I swear, you have to be a parliamentary expert to figure out what’s happening with the so-called food safety legislation, S 510. But in a nutshell, it’s very close to passage in the U.S. Senate. When that happens, the Senate version will go to the House, which previously passed a similar version, and then to President Obama, who has committed himself to signing whatever Congress passes on food safety.

The pressure is on to pass this thing now, in a lame-duck session with holdovers already voted out of office, since the new Congress may well be less inclined to sanction the kind of broad clampdown on rights this legislation includes, not to mention the budgetary strains of hiring a new army of food inspectors.

If S 510 is going to be stopped, it has to happen now. I was involved yesterday in a phone meeting with a broad array of opponents , and it seems the main hope of scuttling this thing will take place next Monday, when there’s at least one more vote on cloture. This is the technical term for limiting debate in the Senate, where the rules otherwise allow senators opposing a bill to talk it to death via endless debate, known as a filibuster.

Cloture requires 60 votes to invoke, and a vote last week (before the bill was amended) was approved by a 75-25 margin. That means 25 senators were willing to stand up against this bill, and I understand the number is rising. If 16 additional senators can be persuaded to go along with cloture, the bill could be headed off.

The most fertile territory for the votes is in non-Big-Ag states, such as in New England. There, most senators voted for cloture last week. Now is the time to call, and go to this site for a list of senators who should be contacted, in addition to your own state’s senators.

Confusing the whole situation even further is the fact that a number of food organizations, like the Weston A. Price Foundation, have changed from pushing for defeat of the legislation to urging members to push their senators to support the current version of S 510 with the Tester-Hager amendment exempting some small food producers from most  of S 510’s requirements. It sounds nice that producers with less than $500,000 sales would be exempted, but there’s lots more to being exempted than that. Moat notably, at least 50% of your sales need to be direct to consumers and you can’t sell outside a 275 mile radius from your production facility. Want to ship to customers 300 miles away? Too bad. Meet your new friends from the U.S. Food and Drug Administration, who will do their best to regulate you out of business.

I understand that some opponents of S 510 are willing to compromise to gain exemptions from small direct sellers, but knowing the FDA the way I do, I would expect it to find ways around the legislation if there are groups of producers it wants to target. It can simply say it has concerns about the safety of their food, or if it wants to be extra careful, it can audit a firm to make sure it meets all the criteria. If it finds a firm selling 49% direct, or outside the 275-mile radius, bring out the hangman’s noose.

The key now is to urge senators to vote against cloture because of grave concerns that the legislation goes way beyond food safety and into food and constitutional rights. Remember, it gives the U.S. Food and Drug Administration broad executive powers to quarantine large parts of the country, to conduct warrantless searches of food producers, and to enact so-called Good Agricultural Practices to infringe on farmers’ rights to determine how their crops will be grown and their animals raised.

I suppose S 510 with the small-producer exemption is a preferable fallback position to not having it at all, but it definitely doesn’t make me feel better about letting the FDA wolf into the small food producer henhouse.

The FDA comes under a bit of scrutiny in a New York Times article about Estrella Family Creamery last Saturday. But just a bit.

The article raises the basic question of whether the FDA’s zero-tolerance approach to listeria is realistic, and only begins to get at the real issues driving the agency’s efforts to put Estrella and Morningland Dairy out of business. It points out that the FDA last April began an inspection program to test 102  cheese makers for listeria, without asking the question of why, and why then. It turns out that a high-ranking FDA official had just a couple months earlier begun talking up the idea of doing away with the 60-day aging requirement for raw milk cheese. An organization of cheese makers last month warned its members of an FDA clampdown on raw cheeses.

One of the people quoted in the article, perhaps inadvertently, sums up the likely real story of what’s going on with the cheese inspections.

“’If the F.D.A. wanted to shut down the U.S. artisan cheese industry, all they’d have to do is do this environmental surveillance and the odds of finding a pathogen would be pretty great,’ said Catherine W. Donnelly, co-director of the Vermont Institute for Artisan Cheese of the University of Vermont, referring to the listeria testing at cheese plants. ‘Is our role to shut these places down or help them?'” Ms. Donnelly asks that question as if the answer is the latter, to help the cheese makers. But, of course, the likely real answer is that the FDA would like nothing better than to shut these places down.

It’s interesting that FDA apologists keep saying, to effect, “Well, the rules are the rules. FDA is just enforcing the rules.” In point of fact, the FDA’s rules on listeria aren’t the same rules used by other industrialized countries, including the fathers of cheese making–the European Union. Nor will the FDA entertain any discussion about its zero-tolerance approach, or provide counts of listeria organisms present in the tests it does.

On that point, there is an interesting exchange on the Marler/Clark law firm’s blog about zero tolerance. Bill Anderson, the cheese expert who frequently comments here, raises this question as part of a long exchange with Marler: “Since you travel so much, can you tell me if there is any other nation on earth which has zero-tolerance for listeria monocytogenes in all RTE foods, regardless of pH, moisture, salt, or shelf stability? I’m genuinely interested.”

To which Marler responds: “Granted Bill, I am not a food scientist nor a 25 year old cheese maker. I also have no idea if other countries do or do not have zero tolerance for listeria in ready to eat foods…”

I did a very quick google search on listeria tolerance by the European Union, and presto, the first link was a press release from the European Food Safety Authority, the EU’s equivalent of the FDA, issued in 2008 that stated:  Different approaches are taken by public authorities across the world in monitoring the levels of Listeria. In the European Union, there are maximum safety tolerance levels for Listeria[1] in food products.”

The tolerance is 100 or fewer organisms in 25 grams of a product. It’s not clear if cheese is covered, but the key point is that zero-tolerance isn’t the rigid game it is in the U.S., where regulators won’t even disclose the number of organisms.

This is all important because all kinds of raw dairies have been temporarily shuttered over the past five years for listeria contamination, and to my knowledge, no illnesses have been reported. Same now with Estrella and Morningland. Yet the FDA and state agriculture and public health agencies refuse even to discuss the matter.

The Farm-to-Consumer Legal Defense Fund is pursuing the matter of bogus listeria shutdowns in suits in New York state on behalf of raw dairy operator Chuck Phippen and in Missouri on behalf of Morningland Dairy. That seems to be the only way to have a discussion with the FDA.

One final note: a reader sent me a link to a 2007 article in Consumer Reports reporting that 83% of American broiler chickens are contaminated with campylobacter or salmonella. That was what CR allowed was “a stunning increase” from the 49% rate in 2003. Moreover, many of the pathogens sampled by CR showed antbiotic resistance.

I know, chickens are supposed to be cooked and cheese eaten as is. But supposing I want to eat my chicken rare or, heaven forbid, raw. Shouldn’t the government be protecting us from such epidemic levels of contamination? Maybe we’d see action if the chickens were being fed raw dairy.?