On November 19 the Senate Health, Education, Labor and Pensions (HELP) Committee unanimously passed the FDA Food Safety Modernization Act (S. 510) originally introduced in March, 2009. The approved bill was a Chairman's mark of a bill authored by Sen. Dick Durbin (D-Ill.) that corrected a number of technical issues and made some changes.

NCA worked closely with other trade associations in drafting proposed language regarding traceability and the adoption of a risk-based approach to inspection that recognizes the important role played by states and competent foreign authorities, in addition to proposals giving the FDA stronger enforcement powers.

Like its House companion passed in July, S. 510 would grant the Food and Drug Administration (FDA) authority to oversee everything from food production and processing to distribution and retail, and to ensure that imported food meets U.S. safety standards. One area where the bills differ is in that the Senate bill does not include a yearly fee to help pay for the increased oversight.

Some of the revisions made by the HELP committee include the following:

• Traceability. The amended bill contains a new section requiring FDA to establish a pilot project for tracing processed food. In addition, the bill contains new language specifying that when establishing tracing requirements for produce, FDA may only require farms to provide distribution records that are kept in the normal course of business and that show the immediate subsequent recipient, other than a consumer.

• Testing. Using language similar to the House bill, the amended Senate bill would require food facilities to verify that the preventive controls are working, "including through the use of environmental and product testing programs and other appropriate means." In addition, the bill contains new language allowing FDA to decide that it does not want to receive certain test results directly from accredited labs, if such reporting would not protect the public health.

• Accreditation. The bill would require FDA to recognize accreditation bodies that accredit third-party auditors to certify facilities as meeting the requirements of the Act. If FDA has not recognized an accreditation body within one year of enactment, the agency would be authorized to directly accredit third-party auditors.

• Fees. The bill clarifies that fees assessed for recall-related activities only would be imposed against those facilities that do not comply with a mandatory recall order.

• FDA Website for Food Recalls. FDA would be required to publish on the web a picture of a recalled food. In addition, the agency would be required to establish a web-search engine to allow consumer access to information regarding a food that is subject to a recall.

Now that S. 510 has been approved by the HELP Committee, it will next be considered by the full Senate. Prior to and during the floor debate, the bill could be revised. The expectation is that S. 510 will be passed by the Senate with some further amendments, still undetermined. After Senate approval, members from the House and Senate will conference to work out any remaining differences between the two bills.

Each chamber will then approve the negotiated bill and send the legislation to President Obama for his signature, which he is expected to sign. Chairman Harkin has been quoted as saying that with healthcare still unresolved, it would be difficult for the full Senate to complete consideration on food safety by Christmas. Therefore, it looks like final Senate action and a conference with the House will not likely occur until sometime next year.

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