The push for S. 510, the food safety bill pending before the Senate (also known as the FDA Food Safety Modernization Act, or FSMA), has featured an unexpected coalition. Certain prominent business groups, such as the Grocery Manufacturers of America, have aligned themselves with consistent advocates for expansive government regulation, including the Consumer Federation of America and the Center for Science in the Public Interest. This bill was considered for passage in the “lame-duck” session.
Disproportionate Impact on Small Producers
A significant concern raised about S. 510 is its potential to place undue burdens on small producers. Writer Barry Estabrook, a noted critic of industrialized agriculture whose commentary on the bill appeared in The Atlantic and was cited in a post at Cato at Liberty, argued that the legislation could ultimately “make things worse.”
Estabrook’s core contention is that “the proposed rules would disproportionately impose costs upon” small entities. This includes traditional, low-tech, and organic farmers and foodmakers who primarily sell their goods to neighbors and local markets. Even producers with flawless safety records or those selling low-risk foodstuff may face crippling new paperwork and regulatory requirements. Large-scale operations, by contrast, are typically better equipped to absorb these costs as a standard part of doing business.
Concerns Regarding Regulatory Discretion and Specific Provisions
While S. 510 does incorporate language not present in earlier drafts that acknowledges the concept of tiering regulatory burdens, the effectiveness of these modifications remains a point of debate. As the Farm and Ranch Freedom Alliance has noted, most of the changes intended to be favorable to small producers are left subject to the Food and Drug Administration (FDA)’s discretion. Consequently, the ultimate impact hinges significantly on the agency’s subsequent regulatory implementation.
Further legal and practical concerns regarding the bill have been articulated. Peter Kennedy, for the Farm-To-Consumer Legal Defense Fund, which often defends producers of raw milk, has discussed specific provisions that may prove particularly burdensome to small entities. These issues include:
- HARPC (Hazard Analysis and Risk-Based Preventive Controls): A new mandate requiring food facilities to develop and implement controls to prevent known or reasonably foreseeable hazards.
- Traceability requirements.
- Increased penalties.
- Expansion of federal jurisdiction.
- New produce standards.
Kennedy also addressed the implications of S. 3767, the “Food Safety Accountability Act of 2010,” a separate measure introduced by Senator Patrick Leahy (D-VT).
Advocacy for the Measure
Conversely, proponents of the legislation defend the measure as fair, arguing that it strikes a necessary balance between ensuring public safety and accommodating small producers. An advocacy sheet, which has been attributed in some quarters to Senate staffers, defends the measure’s fairness to small farmers.
