Here is the food safety language from the Food Safety Enhancement Act of 2009, which cleared the health subcommittee of the House Energy and Commerce Committee yesterday.
SEC. 104. SAFETY STANDARDS FOR FRESH PRODUCE AND CERTAIN OTHER RAW AGRICULTURAL COMMODITIES.
(a) ADULTERATED FOOD.—Section 402 (21 U.S.C. 342), as amended by sections 102(a) and 103(a), is amended by adding at the end the following: ‘‘(l) If it has been grown, harvested, processed, packed, sorted, transported, or held under conditions that do not meet the standards established under section \419A.’’.
TK: There we have it - grown harvested, packed,sorted, transported or held - that about covers everything.....
(b) STANDARDS.—Chapter IV (21 U.S.C. 341 et seq.), as amended by sections 102(b) and 103(b), is amended by adding at the end the following:
‘‘SEC. 419A. SAFETY STANDARDS FOR PRODUCE AND CERTAIN OTHER RAW AGRICULTURAL COMMODITIES.
‘‘(a) STANDARDS.—The Secretary shall establish by regulation science-based standards for the safe growing, harvesting, processing, packing, sorting, transporting, and holding of raw agricultural commodities—
‘‘(1) that are from a plant or a fungus; and ‘‘(2) for which the Secretary has determined that such standards are reasonably necessary to minimize the risk of serious adverse health consequences or death to humans or animals.
TK: Key words here "establish by regulation," "science based standards," "for which the Secretary has determined that such standards are reasonably necessary to minimize the risk of serious adverse health consequences or death to human or animals." There is much room for interpretation in all of this.
‘‘(b) CONTENTS.—The regulations under subsection
(a)— ‘‘(1) may set forth such procedures, processes, and practices as the Secretary determines to be reasonably necessary—
‘‘(A) to prevent the introduction of known or reasonably foreseeable biological, chemical, and physical hazards, including hazards that occur naturally, may be inintentionally introduced, or may be intentionally introduced, including by acts of terrorism, into raw agricultural commodities that are from a plant or a fungus; and
‘‘(B) to provide reasonable assurances that such commodity is not adulterated under section 402;
‘‘(2) may include, with respect to growing, harvesting, processing, packing, sorting, transporting, and storage operations, standards for safety as the Secretary determines to be reasonably necessary;
‘‘(3) may include standards addressing manure use, water quality, employee hygiene, sanitation and animal control, and temperature controls, as the Secretary determines to be reasonably necessary;
‘‘(4) may include standards for such other elements as the Secretary determines necessary to carry out subsection (a);
‘‘(5) shall provide a reasonable period of time for compliance, taking into account the needs of small businesses for additional time to comply;
‘‘(6) may provide for coordination of education and enforcement activities;
‘‘(7) shall take into consideration, consistent with ensuring enforceable public health protection, the impact on small-scale and diversified farms, and on wildlife habitat, conservation practices, watershed-protection efforts, and organic production methods;
TK: Notice the use of "may" and "shall." The "carve out" for small scale, diverse and organic agriculture is in place but promises nothing.
‘‘(8) may provide for coordination of education and training with other government agencies, universities, private entities, and others with experience working directly with farmers; and
‘‘(9) may provide for recognition through guidance of other existing publicly available procedures, processes, and practices that the Secretary determines to be equivalent to those established under paragraph (1). ‘
‘(c) ENFORCEMENT.—The Secretary may coordinate with the Secretary of Agriculture and may contract and coordinate with the agency or department designated by the Governor of each State to perform activities to ensure compliance with this section.’’.
(1) PROPOSED RULE.—Not later than 18 months after the date of enactment of this Act, the Secretary of Health and Human Services shall issue a proposed rule to carry out section 419A of the Federal Food, Drug, and Cosmetic Act, as added by subsection (a).
(2) FINAL RULE.—Not later than 3 years after such date, the Secretary of Health and Human Services shall issue a final rule under such section.
(d) NO EFFECT ON EXISTING HACCP AUTHORITIES.—Nothing in this section or the amendments made by this section limits the authority of the Secretary under the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 301 et seq.) or the Public Health Service Act (42 U.S.C. 201 et seq.), as in effect on the day before the date of the enactment of this Act, to revise, issue, or enforce product-and category-specific regulations, such as the Seafood Hazard Analysis Critical Controls Points Program, the Juice Hazard Analysis Critical Control Program, and the Thermally Processed Low-Acid Foods Packaged in Hermetically Sealed Containers standards. (e) UPDATE EXISTING GUIDANCE.—Not later than one year after the date of the enactment of this Act, the Secretary of Health and Human Services shall update the guidance document entitled ‘‘Guidance For Industry: Guide To Minimize Microbial Food Safety Hazards For Fresh Fruits And Vegetables’’ (issued on October 26, 1998) in accordance with this section and the amendments made by this section.