Food Poison Journal - Food poisoning outbreaks and litigation: surveillance and analysis

Today, after a bit of drama yesterday, HR 2749 - The Food Safety Enhancement Act of 2009 - passed overwhelmingly and with serious bi-partisan support. It is now headed to the Senate with a likely stop over at a Conference Committee before it lands on the President’s desk.

Frankly, I may need to start looking for a new job. As I penned a few days ago, in 2002, in the middle of the recall of 21,000,000 pounds of E. coli O157:H7-tainted ConAgra beef that sickened 50 Americans and killed one grandmother, I wrote an Op-Ed saying that it was time to “put me out of business.” My argument was that since people generally hate trial lawyers like me, the best way to get rid of me would be to stop poisoning people with contaminated food.

Since that outbreak, millions more have been sickened and permanently disabled by food tainted with Salmonella, E. coli O157:H7, Listeria, Campylobacter, and other pathogens. Thousands have lost their lives. In that same time period Congress had more than 20 hearings on food safety - many attended by my clients - but had not enacted comprehensive legislation. Well, “change,” the official Obama phrase, has come to Capitol Hill.

The bill, many times amended (Why? Perhaps, a later blog post), and nearly 200 pages long, will greatly strengthen the FDA’s power to regulate 80% of food economy. HR 2749 will give the FDA the power to order food recalls and set record-keeping standards for food facilities. It will mandate increased frequency of inspections and have the fees to pay for them. There will be stiffer criminal penalties and imports will have to meet the same standard as products produced in the US. What it certainly will do is reduce the enormous number of foodborne illness outbreaks, keep kids out of ICUs and off dialysis, and increase the overall safety of our food.

HR 2749 is the first meaningful food safety legislation in 50 years. It was time for the left to stop making perfect the enemy of good. It was time for the right to get out of the way of consumer protection in the name of industry protection. It was time for all of us to acknowledge that ensuring safety in a sprawling, global food system is not free, nor without pain. It was past time for every part of the food economy – regardless of size - to become part of the system, to share in the costs of the system, and to promote the safety of the system. It has always been really long past time to “put me out of business.”

Consumer advocates breathed a sigh of relief today as the House took a major step towards FDA reform by passing H.R. 2749, The Food Safety Enhancement Act of 2009.

After the provision fell just short of the supermajority needed under a suspension of the rules yesterday, the bill passed easily (283-142) under a closed rule.

Caroline Smith DeWaal, Food Safety Director at the Center for Science in the Public Interest, released a statement hailing the passage of the bill. “FDA has been operating under the same law for 70 years and can do little more than respond to outbreaks after the fact. This bill gives the FDA more authority and real enforcement teeth to help prevent more outbreaks, illnesses, and deaths.”

“I think it’s a credit to the hard work of a lot of people and yeomen’s work of 3 years of hearings,” said Toni Corbo of Food & Water Watch. “It took a coalition of consumer groups to really put this issue on the front burner for this session.”

Corbo also was quick to add that the bill’s success was a tribute to the victims of foodborne illness, noting that the family members of lost ones played a key role in shoring up support for the measure.

Food Safety Advocate Bill Marler followed the debate and vote closely. “It was great to see consumers, producers and manufacturers come together to support the first real food safety legislation in 50 years,” he said. “Now, however, the real work comes in working with the Senate and eventually a Conference Committee before it lands on the President’s desk.”

After meeting with over 200 members of Congress and over 80 Senators, Pat Buck, executive director of the Center for Foodborne Illness Research & Prevention whose grandson, Kevin, died from eating an E. coli-tainted hamburger, was ecstatic over HR 2749’s success. “This was a victory for the consumer today, it really was.”

“It is very exciting. It shows me that, finally, the very people who should be taking leadership are acting in a timely fashion. Congress is really responding to a 21st century need.” Buck stressed the importance of today’s success, adding that some advocates were worried food safety would not have received another chance in the 111th Congress had HR 2749 failed.

Though HR 2749 was a key success, it only marks the beginning of a long fight to bring legislation to President Obama’s desk.

“This is the first step,” said Corbo, who noted that Food and Water Watch would work hard to ensure a similar bill in the Senate in the face of a legislative agenda dominated by health care reform and appropriations bills. “It’s quite an agenda. We’re going to make sure food safety is in the queue before the end of the year. We need this legislation on the books so FDA can do its job properly.”

The food safety bill continues to garner broad support from consumer, health, and industry groups and it is expected to come before the Senate this fall.

More information on the bill, including full text and votes is available on Govtrack.us.

Republicans did not like how the Democrats did it, but they provided enough votes Thursday to see the Food Safety Enhancement Act of 2009 pass the U.S. House of Representatives with a strong bipartisan vote of 283-to-142.

Just before passing the biggest food safety reform since 1938, the House Democrats had to turn back a “last stand” attempt led by mostly rural Republicans to send the bill back to committee "with instructions."   That died by an almost perfect party-line vote of 186 - to- 240.

Those “instructions” called for half the funds from new registration fees to be used to reimburse farmers for losses like those experienced last year by tomato growers when FDA erroneously thought they were responsible for a salmonella outbreak.  Growers claim that mistake by FDA cost them $100 million.

Defeat of the GOP motion cleared the way for passage of the most comprehensive reform of food safety in the United States since 1938 . It was adopted after a rule limiting amendments and limiting debate to one hour passed 249 to 180.

Michigan Democrat John Dingell, the longest serving member of the House, said H.R. 2749 “was old enough to vote” itself in that he has been working on reforms contained in the bill for 21 years.

Dingell read many sections of the bill aloud before the vote to assure small and organic farmers, livestock and grain farmers, and those concerned about environmental practices that the U.S. Food & Drug Administration (FDA) is not going to run wild as a result of the legislation.

Rep. Collin Peterson, Chairman of House Agriculture Committee, said with those changes Ag groups were either supportive or neutral on the FDA bill.

Yesterday, the same bill fell just short of getting the required two-thirds vote for fast-track passage with 280 votes in favor and 150 against.

Florida Republican Adam Putnam said H.R. 2749 would result in a “modern, effective regulatory system” becoming a reality.

FDA, which gets new risk-based inspection and trace-back authority along with a $500 per facility fee for the food-making facilities it regulates, will oversea both domestic and foreign food products that are imported to the U.S. 

“Foreigners now have to meet the same standards as Americans,” Dingell said.

Proponents argued that the reforms contained in H.R. 2749 are needed as much by consumers as producers.   “We have to have confidence in our food supply,” said Illinois Republican John Shimkus. 

Under H.R. 2749, FDA gets recall authority, immediate access to records, and subpoena authority.

New York Democrat Louise Slaughter, who managed the rule on the floor,  said 76 million food-borne illnesses and 5,000 deaths are reasons enough to bring H.R. 2749 back for a vote.  

The 132-page bill now goes to the Senate where Illinois Democrat Dick Durham is waiting with his own bill.   Likely as not, any Senate bill will contain enough differences to require a Conference Committee to work out differences. President Obama endorsed the House bill before today’s vote. 

Here is what is going to happen today on the floor of the U.S. House of Representatives to get H.R. 2749, the Food Safety Enhancement Act of 2009, passed:

After the House gets through with the Defense Appropriations Act of 2010, it will turn to House Resolution 691, the rule for consideration of H.R. 2749. There will be one hour of debate on the rule. 

The rule provides that in lieu of the amendment in the nature of a substitute recommended by the Committee on Energy and Commerce, the amendment in the nature of a substitute printed in the Rules Committee report accompanying the resolution shall be considered as adopted and the bill, as amended, shall be considered as read.  The rule provides one motion to recommit the bill with or without instructions. 

It is possible there will be a vote on a Democratic motion ordering the previous question; and then on the adoption of the rule.

Once it adopts the rule, the House will again consider H.R. 2749, the Food Safety Enhancement Act of 2009. There will be one hour of debate on the bill. There could be a Republican motion to recommit the bill (send it back to committee). Today, the vote on final passage will require only a majority to support it.

Congress today knocked H.R. 2749, the Food Safety Enhancement Act of 2009, off the fast track.   It fell six votes short of achieving the two-thirds necessary to pass without amendments under a suspension of House rules.

In the next couple of days, it will come up under regular order, meaning it can be adopted with a simple majority after being subjected to amendments on the floor.

However, the 280-150 vote H.R. 2749 won today was proof positive that there is still one master lawmaker in the House. 

The Food Safety Enhancement Act of 2009 is the bipartisan product of the House Energy & Commerce Committee and its prime sponsor, Michigan’s John Dingell.

For years, Dingell chaired the Energy and Commerce Committee. He lost the post before the 111^th Congress convened in a 137-122 caucus vote to the more liberal Henry Waxman of California.

Dingell, who has served in Congress since 1955, used the time he gained by not being chairman to focus on legislation, like the food safety reform, that he really cares about.

He  built H.R. 2749 initially by molding it out of legislation that was introduced by Committee Democrats. He used the regular bill markup sessions to work with Committee Republicans and ended up with a unanimous bipartisan vote to get H.R. 2749 to the floor.

Prior to today’s floor action, Dingell worked with both the Majority and Minority on the House Agriculture Committee – eliminating feed grains and livestock from the bill for example---with enough changes to require three re-writes of the bill by late morning.

Clearly, Dingell’s spade work on both sides of the isle and crossing committee lines was helped move 50 Republicans to vote for the bill today. In an age of fierce partisanship and the Majority Party locking the Minority out of the process entirely, Dingell provided an unusual steady and fair hand at the helm.

“We are handling this bill in the way it should be handled in the proper bipartisan fashion,” Dingell said.

And after the GOP Floor Leader complained about new versions of the bill being filed right up until the House went into session, Rep. Joe Barton , the ranking Republican on the Energy & Commerce Committee, said:

"What our Minority Leader said is true, but as Paul Harvey use to say, it is not the rest of the story. Those different bills have been introduced as a result of changes I’ve asked for...In this bill, in this case…we have had an open bipartisan process.

That’s why 280 Members of Congress are now on record supporting H.R. 2749, and why it will pass the House before the August recess.