Food Safety Enhancement Act of 2009 Passes House of Representatives with Lofty Goals and an Indeterminate Price Tag for Food Producers
August, 2009
On July 30, 2009, the U. S. House of Representatives passed sweeping legislation to strengthen and reform federal oversight of the nation's food supply. The bill, HR-2749, is titled the "Food Safety Enhancement Act of 2009." First, the bill requires yearly registration for domestic and foreign facilities that export food to the United States. Beginning in 2010, the bill provides that registered facilities must pay $500, not to exceed $175,000 for multiple facilities. These fees are designed to offset the cost of various mandates in the bill, which include inspections and other food safety-related activities.
Under the bill, the level of oversight and enforcement for any given facility would be determined through a risk-based rating system. For example, a category 1 facility (high risk) would be inspected every six to 12 months, a category 2 (low risk) facility would be inspected once every 18 months to three years. Inspections could occur more frequently, depending on the type of food and the facility's compliance record.
The bill imposes certain recordkeeping requirements on registered facilities and establishes a tracing system for food producers who distribute their products in the United States, whether the product is of domestic origin or is imported.
The bill requires finished-product testing for category 1 facilities that must be submitted to the Secretary of Health and Human Services. In turn, the Secretary of Health and Human Services ("HHS") will review the finished product results and conduct whatever epidemiological research her office deems appropriate based on those test results. The bill requires that the laboratories conducting such testing be certified and regularly audited.
The bill further provides the HHS Secretary with the power to order a recall of any food that she deems unsafe. The bill requires producers of infant formula to maintain records and provides for clinical studies to verify that any given formula has nutritional benefit for infants. The bill even requires the HHS Secretary to report to Congress regarding the use of Bisphenol A ("BPA") in food and beverage containers.
In promoting a potentially dramatic reorganization of federal regulation of the nation's food supply, the bill provides for coordination of food-borne illness surveillance between federal, state and local food safety systems, as well as the implementation of a national public education program on food safety.
The bill provides for enhanced criminal and civil penalties for violations of the Act and protects employees of food producers who either refuse to violate the Act or who report violations of their employer to authorities.
The bill would not affect food products such as meat, poultry and eggs, if the farm or facility that produces such products is regulated exclusively by the USDA. Also, the bill exempts a number of other types of facilities, such as alcohol-related facilities, private residences of individuals, restaurants, other retail food establishments, and non-profit food establishments in which food is prepared for or served directly to the consumer. The exemption for "retail food establishments" includes grocery stores, convenience stores, vending machines, and stores that sell pet food. Pet food is generally exempt from the current bill.
There is no question that Americans expect their food to be safe. For decades, ours has been among the safest food supplies in the world. This bill was undoubtedly motivated by recent high-profile outbreaks of food-borne disease arising from such products as ground beef, peppers, spinach, peanut butter, and even cookie dough. Unfortunately, this bill's ambitious goals may prove unworkable, both from a government organizational standpoint and from an economic and logistical standpoint on the part of food producers. For example, the bill's goal of coordinating federal, state and local health systems in order to better track food-borne illness data and response is a great idea. However, such an integration could, by itself, carry a significant price tag for each level of government.
For food producers that will be subject to the Act, the cost to comply with the bill could far exceed the registration fees currently contained in the bill. For example, the bill provides the HHS Secretary the power to establish "scientific-based regulations" for growing, harvesting, processing, packing, sorting, transporting, and holding raw agricultural commodities while, at the same time, taking into consideration wildlife habitat, conservation practices, watershed protection efforts, and organic production methods. These requirements could put food producers, both large and small, in a difficult financial position should they be required to install new equipment in existing facilities in an already troubling economic climate.
It will be interesting to see how the Senate reacts to this bill. Stay tuned for further Bullivant e-alerts on this significant and developing legislation.
A complete copy of HR-2749, as passed, can be found by clicking on the hyperlink PDF below.
HR 2749 EH PDF.pdf