The Food Safety Modernization Act still enjoys bipartisan support, but several unresolved issues could complicate its fate in the Senate.

Amendments that seek to exempt smaller operations from the legislation will be strongly opposed by the United Fresh Produce Association, said Robert Guenther, senior vice president of public policy for Washington, D.C.-based United Fresh.

That is not the only roadblock for the bill.

An amendment to the bill by Sen. Diane Feinstein, D-Calif., that would ban the chemical BPA in plastic food containers drew opposition from the food industry and negotiations were ongoing to resolve the issue as of May 8, said Kelli Ludlum, director of congressional relations for the Washington, D.C.-based American Farm Bureau Federation,

The Senate will begin debate on the bill no sooner than the week of May 17, Ludlum said.

Another unresolved issue is whether indemnification for growers and recall reporting will be included in the bill.

Sens. Kay Hagan, D-N.C. and Blanche Lincoln, D-Ark., are working language to provide for accountability for FDA on behalf of growers without slowing down FDA public health priorities, Ludlum said.

Meanwhile, Sen. Sherrod Brown, D-Ohio, is working on a traceability amendment to the bill, Ludlum said.

Guenther said he believes there will be a provision added to the bill about traceability but added that the scope of the language is not clear.

“The question right now is where traceability starts,” Guenther said.   “Does it start on the farm, the warehouse, the processing facility? That’s the big contentious point right now.”

Kate Fitzgerald, senior policy associate with the Washington, D.C-based National Sustainable Agriculture Coalition, said in an e-mail that the coalition has been working with Brown’s office on the amendment.

Fitzgerald said Brown’s amendment is expected to take into account the fact that famers who sell direct to consumers don’t need to have the same traceability requirements as larger growers.

Brown hasn’t released any language of his amendment, but Ludlum said the amendment is expected to impose tougher traceability demands on the food industry than the pilot projects currently in the Senate bill.

“Whatever he does will be more robust, for better or worse, than what is in the bill,” Ludlum said.

Small print

Ludlum isn’t sure whether there will be significant support for amendment by Sen. Jon Tester, D- Mont., to exempt operations with adjusted gross incomes under $500,000 from some requirements under the legislation.

Guenther said there is no doubt about United Fresh’s position.

“We strongly oppose any type of exemption based not on science but where or how you grow your food,” he said. “There is no scientific basis for that.”

In mid-April, Tester announced he will advance an amendment to the food safety bill when it comes before the Senate. The amendment states that producers who add value to food through processing and whose adjusted gross income is less than $500,000 per year will only be subject to state and local regulation, not, according to a news release from Tester’s office,  “new expensive federal regulations designed for industrial food factories,”

“Personally, I think it is a little bit difficult to argue that food is safer just because of a size issue,” Ludlum said.  “I don’t know if that one passes muster with the consumer groups.”

While there are other risk factors that could be used to make similar arguments, relying on the $500,000 threshold alone is a problem, Ludlum said. “That’s a tough sell in my opinion.”

Fitzgerald said Tester’s amendment is an improvement over current conditions, since there are no government statistics or database of growers who sell directly to consumers.

A better approach, according to Farm Bureau, is to make sure the overall bill doesn’t put anybody out of business by addressing food safety in a way that both large and small produce growers can comply.

However, the amendments have strong appeal among smaller growers, Ludlum said.

Joe-san Swann, partner with Swann Farms, Owings, Md., said there are many start-up growers in Maryland and hobby farmers who won’t have the means to comply with the food safety legislation.

Ludlum said the differences between the House and Senate food safety bills may make the conference process of unifying the bills a little harder than some people believe.

“The House bill is more prescriptive, while the Senate bill takes into account what the industry is already doing, she said.

Ludlum said Farm Bureau hasn’t taken a position on the Senate food safety bill, in part because the manager’s amendment isn’t done and issues remain unresolved.

Guenther also said United Fresh will wait to make a judgment on the bill until after the amendments are sorted out.