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A week ago, it looked as if the Food Safety Modernization Act (S.510) was dead in the water. Now, however, in a sign of hope for S.510, House Democrats tucked the food safety bill into the much bigger government funding bill before passing it back to the Senate.
On Nov. 30, by a vote of 73-25, the Senate passed S. 510, the Food Safety Modernization Act. (At least 60 votes were required since Tom Coburn objected to the $1.4 billion cost.) Senate passage followed some mid-November drama stirred up by the Tester amendment to exempt small producers and the Feinstein amendment on bisphenol-A. The vote occurred close to one year after the Senate Committee on Health, Education, Labor and Pensions (HELP, chaired by Sen. Harkin) cleared the bill for consideration by the full Senate.
S. 510 was less rigorous than the House-passed Food Safety Enhancement Act (HR 2749) of 2009. Thus, there were two avenues to get this bill to the President for signature. One was to conference the differences in the bills, but many on Capitol Hill felt a conference would be tricky, given the little time left in this Congressional session, as well as the differences in the two bills. The second route was for the House to pass the Senate bill, which some thought was a likely scenario.
Shortly after S. 510 passed, it was realized that Section 107, authorizing the FDA to assess fees for recalls or failed inspections, would be considered a revenue-raising measure, and thus technically taxes under the Constitution—which must originate in the House. Therefore, the House procedurally would be unable to consider the Senate-passed bill. At that juncture, there was no solution or clear path forward. The House would need to pass the Senate bill as its own, and send it back to the Senate; or the Senate would need to pass a new bill without this fee authorization provision.
The final solution—which may be successful—was to attach the bill to the Continuing Resolution for the federal budget, which narrowly passed the House on Dec. 8 by a vote of 212-206. This very close vote included zero Republicans—who overwhelmingly favored a short-term measure to push the unfinished budget into next year, when they take majority. Now that the food safety bill is attached to the House-passed CR, it has a decent chance of becoming law because the Congress must take some action on the budget (the current CR expires on Dec. 18). The Senate will act on this in the next few days, but there is clear and strong opposition to this CR package (yet strong bi-partisan support for food safety legislation). Nonetheless, even if the Senate passes a different budget, it is likely that the final version will include S. 510.