Personal Injury Law

The Tester - Hagen Amendment to S. 510 protects food safety and small farmers

By Bill Marler, Esq.

It is long past time to pass S. 510, The Food Safety Modernization Act, with Senator Jon Tester's (D-MT) and Senator Kay Hagan's (D-NC) amendment to S. 510 folded in – at least after the election in the lame duck session.

I have been struck in the last dozen years as I have wandered the halls of Congress, pushing one food safety bill or another, testifying or supporting a testifying client, how these quotes continue to ring true:

'Laws are like sausages, it is better not to see them being made.' Bismarck

'The perfect is the enemy of the good.' Voltaire

I think that for anyone who has read and followed this legislation (S. 510) cannot disagree with Bismarck or Voltaire. Some see the passage as a way to reduce foodborne illnesses to zero and others see the legislation as the end of the world as we know it. It has clearly been a process filled with hyperbole and half-truths on each side of the equation.

However, behind the scenes small farm groups and food safety advocates have come together with reasonable Senators and their staff to forge meaningful compromises that protect small farms and food safety. The Tester – Hagen amendment is one of those compromises. The amendment will offer protections for operations (a.k.a. 'qualified facilities') that make less than $500,000 a year and sell most (greater than 50%) of their products directly to consumers in the same state and within a 400-mile radius. The amendment also applies to all operations that the FDA classified as a "very small business." Small, local farmers would not necessarily need to comply with some of the requirements and produce safety regulations implemented under S. 510. Instead, these small-scale producers (like those who sell their goods at farmers' markets or roadside stands) would continue to be regulated by local and state entities. In addition, consumers would know whom they are buying from either by direct sales or clear labeling.

I think one of the most useful provisions of the amendment is the requirement of the HHS and AG Secretaries to conduct a study to determine 'the incidence of foodborne illness originating from each size and type of operations and type of food facilities… [and] … the effect on foodborne illness risk associated with commingling, processing, transporting and storing food and raw agricultural commodities, including differences in risk based on the scale and duration of such activities.' Having knowledge of what are the real risks, and how outbreaks actually happen, would allow for the sharpening or relaxing of rules that make sense. One size may or may not fit all.

The Tester – Hagen amendment may not be perfect, but it is sausage that you can eat.

Full post as published by Marler Blog on October 01, 2010 (boomark / email).