Food Legislation stalls due to constitutional disputes

By Leischen Stelter -  12.07.2010

WASHINGTON—The security of the nation’s food supply took a step forward on Nov. 30 with the U.S. Senate’s passage of the long-stalled bill to modernize food safety programs at the U.S. Food and Drug Administration. However, the bill immediately faced problems when it was discovered that one section of the bill could violate a constitutional provision that calls for any new taxes to originate in the House rather than the Senate, according to The Washington Post.

The House Ways and Means Committee is currently deciding whether or not fees imposed on importers, farmers and food processors for recalls due to contamination are the equivalent to taxes. If so, it would essentially nullify the vote by the Senate. Despite these conflicts and the now uncertain outcome of this bill, there are important measures included that could impact the way food processing plants are secured.

The Food Safety Modernization Act (S.510) is a $1.4 billion bill, among other requirements, would require food producers to develop written food safety plans that would be accessible by the government in case of emergency along with the implementation of a food-tracing system. Eileen Harley, director of federal affairs for the Grocery Manufacturers Association, which has been working on this legislation for the last three years, said that this component of the bill shouldn’t cause many challenges for companies. “Most food manufacturers already have food safety plans in place, but instead this will raise the bar for the whole industry,” she said.

One of the good things from this legislation is that it defines the term “food defense,” said Bill Ramsey, a member of the ASIS Agriculture and Food Security Council, and the bill differentiates between food safety and food defense. “Food safety refers to the science behind protecting food products against unintentional contamination, whereas food defense regards the security that protects products against purposeful contamination,” said Ramsey, who is also the corporate security director at McCormick’s.

In terms of physical security requirements of the bill, Ramsey said the council hopes the legislation will set goals for securing food manufacturers instead of establishing specific standards for equipment. “The legislation should focus on what is needed to achieve food defense rather than the specific tools to achieve it,” he said. Because the industry is so large and diverse, it would be hard for everyone to comply with strict equipment requirements, for example. Large manufacturers may be able to install video surveillance and access control systems because they have more financial prowess, but that’s not true for small- to medium-size producers. “The small manufacturer can’t spend an enormous amount of money on physical security measures and find a different way to achieve the same goals,” he said.

Harley with GMA said that the language in the bill provides flexibility for different size companies. “There’s a lot of flexibility in the bill when it comes to risk analysis, and of course, every food producer is different, but the bill grants flexibility around the construction of food safety plans and what preventative measures they need to put in place,” she said.

However, something that isn’t in the bill is an effort to consolidate requirements as established by the FDA and United States Department of Agriculture (USDA). “Many companies in the industry are regulated by both and there are separate guidelines and plans,” he said. The other challenge is that different companies approach meeting these guidelines differently and some view guidelines more as regulations while others consider them voluntary or suggested guidelines.

And while it is yet to be determined what the final outcome of this bill will look like, Ramsey said it’s important for the industry to adopt a wait-and-see attitude. “Not that we should not continue to build security programs as we know it, but before we start coming up with mass program changes for the industry we need to see what direction the FDA will take,” he said.

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