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Senate Appropriations Bill Targets FDA Rulemaking Agenda

The Senate Appropriations Committee is looking to tinker with the Food and Drug Administration’s rulemaking agenda through its fiscal year 2017 funding bill for the Department of Agriculture and FDA (S. 2956). Passed unanimously by the committee last month, the bill would give FDA marching orders to mandate the labeling of genetically engineered (GE) salmon, while putting the brakes on the agency’s labeling rules for restaurant menus.

The labeling requirement for GE salmon came via an amendment from Senator Lisa Murkowski (R-AK). Murkowski, who proposed the amendment twice before, has been at odds with FDA ever since it approved the use of GE salmon as human food, a move that she said could threaten “Alaska’s gold-standard reputation” for wild-caught salmon.

At the committee markup, she said mandatory labeling would not correct FDA’s “wrong-headed decision,” but it would allay some consumers’ concerns about the fish’s safety. The amendment, along with another that would restrict the labeling of Alaskan king crab to only crabs caught off Alaska’s shores, passed the committee on a voice vote.

At the markup, nary a word was said about the bill’s provision that would again delay FDA’s implementation of rules requiring chain restaurants include nutritional information on their menus.  The language in the Senate's funding bill would effectively delay implementation until at least April 29, 2017.  The provision had been a long-time coming, given the broad bipartisan support for delaying or scrapping the menu labeling regulations. Most recently, the 2016 Omnibus Spending Bill, enacted last December, Congress delayed the compliance date for restaurants for one year, which FDA has interpreted as being one year after it issues a Final Guidance to assist affected industry in revising their menus to meet the new requirements.  So far, that final FDA guidance has not been issued so a future enforcement date has not been announced.

Whether either chamber plans to undo the menu labeling rules after an additional implementing delay remains to be seen; that legislative outlook could very well depend on the outcome of this year’s presidential election.

The Senate’s bill allots $2.76 billion in discretionary funding to FDA, an increase of $39 million over its FY 2016 enacted level. Along with the House’s version (H.R. 5054), which that chamber's appropriations committee passed in April, the Senate’s measure now awaits a floor vote.

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Sam Rothbloom