Proposed Legislation Expands FDA Authority To Recall Contaminated Food

On October 22, 2009, the Senate Health, Education, Labor, and Pensions ("HELP") Committee held a hearing about the proposed Food and Drug Administration Food Safety Modernization Act ("FDAFSMA" or "the Act"), S. 510. The FDAFSMA is a bill amending the Federal Food, Drug, and Cosmetic Act that was introduced by a bipartisan group of Senators on March 3, 2009. The Act is comprised of three titles focused on improving: prevention of food safety problems, detection and response to food safety problems, and safety of imported food. Senator Tom Harkin of Iowa, Chairman of the HELP Committee, stated his hope to have FDAFSMA to President Obama before January 2010.

FDAFSMA would expand the authority and resources of the Food and Drug Administration ("FDA") by giving power to the Secretary of the United States Department of Health and Human Services. This new risk-based, preventive approach has the goal of spotting and stopping contaminated food before it enters domestic supply chains. Specifically, the Act would require food facilities to register, enact preventive food contamination plans, provide the FDA with access to records during food emergencies, and participate in enhanced surveillance and tracing systems. The FDA would also have the authority under the FDAFSMA to verify imported food and to authorize routine inspections by third-parties of international facilities in certain instances. Most notably, the Act provides the FDA with the direct authority to conduct mandatory recalls of adulterated food if there is a reasonable probability of serious adverse health consequences or death.

This Act is similar to its companion legislation, the Food Safety Enhancement Act, H.R. 2794, which was passed in the United States House of Representatives in July by a vote of 283-142. The Food Safety Enhancement Act...

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