Gregory Conko

The Food Safety Modernization Act was passed again by Congress on Sunday, apparently without a provision that earlier drew criticism for violating the Constitution by having a tax increase contained in it originate in the Senate rather than the House (something forbidden by the Constitution’s Origination Clause). The Washington Post story about this cites only the alleged benefits of the bill, not its potential costs to innovation, small business, and the availability of unconventional foods, which we previously discussed at this link.

Greg Conko, an expert on food safety regulation, has explained how the bill’s expensive and cumbersome red tape might thwart “firms from developing innovative new processes and practices that could deliver real food safety improvements.”

From the Post story, it sounds like the Senate version of the bill, not the House version, became law, although it’s not clear.  The House version of the bill would have driven “out of business local farmers and artisanal, small-scale producers of berries, herbs, cheese, and countless other wares, even when there is in fact nothing unsafe in their methods of production,” warned legal commentator Walter Olson at Overlawyered. The Senate version of the bill is less extreme, but even it “would leave tens of thousands of small and mid-sized farms and food stands to be crushed under the weight of rules designed for some of the world’s largest food processors,” Conko says.

The tax increases contained in an earlier Senate version of the bill violated the Constitution, argued Conko (who is a lawyer) and law professor Jonathan Adler.

I earlier discussed false claims made by the law’s sponsors about its reach over farms and activity that doesn’t cross state lines.