Senate food safety legislation was on a fast track for passage in the lame duck session Nov. 18, but complications with the bill have delayed further debate until Nov. 29.

A revised amendment by Sen. Jon Tester, D-Mont. (see below), to exempt smaller operations from some requirements under the legislation was included in the final bill presented for debate. The Senate took up debate on the bill Nov. 18 but then voted late in the day to resume debate the week of Nov. 20.

Both national produce trade associations and 17 other fruit and vegetable industry groups said Nov. 18 they were forced to oppose the Senate food safety bill because of the Tester language being folded into the main bill.

“This is unacceptable to us,” said Robert Guenther, senior vice president of public policy for the United Fresh Produce Association, Washington, D.C. “It is unfortunate this amendment is fundamentally undermining the integrity of this whole bill that is based on risk and science that we have fought hard for.”

“Food safety is not a large or smaller producer issue,” said Bryan Silbermann, president of the Newark, Del.-based Produce Marketing Association, in a member communication Nov. 18. ““We strongly urge the Senate to strip this provision from the bill or, failing that, to reject the bill,”

Tom O'Brien, the Washington, D.C., representative for the Newark, Del.-based Produce Marketing Association, said Nov. 19 said he hoped produce opposition may cause Senate leaders to reevaluate the Tester language.

While the bill was earlier considered likely to be passed because of a favorable 74-25 cloture vote, O’Brien said there are wild cards associated with the bill including a Republican attempt to attach an anti-earmark spending amendment, the Tester exemptions and other issues.

The Tester amendment does not appear to be a significant departure from what was suggested initially, said Kam Quarles, director of legislative affairs for Washington, D.C.-based McDermott Will & Emery law firm.

Quarles said there are loopholes in the language, including how operations may opt out of federal regulation by saying they comply with local and state food safety laws when those laws may not even exist.

He said the amendment allows the exemption from regulation to be withdrawn from an operation if there is a food safety outbreak linked to one of the facilities.

“Sadly, it is a little like closing the barn door after the horses have gotten out,” he said.

“The overriding issue is that this is what happens when you get down to the end of the session and focus shifts away from the policy and on to the deadline,” Quarles said.

Others still supported the legislation. Ferd Hoefner, policy director for the National Sustainable Agriculture Coalition, Washington, D.C., said coalition supports the compromise Tester language.

Sandra Eskin, director of the Food Safety Campaign with The Pew Charitable Trusts in Washington, D.C. said the campaign doesn’t embrace the Tester compromise but the group won’t oppose it in the interest of getting food safety legislation passed. “We really, really want this bill to pass.”

Tester amendment – Qualified exemptions

Food facilities would qualify for an exemption from the preventive control/Hazard Analysis Critical Control Point provisions in section 103 of S. 510 if:

  • They are defined as a “very small business” under FDA rule making or under certain conditions:
  • the average annual monetary value of all food sold by the facility during the previous three-year period was less than $500,000, if the majority of the food sold by that facility was sold directly to consumers, restaurants or grocery stores in the same state or within 275 miles of the facility.

Source: Senate Health Committee

UPDATED: Senate food safety debate delayed