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Food Safety Bill Brought Back from the Dead

In a surprise vote on Sunday evening, the Senate passed the Food Safety Modernization Act, which now looks set to become law. But will it work?

For a lame duck session, the Senate is really cranking. This weekend brought the repeal of "Don't Ask, Don't Tell" by a majority of 65 to 31 (including a lot of Democrats who voted for it 17 years ago, but finally changed their minds) on Saturday, followed by the surprise resurrection of the Food Safety Bill on Sunday evening, with even more bipartisan support.

Formally known as the Food Safety Modernization Act, the bill has followed a particularly tortured path through the legislative process. The House passed its version a year and a half ago, in July 2009. Wrangling about the potential impact of the proposed regulations on small food producers, filibuster threats, and other business kept the Senate from passing their own bill until November 2010.

Two weeks ago, Democrats admitted there was a small problem. The Senate's inclusion of a provision that would allow the FDA to impose fees on companies whose food is recalled meant that the bill was a revenue-raising measure, and according to the U.S. Constitution, all revenue-raising measures must originate in the House.

Politicians, journalists, and activists alike had given up the bill for dead, and the Sunday evening announcement that the Senate had unanimously passed it was met with universal surprise.

The Food Safety Modernization Act is the first significant update to food safety legislation passed in 1906, the same year that Upton Sinclair's novel The Jungle exposed horrifying conditions in Chicago's meat-packing plants. It finally gives the FDA the authority to recall contaminated products (at the moment, all recalls are voluntary), and mandates the creation of a national food tracing system, to streamline the process of finding an outbreak's source.

But although some food safety advocates are happy this morning (among them New York University professor Marion Nestle and Bill Marler, publisher of Food Safety News), others see the bill as ineffective or even downright misguided.

The massive recalls of recent years (including 380 million eggs this summer alone) certainly revealed the weaknesses of a food system in which one burger can contain parts from 100 or more different cows, as well as the FDA's limited resources—for example, agency inspectors had never visited Jack DeCoster's insanitary factory farms in Iowa, despite repeated warnings by public health officials.

However, while the new bill includes funding to hire more inspectors, it also puts the food safety focus on paperwork, requiring producers to submit risk assessment and implement Hazard Analysis & Critical Control Points (HACCP) safety plans. These monitoring and management requirements actually favor larger, industrial-scale operations, whose volume of business makes the increased burden of compliance affordable—and yet it is precisely this kind of consolidation that creates the conditions for such large-scale outbreaks to happen in the first place.

In short, then: will the passing of the Food Safety Modernization "protect American families from encountering contaminated food," as Harry Reid promised? No, but it's still better than nothing. As my colleague Peter concluded when the Senate first passed this bill last month:

Small may be beautiful and small may eventually lead to a paradigm shift, but the most important thing to remember about any food safety bill is that it should reduce levels of illness and death. To do that, we’ve got to take on the 99 percent of farms and food producers that are causing illnesses and right now, unfortunately, they are not on the fringe. They're consistently the country’s largest food producers.


IMAGE: Scanning electron micrograph of E. coli, via Rocky Mountain Laboratories, National Institutes of Health.

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