While the FDA food safety reform bills in the House and Senate have gained considerable support from industry, producers, and consumer groups alike, some smaller farmers and processors have voiced concern. They have concerns that FDA that the $500 registration fee per processing facility in the House bill is too inequitable and onerous; that FDA rules for growing produce will be inappropriate for small and diverse farms and create onerous recordkeeping requirements; and that FDA would use this purported new power to eliminate organic farming and force all producers to adopt industrialized farming methods such as pesticides, fertilizer and genetically engineered seeds. These criticisms, and Consumers Unions view on them, are discussed below.

Consumers Union believes FDA needs additional resources to be able to modernize and conduct more frequent inspections, and that charging food processors registration fees is an appropriate way to increase FDA resources. S. 510 includes no registration fee. The $500 per facility registration fee in HR 2549 (which was halved from $1,000 in a compromise to industry) represents a minimum appropriate shared responsibility of the food industry in making the products they sell safe for consumers. A sliding scale of fees with very large facilities being charged more than very small ones would be more fair to small facilities however.

Certain types of food operations should be and are exempt from these bills. Neither the House nor Senate bills apply to homes, or home gardens, only to facilities that sell their output. The bills also do not apply to livestock operations, which are not regulated by FDA (they fall under USDA). Food processing facilities that sell at least half their production direct to the consumer are already classified by FDA as retailers and so would not be covered by this legislation, which addresses farms and processors In addition, the House bill appropriately exempts food sold direct to the consumer (i.e., at a farm stand) or to a restaurant or grocery store from the tracing provisions.

The House and Senate bills do empower FDA to establish on-farm safety standards related to use of manure, irrigation water and other farming practices specifically to prevent microbial contamination that causes illness, such as the deadly E. coli 0157:H7 that contaminated bagged spinach and caused three deaths including young children in 2007--a measure Consumers Union supports. However, they in no way call for elimination of manure or for use of GMOs, chemical fertilizer or pesticides. In fact the House bill calls on FDA "to take into consideration, consistent with ensuring enforceable public health protection, the impact on small scale and diversified farms, and on wildlife habitat, conservation practices, watershed protection efforts, and organic production methods."

Neither the House nor the Senate bill create a national produce marketing agreement, and Consumers Union is opposed to a USDA marketing agreement approach to assuring food safety. As seen in California with the Leafy Green Marketing Agreement, such a national agreement would be made by the big producers to meet their needs, without public notice and comment, without factoring in organic or environmental practices or goals, and without even having to take account of science and the needs and desires of consumers.

The House and Senate bills do require FDA to issue regulations within two years to establish a system for tracing a FDA regulated food sold in interstate commerce back to its point of origin, a provision Consumers Union supports. This is needed because of the difficulty FDA currently has in identifying the source of food borne disease outbreaks. This difficulty in tracing back foods to their source in the end only hurts innocent producers. In the summer of 2008 it took the FDA months to ultimately identify and trace back Mexican peppers as the source of a Salmonella outbreak that made thousands of people sick. In the meantime, the tomato industry was hugely impacted until FDA was able to determine that Mexican peppers were the culprit. Animal products, which are regulated USDA, are not affected by these tracing provisions.

The House bill provides for civil penalties, and in the case of criminal behavior, criminal penalties of prison terms of up to 10 years and/or fines. It is Consumers Union's view that people who sell food that they know is likely to kill or sicken people should be severely penalized. They harm the public as well as damage the business of other food producers and processors. In e-mails released at a House hearing on food safety, the owner of the Peanut Corporation of America (PCA) plant shipped peanut products that he knew were contaminated, products that wound up killing nine people. We believe that the penalties for such behaviors should be severe. Criminal penalties, however, are only imposed as a result of criminal prosecutions in the courts under the standard rules of federal criminal procedure.