Food safety bill, just passed in Senate, in jeopardy on technical flaw

Hours after celebrating a rare moment of bipartisanship that saw the Senate pass a sweeping overhaul of the nation’s food safety laws, congressional backers of the legislation realized that it has a potentially fatal technical flaw and that they may not have time to fix it.

The Senate bill contains a section that authorizes the Food and Drug Administration to assess fees on food importers and food producers that have recalls or fail inspections. That’s considered a revenue-raising measure, and under the Constitution such legislation must originate in the House.

The bill, which passed 73 to 25, would impose new planning and record-keeping requirements on food producers and give the FDA power to recall tainted food and improve oversight of imported food.


The blunder sent congressional Democrats, who churned out a stream of news releases trumpeting the bill Tuesday, scrambling for a way to salvage the long-awaited legislation.

One possible scenario would be to pass the contents of the Senate bill as a House measure and send it back to the Senate for re-approval.

But a House Democratic staffer familiar with discussions on the issue said lawmakers haven’t decided what to do. A rapidly dwindling clock in the lame-duck Congress limits options.

The slower-moving Senate has a calendar stacked with big issues.

Senate Republicans on Wednesday served notice that they won’t agree to consider other legislation until Democrats agree to extend Bush-era tax cuts and fund government operations, further reducing the possibilities for a do-over on the bill.

Publicly, Senate Democratic aides put a positive spin on the embarrassing glitch.

The bill is not dead, insisted Max Gleischman, a spokesman for the bill’s sponsor, Sen. Richard J. Durbin (D-Ill.). “House and Senate leaders are working on a solution to the ‘blue-slip’ problem,” Gleischman said. “We anticipate a resolution to this issue and getting a food safety bill to the president’s desk before the end of the year.”

Gleischman noted that 15 Senate Republicans voted for the bill, suggesting that there would be significant GOP support for getting it passed anew.

Privately, Senate Democratic staffers expressed despair. “It should never have happened,” said one.

There was barely disguised glee in the office of the bill’s chief Senate opponent, Tom Coburn (R-Okla.).

Coburn “supports a recall of the tainted food safety bill,” said John Hart, Coburn’s communications director.

A separate food safety bill passed the House in July 2009, but it contains enough differences that it could not pass the Senate.

Bill Marler, a Seattle attorney who represents victims of food-borne illness outbreaks, said that because of changing congressional priorities and a tilt toward Republicans, it’s now or never for food safety reforms.

“If they don’t find a way, you won’t see a food safety bill for a decade,” Marler said. “It’ll be toast.”

How the error occurred is not clear, and staffers declined to comment on the record because they did not want to publicly criticize colleagues.

House Democratic aides were adamant that they pointed out problems with the revenue section of the Senate bill to Senate staffers as early as April.

Senate Democratic staffers offered a more muddled account, saying that aides working on the bill were aware of a possibility of a technical problem but received a preliminary opinion from the House that there was none.

A subsequent message from the House to the Senate apparently never reached either Sen. Tom Harkin (D- Iowa), the head of the committee shepherding the bill, or Senate Majority Leader Harry Reid (D-Nev.).