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House Committee Moves Forward On Food Safety Legislation

FDA would gain new enforcement powers; Some see problems

By Martin H. Bosworth and Mark Huffman
ConsumerAffairs.com

May 29, 2009

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The House Energy and Commerce Committee has issued a draft of the Food Safety Enhancement Act of 2009, a legislative response to high profile food recalls over the last few years. The legislation, if it becomes law, would grant the Food & Drug Administration (FDA) more enforcement power to investigate food producers, and track and recall unsafe food products.

The draft is largely based on the food provisions of H.R. 759, the Food and Drug Administration Globalization Act of 2009, introduced in January. Some of the proposed new powers for the FDA include:

• Creation of a registry of all food facilities and importers serving Americans, which would be updated on an annual basis. Affected parties would pay fees to be included in the registry, and would be tagged with unique identification numbers for easier tracking.

• Registered facilities would pay an annual fee of $1,000 to fund FDA oversight, including inspections, recalls, and certifications for export of food to the U.S.

• The FDA's powers to "quarantine" potentially unsafe food or products from entering geographic areas would be enhanced.

• The FDA would issue regulations requiring every company in a food produce chain — including manufacturers, processors, and transporters — to maintain records for the origin and distribution of the food, and ensure the records are usable and transferable in multiple formats.

• Enhanced safety requirements for infant formula.

• New authority to subpoena records and protect whistleblowers in case of alleged violations of the law.

"The current state of our food safety system is dangerous not just for the American public, but also for the food industry itself," said Rep. Henry Waxman (D-CA), Chair of the Energy and Commerce Committee. "This bill recognizes that the hallmark of strong food safety legislation must be a shared responsibility for food safety oversight between FDA and industry. This legislation will go a long way toward restoring Americans' confidence in our food supply."

Concerns raised

Jill Richardson, a food safety activist and author of "Recipe for America: Why Our Food System Is Broken and What We Can Do to Fix It," told ConsumerAffairs.Com that she generally supports the bill, but sees some potential problems.

"It does not have any requirement for companies to do microbial testing for pathogens and then report positive results to the FDA. That's a big omission," she said.

Richardson added that small businesses should be exempt from the $1,000 user fees, as it might cause them financial hardship while larger farms and agribusinesses would not be affected. "Why should a tiny jam operation pay the same amount to the FDA as an enormous corporation like General Mills?," she wrote.

"Rather than having the FDA's financial well-being be tied to the industry it regulates, why not just fund them with taxpayer dollars? Food safety is a part of the common good. We all eat, we all need safe food," she added.

Richardson told ConsumerAffairs.Com that the bill would likely pass, due to the bad publicity food suppliers suffered during the massive recall of peanut products tainted with salmonella earlier this year.

Currently, responsibility for food safety is shared primarily by two federal agencies — FDA and the Food Safety and Inspection Service (FSIS), an agency of the U.S. Department of Agriculture (USDA).

The Committee has scheduled a legislative hearing for June 3, 2009. The draft legislation and a summary are both available on the Energy & Commerce Committee Web site.

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