Though it passed the Senate this week, the fate of the Food Safety Modernization Act remains uncertain. The Senate voted an overwhelming 73-25 in favor of the bill. So the House will follow suit, it will be enacted, and the new safety regulations will go into effect, right? Actually, no.

The Senate legislation appears to violate the Constitution, because it includes provisions generating revenue for the FDA; appropriations bills are required to start in the House. While we had initial reservations with the bill, we now support it because of its exemption for small-scale producers. We urge the House to circumvent potential constitutional challenges and pass its version with an identical exemption. (The House passed its own food-safety bill last summer, but it applied to local producers as well.)

The Senate bill — which Sen. Tom Harkin, D-Iowa, helped shepherd — would grant the Food and Drug Administration the authority to take preventative measures to ensure food safety, including recalling contaminated food before a major foodborne outbreak occurs.

With the recent revelation that the bill might not pass constitutional muster, many are unsure of what the House’s reaction will be to this rare occurrence.

"We have not released a press release yet, because we don’t know what to say," said Patty Lovera, an assistant director of the nonprofit advocacy group Food and Water Watch.

The majority of agricultural organizations now support the bill. In a letter to the Senate prior to the vote, the National Sustainable Agriculture Coalition wrote, "[the revised bill] is an important step in the reorienting of our food system toward a balanced approach to feeding the world safe and healthy food while supporting rural and urban communities."

Harkin’s office told the Editorial Board that the House may attach the bill to its previous bill of the same matter and send it back to the Senate for a vote. But it is too early to determine the House’s eventual response. In any event, Harkin’s office said the senator is confident in his ability to get the bill passed by both chambers before the end of the year.

If it isn’t passed, both chambers would have to start again from scratch when the new session of Congress opens in January. Harkin has met with other committee members and House members, including Speaker Nancy Pelosi, trying to get the issue resolved. He contends that three weeks is enough time to get the issues surrounding the bill worked out and passed by both chambers.

Harkin certainly has a hopeful Christmas spirit. While the Editorial Board is confident in his abilities and aptitude as a senator, we’re skeptical three weeks will be enough. That is why we urge the House to adopt its own food-safety bill, which includes the small scale exemption.

The contours of the Senate bill are clearly superior in a number of areas. Most importantly, the Senate bill exempts small local producers from these possibly onerous regulations. The Senate version does not require a facilities fee to offset inspection costs — unlike the House bill, which requires an annual $500 fee. This would make it easier for smaller companies to comply with inspection regulations. The Senate version also enables contaminated products to be recalled without a lengthy formal hearing with the company, which the House bill would require.

For companies large and small, the Senate bill only requires inspections every three years, rather than yearly as the House bill proposes. An inspection every three years is more practical for both large and small companies. It would save costs, time, labor, and red tape involved with inspections.

Food-borne illnesses account for the deaths of roughly 5,000 Americans annually, according to the Centers for Disease Control and Prevention. The provisions set forth in the Senate bill appeal to and are supported by many agricultural organizations. And, most importantly, they would ensure that preventative measures are taken to reduce the number of foodborne illness outbreaks and deaths.