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Compromise Reached on Tester Amendment, Consumer Groups Agree to Support: Food Safety Bill Moves Forward in Senate Today

Submitted by Food Democracy Now on November 18, 2010 - 9:24am

Update: Watch Senator Tester's statement on the Senate floor.

Late yesterday afternoon I started hearing about a compromise deal being reached in the Senate on the Tester-Hagan Amendment between consumer and sustainable agriculture groups.

After nearly 18 months of battling rumors, innuendos and false starts, the two sides sat down separately with key Senate staff and hammered out the final details of a compromise on what food experts and author’s Michael Pollan and Eric Schlosser are calling “the most important food safety legislation in a generation”.

The compromise between consumer and sustainable ag groups ends one of the most acrimonious fights in the food movement in recent memory and guarantees that strong provisions protecting small-scale family farmers who sell produce or goods locally to consumers, restaurants or grocery stores.

In the last 48 hours more than 7,000 Food Democracy Now! members made calls to their Senators asking that they stand up for family farmers and support the Tester amendment. Joining dozens of other sustainable ag groups from across the country this 11th hour push has helped move the Food Safety Modernization Act one step closer to final passage in the Senate.

This is a major victory for family farm and sustainable ag groups who have worked hard to make sure this bill contained language that protected producers who sell locally. And while consumer groups widely opposed language in the Tester amendment they wisely struck a deal to make sure this bill goes forward.

Here at Food Democracy Now! we'd like to thank our members who took action and all the groups who worked so hard to make this happen. We'd especially like to thank Ferd Hoefner and the National Sustainable Agriculture Coalition (NSAC) for their tireless efforts on working on this bill.

And while we are greatly encouraged by the progress on the food safety bill to date we realize that the fight is still not over. Not only does the Senate still have to vote to pass both the compromise on the Tester amendment and the food safety bill itself, that bill will still have to be reconciled with the House version that past more than a year ago and then the final rules will have to be implemented by the FDA.

Food Democracy Now! continues to urge citizens to call their Senators to support this bill and make sure that key provisions and implementation work to protect both consumers and family farmers, as both are linked in the vital success of our nation.

Key components of the compromise received from Senator Tester's office include:

The compromise differs in three respects from the most recent version of the amendment:
·  Language has been added that gives FDA authority to withdraw an exemption from a farm or facility that has been associated with a foodborne illness outbreak.
·  The distance from a facility or farm that is eligible to be a “qualified end-user” has been reduced from 400 miles to 275 miles.
· Language clarifying that farmers’ market sales are “direct-to-consumer” for FDA’s purposes has been revised to avoid creating unintended consequences (the effect is the same).

Below is a summary of the compromise reached with consumer groups.

Summary of Tester Amendment
Senator Jon Tester (D-MT) has sponsored an amendment to the food safety bill (S. 510) to further protect small, local food processors and producers. 

Retail Food Establishments:
In the 2002 Bioterrorism Act, Congress required that all facilities that manufacture, process, pack, or hold food must register with FDA, but it exempted from that requirement “retail food establishments.”  FDA defined the term at 21 CFR 1.227(b)(11).  For purposes of the definition, the Tester amendment would require FDA to clarify that “direct sales” of food to consumers includes sales that occur other than where the food was manufactured, such as at a roadside stand or farmers’ market.
Qualified Exemptions:
• Food facilities would qualify for an exemption from the preventive control/HACCP provisions in section 103 of S. 510 under certain conditions: 

(1) they are either a “very small business” as defined by FDA in rulemaking; or (2) the average annual monetary value of all food sold by the facility during the previous 3 year period was less than $500,000, but only so long as the majority of the food sold by that facility was sold directly to consumers, restaurants, or grocery stores (as opposed to 3rd party food brokers) and were in the same state where the facility sold the food or within 275 miles of the facility.
• Facilities  that qualify would be exempt from the preventive control/HACCP provisions in S. 510, but would still have to comply with one of the following: 

(1) They would have to demonstrate that they have identified potential hazards and are implementing preventive controls to address the hazards, or 
(2) they would have to demonstrate to FDA that they are in compliance with state or local food safety laws.
• Disclosure:  Any food sold by a facility that opts for compliance option (2), above, would have to prominently and conspicuously provide the name and address of the facility that produced it on a food packaging label, or at the point of purchase, as appropriate.
• Study:  FDA would have to conduct a study of the food processing sector to help inform the definition of what it means to be a “very small” facility for purposes of the exemption above.

• Farms would qualify for an exemption from the produce safety standards in section 105 of S. 510 if, during the previous 3 year period, the average monetary value of the food they sold was less than $500,000, but only so long as the majority of sales were to consumers, restaurants, or grocery stores (as opposed to 3rd party food brokers) and were in the same state where the farm harvested or produced the food or within 275 miles of the farm.
• Any food sold under the exemption would have to have the same disclosure set forth above.

• In the event of an active investigation of a foodborne illness outbreak that is directly linked to a facility or farm exempted under this section, or if the Secretary determines that it is necessary to protect the public health and prevent or mitigate a foodborne illness outbreak based on conduct or conditions associated with a facility or farm that are material to the safety of food, the Secretary may withdraw the exemption provided to such facility under this section.  No activities under this limitation expand existing FDA authorities to inspect farms. 

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