Controversy Surrounds the Food Safety Modernization Act of 2009 (HR 875)

In addition to this, the Obama Administration has requested $260 million for FDA food safety activities in fiscal year 2010, which begins Oct. 1, 2009. This amount includes $94.4 million in new user fees to register food facilities and increase food inspections, issue food and fee export certifications, and reinspect food facilities that fail to meet safety standards.

Combined with the $500 per facility annual fee, industry user fees would total $375 million annually, an amount that would “sadly not be adequate to implement the portfolio of activities laid out in the [draft] legislation,” FDA Commissioner Margaret Hamburg told the House subcommittee in June.

The food industry and some Republicans are not convinced of the need for additional fees. “We are not opposed to all fees,” said Pamela Bailey, chief executive of the Grocery Manufacturers Association, in prepared congressional testimony in June. “We are concerned about the size and purpose of the significant new fees proposed in the discussion draft. … We are concerned that a broadly applied fee to finance basic FDA functions, including inspections and enforcement, creates an inherent conflict of interest that will erode, rather than improve, consumer confidence.”

A Question of Turf

Granting the FDA sweeping new inspection and enforcement authority could raise jurisdictional questions as long as food safety oversight is shared with other agencies. This is where Rep. DeLauro’s bill might help.

The new FSA, which would be part of the Department of Health and Human Services, would assume authority and responsibility for managing the food safety programs, budget, and personnel formerly attached to the FDA, as well as the surveillance and investigation of foodborne illnesses currently conducted by the CDC. (The bill does not address transferring the USDA’s meat and poultry responsibilities.) The FDA would be renamed the Federal Drug Administration and would be responsible for regulating drugs, medical devices, and cosmetics.

Many consumer groups, major food-related trade associations, and large food producers support HR 875’s goals. “Ensuring food safety is the highest priority of our industry,” said Kirstie Foster, corporate public relations manager at General Mills. “We expect reform will encompass both greater authority and greater capacity to strengthen our overall ability to prevent and respond to food safety issues nationally,” she told Food Quality in an e-mail response to questions about HR 875.

Kraft Foods “supports the requirement for comprehensive food safety plans so that every manufacturer will take a preventive approach to identifying and evaluating potential hazards,” said spokesperson Susan Davison. But breaking apart FDA to create two separate agencies “would require a significant up-front investment and an ongoing increase in operating funds,” she told Food Quality. “Whether the money would be better spent for activities that directly affect food safety is an important consideration. We support constructive debate on this subject,” she added.

Like the Food Safety Enhancement Act emerging in the House, Rep. DeLauro’s bill would make food producers responsible for health hazards in their operations, would meet federal standards for preventing or removing contaminants and pathogens from food, and would be subject to regular inspections by federal officials based on the risk profiles of their products. Should prevention fail, the FSA could order recalls, seize unsafe food before it enters the market, and impose fines of up to $1 million per offense per day. According to the bill, “the person” who commits a violation “with respect to adulterated or misbranded foods” shall be imprisoned for up to five years in case of “serious illness” and up to 10 years in case of death.

“The intent of this legislation is to make sure that large industrial food processors, such as the peanut processing plant in Georgia that was responsible for the Salmonella outbreak that killed nine people, do not produce unsafe foods,” Rep. DeLauro said.

Controversy Abated But Not Gone

Controversy over the DeLauro bill has abated but not disappeared, with organic farming and natural foods proponents acknowledging that earlier allegations were false. The Cornucopia Institute, which advocates for organic farming, and the Farm-to-Consumer Legal Defense Fund (FTCLDF), which supports raw milk production and distribution, both criticize HR 875 and other congressional reform bills for their “one-size-fits-all” approach. Provisions aimed at large-scale industrial farms and processors “would likely put smaller and organic producers at an economic and competitive disadvantage,” the Cornucopia Institute said on its Web site.