The FDA Food Safety Modernization Act had more twists and turns than a big-city sewer system. Unexpected passage of the legislation at the very end of the lame duck Congress does not bring the story to a close. The fight goes on.
Regulations will need to be developed, which the FDA will try to do out of sight, but which we will monitor closely. The FDA will need funding to do the work, which means more legislation. And there may be other legislative opportunities to help pull back this seeming victory for agribusiness, factory faming, and its allies in Washington.
We have to keep educating Capitol Hill about the dangers of CAFOs, the main source of food contamination, and about the benefits—both to our health and our economy—of small farmers and especially local organic farmers. We need, in short, to keep the government from destroying what’s best about agriculture in this country. Big Food may have won this round, but they have most certainly not won the war.
Before we turn to the future, it’s also worth reviewing the story of what actually happened with this legislation. There has been a great deal of confusion about what took place, and it’s important to set the record straight. We also need to remember that natural health and family farming won some concessions along the way, concessions that kept this legislation from being far, far worse than it is. All of these concessions were won by a broad coalition of tireless health freedom advocates, while some of them-especially in the areas of potential CODEX regulation and supplements-were won specifically by ANH-USA, and we’re proud of those accomplishments. This is more proof that when we all work together, we can move mountains.
Here’s the full timeline:
March 2009: Senate introduces FDA Food Safety Modernization Act (S. 510). The bill languishes in committee for nine months, then is placed on the Senate’s legislative calendar.
June 2009: House introduces Food Safety Enhancement Act of 2009, or FSEA (H.R. 2749). Bill was designed to completely revamp the FDA and grant expansive authority with no oversight and contained provisions of significant concern to small farms (especially organic farms), small food producers, and supplement makers, including sharply increased criminal and civil penalties for violations of FDA regulations—up to ten years in jail and fines of up to $100,000 for individuals and $7.5 million for corporations, regardless of their size—just for making completely true statements about a food or supplement or referring to peer-reviewed science without prior FDA permission.
The bill was put on a fast track, and ANH-USA sprang into action. We placed a full-page ad in Roll Call, the Capitol Hill newspaper, calling on Congress to amend the bill. We also printed up copies of the ad, and had them hand-delivered to each congressional office. Our members deluged Congress with messages and phone calls. Unfortunately, the House passed the bill by a vote of 283 to 142.
November 2009: The original language of the Senate bill appeared to commit the US to the concept of harmonization of our food and supplement safety laws with a global standard, the Codex Alimentarius. The global standard is very likely to reflect European standards, which are extremely hostile to dietary supplements. ANH-USA was able to get the bill amended so that it no longer requires the development of a plan to harmonize with Codex; now the bill calls for a plan “on whether and how” to harmonize.
April 2010: Still concerned that the inclusion of Codex language in the bill could be used to support future US harmonization with Codex standards on dietary supplements, ANH-USA succeeds in getting new language that specifically exempted dietary supplements from US harmonization with Codex. In addition, while we did not work on this aspect of the issue ourselves, we were very pleased to see that supplements were also exempted from the “hazard analysis and risk-based preventive controls” section of the bill.
September 2010: Noting that the Senate’s version of the bill didn’t have the extra-harsh penalties of the House bill, Sen. Leahy introduced a new bill, the Food Safety Accountability Act, or FSEA (S. 3767), which used language similar to that found in the House bill. Even worse, the bill would not necessarily hold accountable a company that tainted a product, even on purpose, if this type of adulteration occurred before the product was sold by a distributor. So much for “accountability.”
Once again, ANH-USA and its allies acted quickly and mounted a protest, and succeeded in getting the Leahy bill amended so that it would no longer be possible to use the bill’s language to send a supplement producer to jail for ten years just for citing legitimate science.
November 2010: One of the Senate bill’s big sticking points was how it would affect small farmers and food producers. Some small-farm and organic food advocates warned that the legislation would destroy their industry under a mountain of paperwork. Working with the natural health community, ANH-USA succeeded in winning inclusion of an amendment from Sen. Jon Tester (D-MT), which exempts from some of the bill’s provisions any producers with less than $500,000 a year in sales who sell most of their food locally.
Still concerned about the language in the Leahy bill, we kept up the pressure, and thanks to all the phone calls, letters, and email messages that you sent to your senators, we were told that the FSEA language would be kept out of S. 510 entirely.
In addition, the House agreed that if the Senate’s bill passed, the House would accept the Senate’s version in place of its own. The House bill was far, far worse, and contained the ten-year jail terms—so this meant that ten-year jail terms should not be in a final Food Safety bill.
On November 30, the Senate bill passed 73 to 25, and sent it on to the House for approval.
December 1: The House rejects the Senate bill because it contains a revenue-raising (i.e., taxing) provision. The Constitution requires all revenue-raising provisions to arise from the House.
December 10: House passes a Continuing Resolution, which is supposed to provide temporary, stopgap funding for the government while budget bills are worked out. But this CR included the language of the Senate food safety bill. The CR is sent to the Senate for approval.
December 14: Sen. Inouye attempts to get an omnibus spending bill substituted for the CR. While we were told originally that the food safety language would not be part of the omnibus bill, it appeared that a deal was struck to include food safety.
December 17: A number of senators, mainly Republicans, decide to support neither the omnibus bill, which contained a lot of “pork” (funding for local projects with little or no national significance) nor the CR from the House, but instead wanted a one-page CR that would keep the government open for the next two months. This left the food safety bill once again out in the cold.
December 19: At 10 p.m. on a Sunday night, in one of the most underhanded legislative maneuvers we’ve ever seen, senators took an old House bill that had been languishing on the legislative calendar for a year and a half, removed all of its text and completely substituted the text of S. 510, then changed the title. What had been the Consumer Assistance to Recycle and Save Act was now the FDA Food Safety Modernization Act with a new number, H.R. 2751. It was identical in every way to the old S. 510, except that this was now technically a House bill, which got over the earlier constitutionality issue. This was agreed to in the Senate by unanimous consent, and the bill was sent back to the House.
Note that twenty-five senators who had previously voted against the bill were part of the unanimous consent agreement. Even one of them could have denied unanimous consent, in which case the bill would most likely have died. These senators were also participating in a legislative trick that made a mockery of the Constitution.
December 21: After less than an hour of debate, the bill passed in the House, 215 to 144. This included Yes votes from legislators who had been voted out of office in November, but who were making one last use of the “lame duck” session—something the 20th Amendment to the Constitution was trying to prevent when it was originally enacted. Seventy-four members of the House had already left for the winter break and did not vote.
Henry Waxman, still chair of Commerce Committee during the lame duck session of Congress and an arch foe of natural health and health freedom, famously said that nothing is ever settled for good in Washington. We can’t help but agree with him when it comes to the botched Food Safety Act.
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