The Tester Amendment, which was introduced to the Food Safety Modernization Act by Senator Jon Tester of Montana and accepted in mid-November, undermines what promised to be a significant piece of legislation. The amendment exempts food and beverage manufacturing companies that are either defined as very small business by the Food and Drug Administration or have annual sales of less than $500,000, and sell a majority of products directly to consumers or through food service or retail outlets within 275 miles of the manufacturing facility. Companies that fall within the guidelines of the amendment must have a hazard analysis and critical control points (HACCP) plan, or demonstrate that they are in compliance with state and local food safety laws.

The mythos that has been diligently framed around companies producing “local” or “artisan” products accounts for this amendment. These are market categories populated primarily by small companies that use their size as a point of differentiation in efforts to compete with much larger companies. And as long as their efforts at differentiation remain within the field of marketing, the concepts of local and artisan production provide very viable niches for entrepreneurs within the food and beverage industry. If some consumers wish to believe a product produced by a small company is better for them, of a superior quality or fresher than one from a larger firm, then that is their prerogative.

Senator Tester’s amendment changes that dynamic. Whether intentionally or unintentionally, the amendment implies products manufactured by smaller firms are somehow safer than those provided by larger companies.

In his comments shortly after the amendment was added to the bill, Mr. Tester focused on how his amendment would prevent the business consolidation that has occurred in other businesses such as energy and banking. It should be noted that food safety does not cause consolidation. It is a fundamental practice that must be adhered to at all levels of production, from the largest manufacturers to the smallest. To exempt smaller manufacturers from the law for business reasons puts consumers at risk.

Perhaps the most galling aspect of the amendment is its limitation, which states that in the event of an active investigation of a food-borne illness outbreak that is directly linked to a facility or farm exempted under the amendment or if the Secretary of Health and Human Services determines public health is at risk the secretary may withdraw a company’s exemption from the law. The goal of food safety efforts should be to prevent a food-borne illness outbreak rather than respond to it. The knowledge, practices and technology all exist to ensure safe manufacture of food products. Any amendment to the food safety legislation should have focused on making it easier for smaller companies to learn about and adopt current as well as future food safety practices and technologies.

On July 25, 1996, the U.S. Department of Agriculture implemented the Pathogen Reduction; HACCP Systems final rule, which fundamentally altered food safety practices throughout the meat and poultry industry. Fourteen years later large and small, federally inspected firms compete within the marketplace, with the largest companies vying for market share among the leading food service providers and retailers, while smaller processors thrive, selling organic, locally-raised and grass-fed products.

It would be disingenuous to imply there was no impact felt in the meat industry as the final rule was implemented, but equilibrium returned to the marketplace. Today, smaller processors are able to succeed within the market niches they have established and the products processed by both the largest and smallest firms are safer than they once were. It is doubtful the companies exempted by Mr. Tester’s amendment will have made the same strides in food safety in 14 years as their brethren in the meat and poultry industry achieved.