Food Safety Bill Passes . . .

Not particularly unexpected.

This is from Judith McGeary of the Farm and Ranch Freedom Alliance. (I met Judith at the Acres USA conference two weeks ago. I appreciate her level-headed, thoughtful approach. She is less excitable than me or Mike Adams :-) ):

This afternoon, the House voted 215-144 to approve the FDA Food Safety Modernization Act (now HR 2751), including the Tester-Hagan amendment.

The bill has taken many bizarre procedural twists. Throughout the process, Agribusiness repeatedly tried to prevent the Tester-Hagan amendment from being included. Even today, members of the House critiqued the bill's protections for small-scale direct marketing producers.

It's clear that, without your calls, the bill would have passed without any protection for small-scale producers. Thank you for all of your calls and letters over the last year!

As passed, the bill includes the same version of the Tester-Hagan amendment as S510: It exempts producers grossing under $500,000 (adjusted for inflation) and selling more than half of their products directly to “qualified end users” from the HACCP-type requirements and the produce safety standards. “Qualified end users” means individual consumers (with no geographic limitation), or restaurants and retail food establishments that are EITHER located in the same state OR within 275 miles of the producer. While complex, this amendment effectively carves out small-scale producers who are selling in-state or to local foodsheds from two of the most burdensome provisions of the bill. More details on the Tester-Hagan amendment are available on our website.

There is still cause for concern about how FDA will exercise the new powers granted to it in S510. The agency's track record is one of favoring Agribusiness at the expense of both family farmers and consumers. S510 does not address the underlying problems of consolidation of our food system or the industry capture of the agency, which result in the agency's flawed policies. But the inclusion of the Tester-Hagan amendment provides critical protections for producers who sell at farmers markets, through CSAs, and at local co-ops and groceries, helping us to continue to build our movement and fight for fundamental changes.

We owe a thank you to Senator Tester and Senator Hagan for standing up for local producers and consumers.

WHAT’S NEXT?

The bill will now go to the President, who is expected to sign it.

Passing the law is still only one step in this process. Next year, Congress will face the issue of how to fund all of the new regulations and new FDA bureaucrats. To actually implement the entire bill, Congress will have to approve $1.4 billion of new spending or cut other programs accordingly, based on the CBO estimates. This gives us a chance to affect the level of funding and seek limits how the money can be spent.

And, on the agency side, the FDA will have to go through the rulemaking process. We expect that the agency will focus on writing rules that benefit Agribusiness and disadvantage independent producers, as usual. We will have to take action to ensure that our concerns are on the record and to urge Congressional official to take steps to rein in the agency from overstepping its bounds.

Why S510/HR2751 is so dangerous: An historical perspecitve

Whew, boy! I've been well aware of most of what follows. I've just never seen it all put together quite so potently in one article:

In arguing for S.510, the "Food Safety Modernization Act," there are all sorts of attorneys, legislators and internet commentators who keep claiming, "The government won't try to control the food production of small farms." They say, "Your backyard garden is safe" and that the feds won't come knocking on your door to control your seeds or foods.

How sad that they are unaware of Wickard v. Filburn, the 1942 Supreme Court decision that pretty well destroyed any constitutional limitations on the power of the federal government . . . right down, literally--and most specifically--to your backyard garden.

How the tyrants came after a farmer named Roscoe Filburn

It all starts with a farmer named Roscoe Filburn, a modest farmer who grew wheat in his own back yard in order to feed his chickens.

One day, a U.S. government official showed up at his farm. Noting that Filburn was growing a lot of wheat, this government official determined that Filburn was growing too much wheat and ordered Filburn to destroy his wheat crops and pay a large fine to the federal government.

The year was 1940. . . . And . . . the federal government had decided to artificially drive up the prices of wheat by limiting the amount of wheat that could be grown on any given acre. . . .

But Roscoe Filburn wasn't selling his wheat to anyone. Thus, he was not engaged in interstate commerce.

Excursus on Interstate Commerce

In case you are unaware:

Before adoption of the Constitution, states, under the Articles of Confederation, had erected protectionist barriers that interfered with the free flow of trade in the new country. One of the main reasons for the Constitutional Convention was to remedy that problem. The framers' solution was the commerce clause, which was intended to make a free-trade zone out of the United States. (The clause also delegated to Congress the power to "regulate" trade with foreign nations and the Indian tribes. We will hold until later the question of whether this was a good way to solve the problem.)

At first, the clause was closely interpreted as referring to interference by the states with the flow of commerce. In 1824, Chief Justice John Marshall's Court, in the first big case involving the commerce clause, Gibbons v. Ogden, struck down a New York law creating a steamship monopoly for traffic between New York and New Jersey. Marshall laid down the principle that for the national government to have jurisdiction, the issue must involve interstate commerce; i.e., it must involve the trafficking of goods (not manufacture) between two or more states. He also recognized that the enumeration of the interstate commerce power implied powers unenumerated (concerning intrastate commerce) and thus undelegated.

Gibbons may have gotten things off to a good start, but it did not last. Marshall sprinkled just enough bad seeds that, taken out of context, would allow later justices, legal scholars, and political opportunists to cultivate the commerce clause into a general power to do anything that could conceivably affect interstate commerce.

For example, in 1870, the Court upheld federal inspection of steam passenger vessels that remained within a single state but carrying goods shipped from or destined for other states. The problems here were two: the inspection law was not intended to prevent state interference with free trade, and the subject of regulation was private enterprise. Thus, we can glimpse the beginning of the modern view that the commerce clause granted to Congress a plenary power to regulate anything that had the potential to affect interstate commerce.

It was a short step to creation of the Interstate Commerce Commission in 1887, which cartelized the railroads and regulated their rates.

One last barrier had to be hurdled. Taking the lead from Marshall, succeeding courts insisted on confining the commerce power to commerce, the movement of goods; production was regarded as prior to commerce and thus outside federal jurisdiction. In 1895, the Court would not let the central government use the Sherman antitrust law to stop the merger of sugar refiners. In 1903, the Court upheld a federal prohibition on the interstate trafficking in lottery tickets. In 1918, it struck down a prohibition on the interstate shipment of goods produced in plants using child labor.

But as Richard Epstein has written, the barrier between production and commerce was "not as well-defined" as the Court held. After all, a market economy is an integrated web of activities in which everything affects everything else, however remotely. Manufacturing arrangements can influence commercial activities. It was only a matter of time before the barrier would disappear and the national government would begin to regulate production directly.

Looking back, the progression from the early cases to the New Deal, when all inhibitions on federal regulation of the economy were dispelled, appears inexorable. Too much had been conceded along the way. The mooring of the commerce clause — the principle that state governments could not erect trade barriers — was too long lost, the distinction between government and private acts too long forgotten. (The Sherman Act outlawed private combinations in restraint of trade.)

In 1937, the Court upheld the National Labor Relations Act, which compelled employers to engage in collective bargaining, holding that the commerce clause subsumed those things "affecting commerce." In the particular case, the Court said that phrase meant "tending to lead to a labor dispute burdening or obstructing commerce."

After President Roosevelt threatened to pack the Court to dilute the influence of the uncooperative "nine old men," a majority of the justices took to the most expansive definition of the commerce clause like a drunk to drink. The Court blessed the secretary of agriculture's power to set minimum prices for milk sold intrastate. "The marketing of intrastate milk," wrote the Court in the 1942 Wrightwood Dairy case, "which competes with that shipped interstate would tend seriously to break down price regulation of the latter." Yes, so? What was the Court's point? Only that nothing — especially not liberty — should be permitted to get in the way of the national government's power to regulate the economy.

As hard as it may be to notice, Wrightwood Dairy still preserved something of a distinction: the intrastate sale of milk obviously entailed an act of commerce. Did that mean the commerce clause barred the national government from regulating noncommercial activities? Not for long.

Enter Roscoe Filburn . . .

--From The Future of Freedom Foundation, Freedom Daily, August 1995,
The Commerce Clause: Route to Omnipotent Government

[Filburn] wasn't growing wheat as something to use for commerce at all, in fact. He was simply growing wheat in his back yard and feeding it to his chickens. That's not commerce. That's just growing your own food.

But get this: The government insisted he pay a fine and destroy his wheat. So Filburn took the government to court, arguing that the federal government had no right to tell a man to destroy his food crops just because they wanted to protect some sort of artificially high prices in the wheat market.

This case eventually went to the US Supreme Court. It's now known as Wickard v. Filburn, and it is one of the most famous US Supreme Court decisions ever rendered. . . .

The US Supreme Court sided with government tyranny

. . . The federal government claimed authority under the Commerce Clause of the US Constitution (Article 1, Section 8), even though the Commerce Clause was originally written primarily to prevent states from erecting tariffs, not to allow the federal government to control interstate trade. But thanks to the twisted interpretation of the government, . . . the feds claimed that Filburn's growing of his own wheat effectively reduced interstate commerce in wheat. Therefore, they reasoned, they could regulate his backyard wheat production (and order him to destroy his wheat).

Because of this US Supreme Court decision in 1942, it now means the federal government can order you to halt food production in your own back yard by arguing that when you grow your own food, the amount of food you purchase from other food providers is reduced, meaning that your food production impacts interstate trade and therefore can be fully controlled by the federal government.

In other words, the federal government claims the authority right now -- even without the Food Safety Modernization Act -- to knock on your door and order you at gunpoint to destroy all the food in your garden, your greenhouse or your farm. They can order you to destroy all seeds in your possession and all food harvested from your own garden. And they can do all this with the full protection of U.S. law by simply citing the precedent set in Wickard v. Filburn in 1942 as ruled by the US Supreme Court.

Mike Adams proposes a correlation between what we are seeing occur relatively slowly here in the United States to what occurred recently in Venezuela on a faster timeline:

[G]overnment is constantly trying to expand its power to the point of tyranny. As a current example of this, look at what just happened with [Hugo] Chavez in Venezuela. He has now been granted what are essentially dictatorial powers over the country (http://www.washingtonpost.com/wp-dy...). Chavez is now the King of Venezuela, and whatever he says is now law. Venezuelan citizens are now slaves to his tyranny, and they must follow his orders or be executed.

The United States is moving in precisely the same direction. First, power gets stripped away from the People little by little. Then it gets concentrated in the hands of a few regulatory agencies who write their own laws and who stay in power year after year because none of their officials are elected. . . . And then, over time, a few powerful individuals concentrate power from those agencies into their own hands. Before long, the country is run by a handful of power-crazed tyrants who disregard all freedoms and rights of the People.

This is precisely what the FDA is doing with the Food Safety Modernization Act. Backed by yet more funding and a new army of agents, plus the Supreme Court ruling that says the federal government can order you to destroy the food you're growing in your own back yard, the FDA can now pillage the countryside, going from farm to farm and house to house, burning fields and ordering the citizenry to destroy their plants, seeds and crops. This is exactly what they've been doing to raw milk producers and food coops, by the way.

That is no exaggeration. It is a documented "legal" precedent established in Wickard vs Filburn, and it can be used at any moment to destroy the ability of people to grow their own food. . . .

What will you eat when the government destroys your local food supply?

. . . When the GMO crops suffer a mass catastrophic failure, and the monocultured wheat dies from a global viral infection called ug99 "rust", what will you eat? . . .

Those people who have the foresight to grow their own gardens and protect their food sources from the tyranny of the federal government may . . . have a chance at surviving. The rest . . . [?]

Big Government declares war on the local food movement

Make no mistake, folks: the government is attempting to destroy the local food movement. They are trying to wipe out small, organic farms that compete with corporate agribiz in the same way the FDA has long plotted to destroy natural health supplement companies who compete with Big Pharma.

It's all about wiping out the little guys and protecting the monopoly markets of the largest and most influential corporations that are poisoning the earth and destroying your health.

Side Note

In the original article from which I am quoting, here, Adams makes this sweeping statement but doesn't demonstrate the point until several paragraphs later. Let me place it in context here:

Keep the big picture in mind as you consider all this: When teens are poisoned by the aspartame in diet soda, the FDA does nothing. When children are given cancer by the sodium nitrite in hot dogs, the FDA does nothing. When countless thousands of Americans suffer heart attacks and cardiovascular disease each year from the partially-hydrogenated oils used throughout the food supply, the FDA does nothing. But when you grow fresh produce in your own back yard and carry it to your local farmer's market to sell it without government permission, you will be arrested by the FDA as a criminal.

--I think the FDA's behavior in these regards is well established. And with these kinds of well-established track records, do we have any grounds for questioning Adams' statement?

I don't think so. --JAH

As Wickard vs Filburn clearly demonstrated, the government does not believe you have any natural right or Constitutional right to grow your own food. In fact, the government believes it has the right to order you to destroy your food at the time of its choosing.

Don't think this could happen to you? Filburn didn't either. The idea that his own government would show up at his door and order him to burn his field of wheat was simply unimaginable. Similarly, the idea that the FDA would tear across the countryside wiping out small family farms is unimaginable to many Americans today. But that's only because they don't know their own history and they put far too much faith in the flimsy idea that the government somehow, in some way, respects the rights and freedoms of the People. . . .

Five years ago, I joked that people might one day be arrested for smuggling broccoli across state lines. Today, that joke [may become] a sad reality. The mere act of growing food and selling it to your neighbor without government permission is about to become a criminal act. And no, small farms are not "exempt" from HR2751. They must provide financial information and apply to the FDA to be granted exemption status. That sounds a lot like slaves begging for mercy from the king, doesn't it? . . .

Shame on all those who supported this bill. May history have mercy on their souls for the suffering and injustices they have unleashed upon us all.

Adams notes that S.510 passed the Senate and was sent back to the House by "the entire U.S. Senate, Republicans and Democrats alike." As far as he is concerned--and I'm afraid I would have to agree with him--their vote proves them "traitors to the freedoms upon which [the United States of] America was founded."

This article (save the excursus and side note) comes from--and with special thanks to--Mike Adams' NaturalNews.com

--In case you missed my previous posts on this subject that include practical suggestions for action (necessary even this morning), please see The House of Representatives will subvert your rights to quality food tomorrow (12/21) unless . . .

The House of Representatives will subvert your rights to quality food tomorrow (12/21) unless . . .

. . . Unless you and thousands of others scream your heads off.

To quote John F. Tate, president of Campaign for Liberty,

On Sunday evening, Harry Reid and Mitch McConnell conjured up a backroom deal to revive the so-called “Food Safety Modernization Act” – passing it by unanimous consent after it was thought dead.

Even though dozens of Republican senators opposed the bill only a few weeks ago, not one member – not even Tom Coburn, who led the opposition to the regulatory boondoggle – dared speak up to oppose the FDA’s food takeover.

This is truly outrageous!

They shoved it into HR 2751, what used to be known as the "Cash for Clunkers" bill. They gutted HR 2751 as it was written, and "simply" substituted S510! So the "new" HR 2751 may (indeed, probably will) come up for a vote as early as tomorrow (Tuesday).

Tate commented,

Liberty is never more in danger than when legislators are looking to cut a quick deal, and last night was another harsh reminder of this fact.

It only required one senator to speak up and object to further empowering [the current Congress'] radical regulatory agenda to bury the bill.

But that was not to be.

Main problems with the bill: As noted in the past, it gives the FDA unbridled authority to shut down virtually any farm operation merely on the basis that some bureaucrat somewhere had "reason to believe" that something on the farm might be harmful. No judicial review. No appropriate due process. Just suspicion.

And look whose "beliefs" will control your food supply if the act passes tomorrow!

As the Farm-to-Consumer Legal Defense Fund noted this morning:

[The] FDA does not respect individuals' rights to obtain healthy, quality foods of their choice. The agency has stated as a matter of public record, that . . . "There is no absolute right to consume or feed children any particular food."

Indeed, when a group of citizens sued the FDA for the right to drink raw milk, the FDA replied,

"Plaintiffs' assertion of a 'fundamental right to their own bodily and physical health, which includes what foods they do and do not choose to consume for themselves and their families' is . . . unavailing because plaintiffs do not have a fundamental right to obtain any food they wish."

More to the point of the bill itself, however, consider, please, that,

The Act does nothing to address [the worst] food safety problems in this country, such as those resulting from confined animal feeding operations (CAFOs), genetically modified organisms (GMOs), and various contaminants (e.g., BPA, pesticides, herbicides, etc.).

The FDA has shown that it cares very little about these significant and proven sources of danger. It refused to go after the egg producer whose half-billion tainted eggs became the rallying cry for those who claim we need the bill. It has been well aware of this producer's problems for years. But it maintains a rather hands-off approach to them. After all, it's a big producer and it employs a lot of people.

Meanwhile, it makes sure to pursue every minor problem it hears about on small farms and among raw and unprocessed food advocates. (See my post with a whole series of sample videos.)

Notice that the agency

has used its existing power to benefit the pharmaceutical and biotechnology industries at the expense of public health (e.g., allowing the overuse of antibiotics in confined animal feeding operations and refusing to require labeling for genetically-modified foods). This Act does not address the fundamental problems at this agency in order to truly protect public health.

Moroever,

[The] FDA has adequate powers under existing law to ensure food safety and effectively deal with foodborne illness outbreaks. FDA has power to inspect, power to detain product and can readily obtain court orders to seize adulterated or misbranded food products or enjoin them from being sold. The problem isn't that FDA needs more power; it's that FDA does not effectively use the power it currently has. The agency has power to inspect imported food yet inspects only 1% of food coming into this country from outside our borders.

From a constitutional perspective:

The Act will expand FDA's involvement in regulating food in intra-state commerce, further interfering with local communities. State and local governments are more than capable of handling any problems related to food in intrastate commerce. All the major outbreaks of foodborne illness involve either imported food or food in inter-state commerce.

And from a practical perspective:

The Act will hurt our ability as a nation to be self-sufficient in food production because it has more lenient inspection requirements for foreign than domestic producers creating an unfair advantage for food imports. Giving an advantage to foreign producers will only increase the amount of food imported into this country that does not meet our domestic standards. The Act does not address food security--the ability of a country to produce enough food to meet its own needs.

Please contact your Representative first thing Tuesday morning.

I just used the petition capacity of DemocracyInAction.org to send a modified version of their standard anti HR 2751 letter to my representative:

Sir:

While there is no question that food safety has been lacking at the large, multi-million-dollar corporate food producers, HR 2751, the so-called "Food Safety Modernization Act" creates unbelievably burdensome requirements for thousands of small family farmers who exceed $500,000 in mere food REVENUE, whether they make a profit in the end or not.

As a small business owner myself, and a fan of our local farmers' market, I am appalled at this notorious attempt by Big Ag to stifle their organic and whole foods competitors.

I urge you to OPPOSE the passage of HR 2751's so-called "Food Safety Modernization Act." Leave intRA-state commerce in the hands of the states, where it belongs . . . and create a bill that provides teeth to deal with the companies that are really doing damage to our health through their confined animal feeding operations (CAFOs), genetically modified organisms (GMOs), and BPA, pesticides, herbicides, and so forth.

Please.

Sincerely,

John Holzmann

A shorter note (more to the point) on another DemocracyInAction page:

No Food Control (S.510/HR.2751) this Year!

I oppose including the fake "food safety" (actually "food control") bill, S.510/HR.2751 or any of its language in any Bill before Congress, this year.

"No one's life, liberty, or property are safe while the legislature is in session." SO FINISH YOUR BUSINESS AND GO HOME!

I want the new Congress to find ways and means to protect our local and natural food production and distribution, as well as our natural health remedies, from Federal FDA control.

Divest the FDA of any authority over our food and supplements!

Health and Food Freedom for food safety is an important issue to me, and to many millions of Americans, and I will remember your votes!

Make your voice heard.