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.

S510 back from the dead

Ay-yi-yi!
Looks like Monsanto, Cargill, and the other major industrial food suppliers may get their way and get “their own“ bought-and-paid-for food czar in charge of all food production in the U.S.

Speak of tyranny!
Please read S 510 Food Safety bill is still alive and may unleash a new army of FDA agents . . . and call your senators.
What‘s got me worked up?

• Even with the Tester Amendment (that permits farms with less than $500,000 annual revenue off the hook), this law encompasses virtually any and every viable “real“ farm in America. --$500,000 revenue will hardly permit enough profit to support a single family, much less an operation that requires a non-family employee or two.
  
• Constitutionally, according to the 5th Amendment, what is the U.S. Congress doing providing for the FDA to regulate local food growers/producers/distributors? If i grow fruits and vegetables (or meat or milk or any farm product) solely for sale to people in my own state, according to the 5th Amendment, the Congress ought not to be seeking to regulate my trade with my neighbors. (But, of course, the federal government has justified its infringements in these matters for decades. So I should probably simply acquiesce, right?)
  
• The issue that Mike Adams emphasizes in the article I have highlighted here: the plan to move full regulation of food production to the administrative whims of individual bureaucrats who can be bought off by special interests--bureaucrats who can always hide behind the justification that they had “reason to believe“ that something might be harmful. No judicial review. No appropriate due process. Simply the decision of a new “food czar.“

And we think we live in “the land of the free“?

Love to buy fresh fruit from the neighbors? Corn from a roadside stand? Pie from a skilled baker friend? Such pleasures may soon go bye-bye!

Sorry. I'm so "into" research, I'm afraid I forgot how to "market" ideas!

The title of this post tells the real story of my post last night.

Is the world going to come to an end if S510 passes . . . and especially without the Tester-Hagan amendment? No. The world won't end.

But plan to see the federal government, by means of its ever-vigilant-against-the-little-guys/ever-vigilant-in-behalf-of-the-big-guys FDA, cracking down hard on the family gardeners and small-town farmers who dare attempt to sell their fruit or vegetables or homemade pies without first paying $500/year in protection money (not to mention filing mounds of newly-required government reports)!

Yes, by everything I can see, that really is the import of this egregious attempted power-grab on the part of the major industrial agriculture vendors.

I know. It seems hard to believe. But, please: READ THE EVIDENCE. Follow the links.

It really is that bad.

S510--Industrial ag businesses show their true colors!

S510 is all about food safety. That's what the bill's sponsors want us to believe. That's its title: The FDA Food Safety Modernization Act.

But when you get down to it, is it really about food safety? Or is it, as so many federal bills and rules and regulations seem to be today, window dressing on the problem ("lipstick on the pig"), a protection scheme for major agribusinesses, and a brilliant (hidden) means for those self-same agribusinesses to put their smaller competitors out of business or, at least, at a serious disadvantage?

The Weston A. Price Foundation sent out the following update on Monday evening:

Last week, the Senate voted 74-25 to move to consideration of S.510, the Food Safety Modernization Act. After thirty hours of debate and behind-the-scenes negotiations, the Senators released a final Managers Amendment that includes a compromise version of the Tester-Hagan amendment.

The compromise Tester-Hagan amendment . . .

• Exempts producers whose revenue is less than $500,000 a year and who sell more than half of their products directly to consumers or "qualified end-users."
  
• Specifies that "retail food establishments" -- which are exempt from the existing requirements to register with FDA and from the other new federal requirements in this law -- includes businesses that sell directly to consumers through farmers' markets, roadside stands and other local outlets.
  
• Requires the FDA to conduct a study that looks at the incidence of foodborne illness in relation to the size and type of the facility, as well as the risks associated with commingling, processing, transporting, and storing food, "including differences in risk based on the scale and duration of such activities." In other words, for the first time, the FDA will have to collect and evaluate data on how different management practices affect the risk of foodborne illness.
  
• Requires the FDA to consider the data mentioned above as it defines "very small businesses," which will also be exempt from the new requirements.

(For the full text of the amendment, go here.)

On constitutional grounds,I don't see how the Senate has any right to make any such rule concerning businesses whose commerce is conducted wholly within one state or another. The federal government, according to the Constitution, has the right and responsibility only to oversee interstate commerce, not intrastate commerce.

But ignoring that not-so-fine point of constitutional law, and granting the federal government powers it has no right to have, still, considering the requirements of the unamended law--requirements that place a relatively minor burden on large ("industrial scale") food processors, but could put smaller, family-run operations out of business--it seems to me that the Tester-Hagan Amendment is the least the Senate should do in behalf of small-scale and local farm sand food distributors.

Anyway.

So the Tester-Hagan amendment is currently included in S510. Good news, yes?

Maybe not!

According to Weston A. Price Foundation:

[E]ven though an agreement was reached on the Tester-Hagan amendment last week, the issue is . . . not over. The final vote on the bill has been delayed until Monday, November 29. . . . And, in the meantime, Agribusiness has shown its true colors.

For over a year, the big Agribusiness trade organizations have supported passage of S.510. From Agribusinesses'' perspective, the bill was a win-win: they could absorb the costs of the regulations because of their size; they'd gain good PR for supposedly improving food safety practices; and the competition created by local food producers, which is rapidly growing, would be crushed by the regulatory burdens.

This was only speculation until now. But when the Senators agreed to include the Tester-Hagan amendment in the bill, . . . twenty Agribusiness trade organizations fired off a letter stating that they would now oppose the bill.

The letter from the Agribusiness groups states:

[B]y incorporating the Tester amendment in the bill, consumers will be left vulnerable to the gaping holes and uneven application of the law created by these exemptions. In addition, it sets an unfortunate precedent for future action on food safety policy by Congress that science and risk-based standards can be ignored.

What science and risk? No one has produced any data or evidence of any widespread problems caused by local producers and marketed directly to consumers. All of the major foodborne illness outbreaks have been caused by products that went through the long supply chains of Agribusiness.

Agribusinesses' real concern about the Tester-Hagan amendment isn't food safety, but the precedent set by having Congress recognize that small, direct-marketing producers are different, and should be regulated differently than large Agribusinesses.

Agribusiness is trying to convince the Senators to pull the Tester-Hagan amendment back out. While the amendment is currently part of the Managers Package, the amended version of the bill agreed to by six bipartisan sponsors, nothing is certain until the actual vote.

ACTION TO TAKE

This Thanksgiving week, please take a moment to call or email your Senators to tell them to hold firm on KEEPING the Tester-Hagan amendment part of the bill.

You can call the Capitol Switchboard at 202-224-3121 or go to www.senate.gov to find their website (if the phone lines are busy, the best way to reach them is through the Contact Page on their website)

Oh, come on! I can hear some of my readers say. What's the big deal? Indeed, if you have read the Snopes article on the subject of the Food Safety Acts, you may be tempted to say the entire concern is overblown and tantamount to a hoax. After all, their attempt at a level-headed evaluation says the grounds for concerns expressed about these bills possibly "eliminat[ing] home gardens and put[ting] organic farmers out of business" are "Mostly False." Most of the claims about "dire results citizens would face should the bill pass . . . [were/are] unwarranted by anything stated within the bill itself."

Whew! Relax! Take a deep breath!

. . . Interesting, then, to see the same Snopes article suggest that "Sources such as the Farm-To-Consumer Legal Defense Fund are better starting points for grasping some of the issues regarding how [the bill] might affect small farmers."

So let's go to the Farm-To-Consumer Legal Defense Fund (FTCLDF) website and find out what they have to say.

The Snopes article, written in early 2009, actually links to an article that has to do with a bill that is now out of date.

So let us take an article that deals with the situation we face today.

Sign the petition to Reject S.510, it begins. "More than ever S510 represents a major threat to the local food movement, states' autonomy to regulate food, and the country's ability to become self-sufficient in food production," it continues.

Whoa! What?!?

Because S510 is really a parallel to a House Bill (HR2749), and the arguments for and against one are generally good for and against the other, I am taking the best material from articles about both bills to help you understand the issues at stake.

In HR 2749’s Real Impacts: a Response to Consumers’ Union, FTCLDF writes,

The FTCLDF agrees that the industrial food safety system has serious flaws and needs to be fixed. The country has seen numerous outbreaks of foodborne illnesses caused by imported foods or domestic foods that were processed in huge facilities and shipped throughout the country. Unfortunately, [the bill] does not focus FDA’s efforts on these very real problems. Instead, it creates a regulatory framework that will heavily burden the small farms and local food processors, the very people who provide a safe, healthy alternative to the industrial food supply.

Food safety is a priority shared by everyone. The FTCLDF calls on [proponents of the bill] to explain exactly how the bill would address the industrial food supply problems without harming the local food movement. The fact that massive, industrial food companies, such as Peanut Corporation of America, have killed or sickened people is a strong argument for regulating such companies, and we applaud CU’s efforts to improve the industrial food supply. But the wrongs committed by these companies are not a valid basis for harming the hundreds of thousands of safe, healthy small farms and artisan producers who will be burdened, or even driven out of business, by [the bill].

FTCLDF then goes into detail about the problems:

• $500 Annual Registration Fee (not to mention paperwork required to report to the FDA) for any "facility" that holds, processes, or manufactures food.
  

  While the statute excludes “farms,” the FDA’s current regulations take a very narrow view of what qualifies. Under the existing regulations, a place that grows food and does any processing of that food for sale [is] not . . . a farm, and thus would be subject to [the bill]. . . . In other words, a farm that washes greens, cut vegetables, or dries fruit before selling it would be forced to register and pay the annual fee under the regulatory definition of “farm.”
  
  Currently, FDA has a guidance document that modifies the regulation and allows “farms” to process food so long as the ingredients are grown on the same farm. [However, e]ven under the guidance document, many small farms and artisanal producers could be required to register. FDA has not strictly enforced this requirement so far, but that is no guarantee about future actions by the agency. And if the agency were to revoke the guidance document and enforce the registration requirement in accordance with the definition of “farm” contained in the regulations, many farms would be required to register and, under the FSEA, pay an annual fee.
  
  Moreover, farms are not the only issue. There are thousands of individuals who are making artisan foods, such as making jams, breads, fermented vegetables, cheese, or other foods, which they sell to directly to customers at local farmers markets and similar venues. All of these individuals would be forced to pay an annual fee of $500 to the FDA and comply with extensive paperwork burdens. Notably, the fee is the same regardless of whether it applies to an individual selling a few hundred dollars worth of product or a multi-million dollar company shipping products all over the country.
  
  It is not equitable for a local grandmother making jam from farmers’ excess fruit to have to pay the same fee as a Heinz processing plant. Nor does the FTCLDF believe local artisan food processor should be subject to the same extensive paperwork requirements as the massive industrial processing plants.

• Regulation of how farms grow and harvest crops.
  
  FTCLDF agrees . . . that [the bill] does not call for the elimination of organic practices. However, the bill’s provision directing the [FDA] to set standards for how food is grown and harvested is very troubling. For example, after the E. coli outbreak linked to spinach that was grown in California and then processed and sent all over the country, the agency developed guidelines that were based entirely on the industrial agriculture model. . . . The guidelines were expensive, burdensome, and wholly unnecessary for small, diversified farms.
  
  After FTCLDF issued its first alert, [the Food Safety bill] was amended to direct FDA “to take into consideration, consistent with ensuring enforceable public health protection, the impact on small scale and diversified farms . . .”While this is an encouraging step, it does not provide sufficient protection.
  
  The FDA has yet to demonstrate that it has any understanding whatsoever of the needs of small scale and diversified farms. And the new language does not prevent FDA from developing standards that drive such farms out of business under the guise of developing “enforceable standards.”
  
  No one has demonstrated any need for FDA to regulate growing practices on small and diversified farms. No major outbreaks have been traced to such farms. There is nothing to be gained, and much to be lost, by granting FDA this authority.
  
• And the list continues . . .

How truly problematic is this legislation? And how necessary is it to begin with? What is it really meant to address?

I thought the following articles were enlightening.

The September 2010 Acres USA magazine includes a brief report that references an article in Food Safety News. How did E. coli O145 infect romaine lettuce that then sickened people around the country? The Acres USA author notes,

One of the largest cattle feedlots in the country is located about 20 miles from the heart of Arizona's leafy green production in the Gila and Dome Valleys. Conditions in the feedlot produce huge volumes of mud, as dirt mix manure and water. When dry, hot, windy weather hits, the mud dries, the cattle breakdown clumps into dust, and the dust blows, often for many miles.

The FDA is pushing ahead with the process of establishing new leafy green food safety regulations. The new requirements fail to target . . . sick or stressed cattle shedding E. coli . . . and other [pathogens] in their manure.

Then there's the article Risk, bacteria, and the tragedy of food-safety reform from Grist.org:

It is impossible, it seems, to come up with a policy that zeroes in on the real systematic risk of the food system: the exponential expansion of hazard that comes from concentrating huge amounts of production in relatively small spaces.

Clearly, highly profitable industries like Big Food wield tremendous power in our political system. Just as no health-care reform could pass that didn't respect the privileges of the insurance and pharmaceutical industries, just as no climate policy could even be attempted without including massive giveaways to the very industries that cause climate change (see Ryan Lizza's tragicomic post-mortem in The New Yorker), food safety reform is evidently hostage to Big Food.

The Grocery Manufacturers of America, a potent trade group whose members range from Monsanto and Cargill to Kraft and McDonald's, supports S. 510. That alone tells me that the bill at best promotes marginal, techno-based solutions to the food-safety problem, ones that don't challenge the interests, or practices, of the food giants. As Food and Water Watch's Elanor Starmer recently pointed out on Grist, the bill's new inspection powers for the FDA are so weak that they would not even have prevented the notorious salmonella-tainted peanut butter scandal of 2009. And yet -- as David Gumpert argued forcefully in our forum -- those same powers may well prove too strong for the small-scale, vulnerable operations that are busily building up alternatives to Big Food. . . .

to tease out my point, let's consider the role of the federal government in regulating two kinds of dairy farms: industrial-scale ones in Wisconsin, and a small artisanal operation in Washington State.

In a fantastic investigative piece last year, The New York Times' Charles Duhigg looked at a spate of illnesses in a dairy-intensive Wisconsin county. He wrote:

There are 41,000 dairy cows in Brown County, which includes Morrison, and they produce more than 260 million gallons of manure each year, much of which is spread on nearby grain fields. Other farmers receive fees to cover their land with slaughterhouse waste and treated sewage.

After an early thaw last year, some of those quarter-billion gallons of cow shit found their way into people's drinking water. Reports Duhigg:

In Morrison, more than 100 wells were polluted by agricultural runoff within a few months, according to local officials. As parasites and bacteria seeped into drinking water, residents suffered from chronic diarrhea, stomach illnesses and severe ear infections.

So here we have a case of vast concentration of production, and a situation wherein known microbial pathogens (including E. coli and fecal coliform) are destined to foul people's water and make them ill. This is systematic, predictable risk. The federal government's response?

[R]unoff from all but the largest farms is essentially unregulated by many of the federal laws intended to prevent pollution and protect drinking water sources. The Clean Water Act of 1972 largely regulates only chemicals or contaminants that move through pipes or ditches, which means it does not typically apply to waste that is sprayed on a field and seeps into groundwater.

Now let's look at case No. 2: Estrella Family Creamery in Washington state, where Kelli Estrella and her family tend 36 cows and 40 goats and turn their milk into highly regarded unpasteurized cheeses. New York Times food-business reporter William Neuman reports that -- unlike those Wisconsin dairies -- the Estrella operation has made no one sick. Yet FDA inspectors have found listeria in some of her cheeses -- and moved to shut down her operation after she refused to submit to a "voluntary" recall. And they've banned Estrella from selling both her hard and soft cheeses, even though only her soft cheese tested positive for listeria.

Now, I don't want to make light of the threat of listeria, a truly nasty bacteria. But let's look as the risks here. Unlike the case of the Wisconsin dairies, the risks are incidental, not systematic. People made cheese for millenia before the advent of pasteurization in the 19th century -- and in much of Europe, nearly all cheese is still made with raw milk. Small children and pregnant mothers aren't regularly falling over from cheese-eating in France. Listeria can infect raw milk cheese, but by no means does it always infect raw milk cheese.

Moreover, listeria from Estrella Creamery cheese threatens only those people who knowingly buy the product, while runoff from Wisconsin's industrial-scale dairies infects everyone who lives nearby. And the threats from Estrella remain theoretical; unlike in that dairy-intensive Wisconsin county, no one has reported falling ill from eating Estrella cheese.

And yet federal officials take an our-hands-are-tied approach to the menace of tainted water in Wisconsin, and bring down an iron fist on the small dairy in Washington. It's hard not to conclude that the disparate responses stem from the fact that industrial-scale dairy farmers -- and the very few large processors that purchase their milk -- have bought influence in Washington, while artisanal cheese producers haven't. This is food safety as protection racket.

For Big Food, the answer to these microbial dilemmas might well end up being: sterilize it all. Most cheese consumed in the United States is made from pasteurized milk; make them pasteurize all of it. And if runoff from fields sprayed with waste from massive dairies is fouling drinking water, then make those big dairies "treat" the waste with antimicrobials before spreading it.

But Bilger's profile of Sandor Katz suggests a different approach. The real systematic risks in our food system don't come from bacteria itself; indeed, bacteria is fundamental to life. The problem comes from concentration of bacteria to the point where sicknesses become inevitable. So de-concentrate the food system, don't sterilize it.

And as for cases like Estrella Creamery, the push should be to identify the source of the listeria and address it, not to shut the dairy down.

Of course, in our political system, creating a food-safety regime that targets the real systematic risk in food production seems impossible. So, while we take small steps forward like S. 510, let's not lose sight of the need to rein in the giant corporations that generate most of the risk, and nurture the small producers who are doing the necessary work of de-concentrating our pathogen-concentrating food system.

Or, back to FTCLDF and the article FDA's Ace in the Hole:

Despite there being not even a single report of illness, there have been numerous instances over the past four years where licensed raw milk dairies in New York and Pennsylvania have had their sales suspended due to positive tests for Listeria monocytogenes (L-mono), a sometimes virulent foodborne pathogen. The farmers typically lost a week to two weeks in sales plus the price of any milk the farms received back after issuing a recall due to the discovery of L-mono in a milk sample. Some farmers were also fined for adulteration because the raw milk was deemed to contain a “harmful substance which may render the milk injurious to health.”

Sounds good, doesn't it? Why should the government play games with L-mono? If the bacterium is "sometimes virulent," doesn't it make sense to assume it is dangerous?

Well . . . If that's the standard, then the government had better shut down virtually all milk and meat producers, all farms, all water processing plants, all everything. Shouldn't it? Virtually all meats and milks and farm products and water we drink: they all contain pathogens. So why these particular milk producers? Could it, by any chance, have anything to do with the political power of the milk producers who prefer pasteurization over holding themselves to a higher standard of cleanliness throughout the production process (and not only after pasteurization)?

For the last thirty-eight years, and possibly further back, there have been no reports of illness caused by the consumption of raw milk that was attributed to L-mono. . . .

Part of the reason there have been no reports of illness may be because "[t]here are many subtypes of Listeria monocytogenes; many of these subtypes have not been implicated in human illness." And, "Even if the subtype of L-mono is virulent, it still needs to be determined whether the amount of bacteria in the food is enough to cause illness in humans. FDA has a “zero” tolerance policy for L-mono, a standard widely rejected by the scientific community throughout the world. The European Union (EU) allows up to 100 organisms per gram in food at the end of its shelf life."

So what is going on here? Politics?

Check this out:

L-mono is widespread in the environment. If environmental testing at a food plant is positive for L-mono, foods produced in the plant at that time could be found to be adulterated due their having “been prepared, packed, or held under unsanitary conditions whereby it may have become contaminated with filth, or whereby it may have been rendered injurious to health.” FDA didn’t find any L-mono in the environment at the Morningland plant but it was not for lack of trying; the agency took one hundred environmental swabs in the plant, all of which came up negative. The agency inspector collecting the swabs promised the dairy’s owners, Joe and Denise Dixon, that they would be getting a copy of the report but to this date no report has been received.

. . . FDA’s position is that if a food sample tests positive for L-mono or any other pathogen, any other food produced on the same equipment is adulterated. This position was also taken by the Missouri Milk Board in its handling of the Morningland case [even though, as indicated, they found no evidence that the equipment at Morningland had been contaminated!].

A Milk Board inspector told Joe that the embargoed cheese would still be suspect even if samples of it did test negative. When Joe asked the inspector, “Why do we even test?” There was no response.

Recently, the United States Food and Drug Administration (FDA) has pressured farmstead cheesemakers in Washington state and Missouri into recalling thousands of pounds of cheese due to samples testing positive for L-mono even though in neither case was there a single report of foodborne illness blamed on the farmstead operations.

Compared to the raw milk incidents mentioned above, the stakes are much higher here. Unlike the raw milk producers who can only sell in their own states due to the federal interstate ban, raw milk cheese aged at least sixty days can be sold anywhere in the U.S. and has a longer shelf life, meaning a great deal more money can be lost due to a recall.

The Missouri farmstead operation, Morningland Dairy, not only recalled over sixty thousand pounds of cheese but there is an additional fifty thousand pounds at the facility that is currently under embargo. The value of the embargoed cheese is around $250,000. In the thirty years it has been in business, there has never been a single case of foodborne [illness] attributed to the consumption of any of the dairy’s products.

The Missouri State Milk Board, pressured by FDA, has ordered that the cheese “be condemned as an adulterated, unlawful product” and has sought a court ruling that the product be destroyed. An inspector from the Milk Board has told the dairy that it must destroy all of the remaining cheese in order to get back into business; [at the time of writing, on October 13, 2010] cheese production at Morningland has been shut down since August 26, shortly after the Milk Board was notified by the California Department of Food and Agriculture (CDFA) that samples of Morningland’s cheese products had tested positive for L-mono and Staphylococcus aureus. [Note in orginal article: Staph aureus, is present normally on everybody’s skin and is considered protective. Most subtypes of this organism do not produce the toxin which can occasionally cause vomiting. Gastrointestinal illness from Staph aureus is self limiting—meaning medical treatment is not necessary].

The article concludes:

The cheese cases are an indicator of what could happen if S510, the FDA Food Safety Modernization Act, passes into law giving FDA mandatory recall power. The cases show how the recall power along with the food safety plan requirement [see HARPC] in the bill would be an effective way for the agency to cripple raw dairy producers who have harmed no one with their products. If S510 passes, state agencies and laboratories will be getting more funding from FDA and the influence of the agency on states in pushing its anti-raw milk agenda will increase. In working toward this end, “Listeria monocytogenes,” in Joe Dixon’s words, “can be FDA’s ace in the hole.”

For more on this subject, please see the Farm and Ranch Freedom Alliance . . . or look up tester-hagan amendment or food safety modernization act.

It is time to put an end to colossal businesses calling the shots in Washington for their own benefit!