The Senate surprised many by passing the Food Safety Modernization Act Dec. 19. For this updated coverage, see Senate passes food safety bill in Sunday surprise.

Prospects for food safety legislation appeared dim Dec. 17 after the Senate failed to pass the omnibus spending bill.

If the Food Safety Modernization Act is not included with a continuing resolution by Dec. 18, it would mark the end of the line for the legislation, observers said. Even though the Senate food safety bill passed that chamber by a wide margin in November and its counterpart passed the House of Representatives in July 2009, inclusion of a tax provision invalidated the Senate bill and the House was forced to send the bill back to the Senate in the lame duck session.

“I think at this point it is safe to say the bill is dead,” said Seattle-based food safety attorney Bill Marler on Dec. 17.

Still, there remained a small chance for the Senate to deal with the bill in another way.

“Legislative schedules have been changing from hour to hour,” Kam Quarles, director of legislative affairs for Washington, D.C.-based McDermott Will & Emery law firm.

Quarles said there was an effort ongoing to tack the food safety bill to the continuing resolutions, but it was uncertain if Republicans would object and derail the effort.

Officials with the Newark, Del.-based Produce Marketing Association and the Washington, D.C.-based United Fresh Produce Association could not immediately be reached for comment. PMA and United Fresh both opposed the food safety legislation because of the 11th-hour inclusion of provisions exempting small operators from some of the law’s food safety requirements.

Even though the FDA is writing produce safety regulations, Marler said the agency won’t have the funding to conduct more inspections and to enforce rules.

“I think ultimately it will be up to industry to do their own self-policing,” he said. “I think unfortunately I am going to be as busy as ever.”

Is food safety legislation dead?