The Senate passed the food safety bill (S. 510) by a vote of 73-25.

Like the House bill passed last year, the Senate bill would give the Food & Drug Administration (FDA) broad new authorities to issue mandatory recalls of suspected contaminated foods, increase the frequency of inspections for food facilities, and standardize information collected on food products to improve the agency’s ability to trace the history of those linked to outbreaks of food-borne illnesses. The FDA also would gain access to records of domestic food facilities in emergencies and would be empowered to bar importation of high-risk foods if the products lacked proper certification or if US inspectors were denied access to processing facilities.

Agricultural groups, including the NCC, successfully worked for a Senate bill that was significantly less onerous than the House bill. For example, the Senate bill does not include registration fees, focuses inspections on high risk operations, and concentrates on fruit and vegetable production.  Cottonseed and cottonseed products would fall under the bill as food and feed products but, because of an exemption for commodities, the Senate version’s requirements would be no more than what is already required under the Bioterrorism Act.

The final Senate bill also includes a controversial amendment pushed by Sen. Tester (D-Mont.) that exempts from the new FDA regulations small producers who sell directly to consumers within a 275-mile area and average less than $500,000 in annual sales. The exemption could be rescinded for any producer or processor involved in an outbreak of food-borne illness.

Sen. Chambliss (R-Ga.), the ranking member of the Agriculture, Nutrition and Forestry Committee, was an original cosponsor of the bill but opposed final passage, contending that the Tester amendment would not provide similar exemptions for cotton producers also selling smaller quantities of food. Those farms often earn much more from their cotton crops than they do from their smaller food operations and would exceed the threshold in the Tester amendment.

The United Fresh Produce Assoc., an early supporter of the bill, and 19 fruit and vegetable groups also oppose the Tester amendment saying that exemptions based on size and geography undermine the legislative goal of strengthening US food safety.

The bill hit a Constitutional roadblock within hours after the Senate passage. The Ways and Means Committee flagged provisions that would levy fees for re-inspecting food facilities, for mandatory recalls, for registering food importers and for accreditation of third-party auditors that certify whether companies are meeting regulations. The fees were determined by the House Parliamentarian to be taxes, and any new legislation involving new taxes must originate in the House.

Under normal procedures, the House would send the bill back to the Senate without action under a process known as “blue-slipping.” House Majority Leader Hoyer (D-Md.) said, “It has to be a House bill because it has revenues in it. That is a constitutional requirement.”

House Democratic leaders are reportedly exploring ways to solve the constitutional problem so the legislation can move. Rep. Hoyer said one solution would be to pass the text of the Senate bill under a House bill number. His office stressed that is just one option under consideration and that no decision had been reached on the process moving forward.

If the House adopts this tactic, the bill would have to go back to the Senate for another vote where it will face further hurdles. All 42 Republican senators sent a letter to Senate Majority Leader Reid (D-Nev.) vowing to vote against bringing any legislation to the floor before the government has been funded for FY11 and Congress deals with the expiring Bush tax cuts.