have to register with the FDA or pay annual fees.
Opponents also argue that the bill does not cover animal products, which are regulated by the USDA.
Russell Libby, executive director of the Maine Organic Farmers and Gardeners Association in Unity, Maine, says the House made “some big improvements” but questions remain.
“The bill is really good if you’re a pure processor,” he says. “But there are farms that are doing all these things on a much smaller scale. The big thing is who’s covered? The concern is really around this definition of a ‘facility.’ Some small operations are farmers, processors, wholesalers and retailers all in a day’s work.”
For example, Libby points to farmers in New England who make maple syrup and wholesale it to retailers. He suggests a minimum sales threshold before an operation falls under FDA jurisdiction: for instance, small-scale family farms with less than $200,000 in annual sales and a small number of employees.
“The bill needs a sense of scale,” says Libby, who plans to press for more strict definitions in the Senate version.
What is the Food Safety Act?
The Food Safety Enhancement Act is one of a handful of proposals in the House and Senate this year. The Food Safety Modernization Act addresses the confusing mix of federal agencies regulating the food industry by creating a separate Food Safety Administration under the Department of Health and Human Services and renaming the FDA the Federal Drug and Device Administration. That legislation, however, has not made its way out of a Senate committee.
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