Senate miscue may derail food safety bill

Robert Roos

Dec 1, 2010 (CIDRAP News) The chances for final passage of the broad food safety bill just approved by the US Senate appeared to dim today with the report that fees included in the bill flout a constitutional requirement that all tax measures must originate in the House.

The Capitol Hill newspaper Roll Call reported last night that fees in section 107 of the bill are technically considered taxes under the Constitution. As a result, Democrats and Republicans in the House have threatened to block the bill if Speaker Nancy Pelosi, D-Calif., tries to bring it up for a vote, the newspaper reported today.

Despite the glitch, Sen. Tom Harkin, D-Iowa, who shepherded the Senate bill, told Roll Call today that he hopes to get the legislation back on track to final passage as soon as this week But the lame-duck Congress's agenda is crowded with other pressing issues, such as extension of the Bush-era tax cuts and proposed repeal of the military's ban on openly gay members.

The Senate passed its bill, which aims to strengthen the Food and Drug Administration's (FDA's) ability to prevent food contamination, on a 73-25 vote yesterday, after months of delay. The House passed a similar but somewhat stronger bill in July 2009.

The Senate measure requires the FDA to inspect food facilities more often, empowers the agency to require food recalls, expands its access to food facility records, and requires food producers and processors to identify contamination hazards and develop prevention plans. The legislation also calls for more inspections of foreign food production facilities and requires importers to verify the safety of foreign suppliers.

The Senate legislation authorizes the FDA to charge fees for things like food recalls, food facility re-inspections, and registration of food importers. The bill does not include the House version's $500 annual registration for domestic food facilities, which is seen as an important source of revenue to help the FDA meet its expanded responsibilities.

Because of the fees, the House may "blue slip" the Senate bill, that is, pass a resolution declaring that it violates the Constitution by originating revenue legislation in the wrong chamber, according to Roll Call.

A Senate aide who requested anonymity confirmed today that the bill has a "blue slip" problem but said House and Senate negotiators were working on a solution. "We believe one is not only possible but likely and still expect to have a final bill to the president by the end of the year," the aide told CIDRAP News.

According to today's Roll Call story, Harkin said that he had spoken with Pelosi and other House Democratic leaders and that he hopes the House will pass a new version of the bill before the end of the week. But he acknowledged that Senate Republicans could filibuster the measure, which would force Senate Majority Leader Harry Reid to file cloture (a move to cut off debate) and use up several more days in Congress's lame-duck session, the story said.

The Senate bill was passed yesterday after a complex series of maneuvers to overcome the opposition of Sen. Tom Coburn, R-Okla., who regards the legislation as too costly and heavy-handed and tried to substitute a more modest bill.

To circumvent the "blue slip" problem, the House will have to pass a new version of the legislation, probably one identical to the Senate measure, and send it to the Senate, according to Roll Call. But that could trigger a new round of procedural challenges by Coburn, which could take several days.

Another way to overcome the "blue slip" problem, said Bill Marler, a Seattle-based food safety attorney who has followed the legislation closely, might be a compromise bill that drops the Senate's fees while keeping the Senate's Tester amendment and the House's $500 registration fee. The Tester amendment exempts small farms and food businesses from some of the new safety requirements.

"I think it's likely the House will go along with the Tester amendment. But it's doubtful if the Senate will go along with the $500 registration fee," Marler told CIDRAP News.

If Congress doesn't pass the legislation before it adjourns later this month, supporters will have to start over next year in the new Congress, in which Republicans will control the House and Democrats will have a smaller majority in the Senate.

Marler was pessimistic about the chances for broad food safety legislation in the new Congress. "Given the fact that there was no movement on food safety in the '90s, when the Republicans had control of the House and Senate, or one of them, I can't imagine that if the bill doesn't pass this year, that we'll see food safety anytime soon," he said.