WHOOPS -- FOOD SAFETY BILL HITS CONSTITUTIONAL SNAG
Posted 1:00 AM Eastern
December 2, 2010
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WASHINGTON -- A controversial food safety bill that supporters were confident would sail through the House following passage this Tuesday by the U.S. Senate, has been stopped in its tracks by a constitutional provision that revenue-raising measures must originate in the lower chamber.
The bill had come under fierce attack for its grant of massive new powers to the Food and Drug Administration, and today’s announcement that the chances for passage during the lame duck session are slim-to-none was hailed by natural food groups, family farming organizations, health freedom advocates and their allies.
“We see it as dead in the water,” said Darrell Rogers, communications director for the Alliance for Natural Health-USA, an advocacy group that has been on the frontlines opposing the bill.
“If not dead, it’s verifiably on life-support and its condition is terminal,” he added.
S. 510: The FDA Food Safety Modernization Act, is intended to extend the regulatory and enforcement powers of the FDA over food production and distribution, empowering the agency to inspect food facilities more often and expanding its access to food facility records. It further requires food producers and processors to develop and keep detailed records and "contamination prevention" plans. Critics view it as a highly intrusive measure, the enforcement of which will not lead to greater food safety, but could spell the end of both family farming and the burgeoning local food movement.
view it as a highly intrusive measure, the enforcement of which will
not lead to greater food safety, but could spell the end of both family
farming and the burgeoning local food movement.
The House passed a version, H.R. 2749: the Food Safety Enhancement Act, on July 30, 2009.
S. 510 had been introduced earlier, in March 2009, but held back and not brought to the floor until the current lame duck session when Majority Leader Harry Reid decided to force a number of contentious measures through the Senate during the final days of the congressional session.
A nationwide grassroots effort to defeat S. 510 quickly mobilized, but despite a massive barrage of faxes, phone calls and emails, the Senate and 73-25 in favor, with 15 Republicans joining all the Democratic senators. Click here for Nov. 30 vote.
Normally, the two bills would go to a conference committee where the differences between them would be worked out, and a final vote taken by each house. But that takes time, and as NWV warned might happen, Democratic leaders in the House (specifically Speaker Nancy Pelosi and Rep. Henry Waxman, agreed that since there are only a couple of weeks left that they’d accept the Senate version and send it to the floor as is for passage.
Once it had arrived in the House, the Ways and Means Committee staff caught a serious constitutional blooper: a fairly lengthy provision – Sec. 107 – that authorizes the Food and Drug Administration to collect fees to pay for food recalls, inspections, re-inspections of food facilities, and the registration of food importers.
The authors of S. 510 decided not to include the House version’s $500 annual registration fee for domestic food facilities, which was intended as a source of revenue to pay for the FDA’s vastly expanded responsibilities, but to use a fee scheme instead.
However, the “Originating Clause” of the U.S. Constitution clearly gives revenue-raising authority only to the lower House, stating: “All bills for raising Revenue shall originate in the House of Representatives."
“So it’s up to the House Ways and Means Committee, particularly the Republican members, because there’s a tax-raising provision in the food safety bill that was sent from the Senate, and any bill that raises any taxes or revenues has to originate in the House,” said Rogers.
There’s a procedure that’s called “blue slipping” that’s used in cases like this. The House has to give the bill the “blue slip,” that is, it rejects the bill, and returns it to the Senate.
"This blue-slipping procedure, done by an order of the House, is routinely completed to enforce its interpretation that the House is the sole body to introduce revenue or appropriations legislation. The failure of the House to consider the legislation means it cannot become a law. This tactic has historically proven to be of great use to the House and, as a practical matter, the Senate does not introduce tax or revenue measures to avoid a blue slip."
According to Roll Call, the Hill newspaper that broke the story, “the blue slip in this case could lead to one of two likely outcomes. Senate Majority Leader Harry Reid (D-Nev.) could simply drop the issue and let the next session of Congress start from scratch, a strategy that would allow him time in the lame-duck session to tackle other last-minute priorities, such as the expiring 2001 and 2003 tax cuts, a long-term continuing resolution, an immigration bill and a repeal of the military’s ban on openly gay service members.
“Or he could try to force the issue in the Senate after the House passes a new version of the bill. But in order to do that and still tackle the other issues, he would need a unanimous consent agreement to limit debate.”
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Asked what he thought the chances were of the Senate agreeing unanimously to limit debate or to remove the offending section, Rogers said it was "very unlikely" – particularly since there are several senators, such as Sen. Tom Coburn (R-Okla.), that are strongly opposed to the bill.
"So right now [S. 510] is in limbo, on life support, and nobody really knows what to do," he said.
- Sarah Foster: FDA
Food “Safety” Bill Can Be Stopped: Nov. 24, 2010
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4 - Doreen Hannes: Cheese Factory, FDA and Corruption: Nov. 13, 2010
5 - Sarah Foster: House Set to Vote on Fast-Tracked "Food Safety" Bill: July 30, 2009
6 - Sarah Foster: Will Congress Wipe Out Home Gardens, Growers Markets? Mar. 23, 2009
7 - Sarah Foster: "Lame-Duck" Harry Reid Flying High With Food Safety Bill: Nov. 30, 2010
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