I don’t even know where to start. I’ve been sitting here, staring at the screen and shaking my head in disbelief, for the last half-hour. From the moment I started reading H.R. 875, the bill introduced to the House on February 4th, 2009, my heart started to sink. Those who know me well know that my normal course of action when I come across something I consider to be unjust, immoral, or just plain lacking in common sense, is to become riled, but I could not muster even a hint of such ardour at the sight of the Food Safety Modernization Act of 2009.
Well, when the CPSIA was passed, no one was minding the store. Only Ron Paul and a few other cranks raised a complaint. Apparently on this bill, only a few blogging cranks are minding the store. I’ll barely add to the number of cranks, but the FSMA has not yet passed, so there’s time to prevent the damage. The Food Safety Modernization Act, as currently drafted, will ruin most of the farmer’s markets in America.
Without going into a detailed textual analysis (click the link above), the FSMA requires all “food establishments,” which means anyone selling or storing food of any type for transmission to third parties via the act of commerce, to register with a new Food Safety Administration, to keep copious records of sales and shipment by lot and label, to subject themselves to at least annual inspections by FSA inspectors, and to provide detailed handling instructions for safe processing of food. That may work for Nabisco and the people who supply McDonald’s, but it’s probably not going to work at, for instance, the farmer’s market I visit without fail every weekend beginning in late March. The place is infested with hippies and rustic sorts who couldn’t fill out a spreadsheet and can’t afford legal advice on how to farm, but know a thing or two about growing good peppers.
Nor will the more detailed recordkeeping and lab testing requirements, and the monthly inspections, to be required of farmers’ markets which offer delicacies such as bacon or cheese, both of which I purchase at my own farmers’ market because I trust the farmers involved, and because I won’t give up absolutely fresh tomatoes even if I’m not assured they were audited by the government.
As the CPSIA illustrates, the problem with “one size fits all” regulation of business activity at the federal level is that one size, in fact, doesn’t fit all. Lead paint testing requirements, which are just a cost to be passed on to millions of customers by a Mattel or GAPKids who see little increase in price per unit because they test in bulk, simply kill small, artisan toymakers or small-lot clothing producers. The mandates of the FSMA likewise will cause little trouble to Hormel, but may be onerous indeed to the smallscale family farmer in Louisburg North Carolina from whom I buy sausage on saturday mornings. Even though the small farmer’s operation is cleaner than a factory slaughterhouse, and even though his pigs live in far healthier conditions than those from a factory farm. (I know because I’ve visited them.)
This bill can be fixed, and it should be. We’re currently undergoing a media frenzy on contaminated food, just as in 2007 we did with stories of lead paint, but farmers, even small farmers, are much better connected and have broader support than thrift stores or small crafts businesses. If you enjoy fresh food from farmers’ markets, and don’t want to eat processed glop from Big Food at every meal, contact your congressman, particularly if you live in an agricultural district, and ask about this bill. Encourage lawmakers to consider the effect this will have on family farms and farmers’ markets, and to ask themselves whether we need yet another federal food agency.
Do it for the tomatoes.
– You Are Why I Cannot Eat Good Things (PopeHat)
So, I went and looked it over, hoping that perhaps things weren’t as they seemed. I read through their definitions of the categories of “Food Establishments”, and subsequently, of “Food Production Facilities”.
(14) FOOD PRODUCTION FACILITY- The term ‘food production facility’ means any farm, ranch, orchard, vineyard, aquaculture facility, or confined animal-feeding operation.
– text of H.R. 875
I, foolishly, held up a glimmer of hope at the fact that food production facilities were defined under a different section than food establishments. Perhaps it meant an exemption? Then I came across section 206. And then I realized that no where in their definition of a food production facility did they define exactly what a “farm” or “ranch” or “orchard” technically was. Oh, wait. Yes, they did. They prefaced it with “any”. So think about that as you look at Section 206. Bold text is my emphasis. Red text is my notes. Under H.R. 875, this can be done to any:
SEC. 206. FOOD PRODUCTION FACILITIES.
(a) Authorities- In carrying out the duties of the Administrator and the purposes of this Act, the Administrator shall have the authority, with respect to food production facilities, to–
(1) visit and inspect food production facilities in the United States and in foreign countries to determine if they are operating in compliance with the requirements of the food safety law; (will your farm fall under the requirements of food safety law?)
(2) review food safety records as required to be kept by the Administrator under section 210 and for other food safety purposes;
(3) set good practice standards to protect the public and animal health and promote food safety;
(4) conduct monitoring and surveillance of animals, plants, products, or the environment, as appropriate; (so, they get free rein to watch what they want, when they want, as long as they deem it ‘appropriate’ first?) and
(5) collect and maintain information relevant to public health and farm practices.
(b) Inspection of Records- A food production facility shall permit the Administrator upon presentation of appropriate credentials and at reasonable times and in a reasonable manner, to have access to and ability to copy all records maintained by or on behalf of such food production establishment in any format (including paper or electronic) and at any location, that are necessary to assist the Administrator— (better hope you’re not a fly-by-the-seat-of-your-pants sort of person – they want records)
(1) to determine whether the food is contaminated, adulterated, or otherwise not in compliance with the food safety law; (those records better match up with their ideas, too) or
(2) to track the food in commerce.
(c) Regulations- Not later than 1 year after the date of the enactment of this Act, the Administrator, in consultation with the Secretary of Agriculture and representatives of State departments of agriculture, shall promulgate regulations to establish science-based minimum standards for the safe production of food by food production facilities. (“science-based minimum standards” – in other words, you put on our pesticides, you plant things the way we want them planted, you feed your animals the antibiotics we want you to – all in the name of something based in “science”, the same science that brought us our current broken agriculture system that results in the sort of food scares we’re having in the first place? Anyone think maybe something is wrong with that kind of “science”?) Such regulations shall–
(1) consider all relevant hazards, including those occurring naturally, (guess I can no longer drink milk from my goats, and the neighbors can’t drink milk from their dairy cows – after all, it hasn’t been pasteurized, and therefore contains naturally-occurring hazards!) and those that may be unintentionally or intentionally introduced;
(2) require each food production facility to have a written food safety plan that describes the likely hazards and preventive controls implemented to address those hazards;
(3) include, with respect to growing, harvesting, sorting, and storage operations, minimum standards related to fertilizer use, nutrients, hygiene, packaging, temperature controls, animal encroachment, and water; (*twitch* So, what did I just say a few paragraphs ago, about “science” dictating pesticides, et cetera?)
(4) include, with respect to animals raised for food, minimum standards related to the animal’s health, feed, and environment which bear on the safety of food for human consumption; (what do you want to bet requirements involve antibiotic-laced feed to “prevent outbreaks”?)
(5) provide a reasonable period of time for compliance, taking into account the needs of small businesses for additional time to comply;
(6) provide for coordination of education and enforcement activities by State and local officials, as designated by the Governors of the respective States; and
(7) include a description of the variance process under subsection (d) and the types of permissible variances which the Administrator may grant under such process.
(d) Variances- States and foreign countries that export produce intended for consumption in the United States may request from the Administrator variances from the requirements of the regulations under subsection (c). A request shall–
(1) be in writing;
(2) describe the reasons the variance is necessary;
(3) describe the procedures, processes, and practices that will be followed under the variance to ensure produce is not adulterated; (okay, so you don’t want to follow their standards – you’d better have a detailed description of what you’ll do instead – and heaven forbid that you learn as you go, and work specifically according to your piece of land and your strain of animals – you know… adapt? That would mean operating outside of the procedure, process, and practice that you gave them in your report. That’s okay, maybe they’ll let you file an amendment that will allow you to change your plans after they’re reviewed it and a month later told you it’s okay to do) and
(4) contain any other information required by the Administrator.
(e) Approval or Disapproval of Variances- If the Administrator determines after review of a request under subsection (d) that the requested variance provides equivalent protections to those promulgated under subsection (c), the Administrator may approve the request. The Administrator shall deny a request if it is–
(1) not sufficiently detailed to permit a determination; (oh, you didn’t give them enough information)
(2) fails to cite sufficient grounds for allowing a variance; or (or they think you’re supposed to follow their minimum standards regardless)
(3) does not provide reasonable assurances that the produce will not be adulterated. (in other words, Big Brother can’t keep a close enough eye on it)
(f) Enforcement- The Administrator may coordinate with the agency or department designated by the Governor of each State to perform activities to ensure compliance (quite frankly, it unnerves me that they don’t specify this beyond “perform activities to ensure compliance” – does that not scare anyone else?) with this section.
(g) Imported Produce- Not later than 1 year after the date of the enactment of this Act, the Administrator shall promulgate regulations to ensure that raw agricultural commodities and minimally processed produce imported into the United States can meet standards for food safety, inspection, labeling, and consumer protection that are at least equal to standards applicable to such commodities and produce produced in the United States.
Wow. Then we’ve got Section 401. “Prohibited Acts”. Yay?
SEC. 401. PROHIBITED ACTS.
It is prohibited–
(1) to manufacture, introduce, deliver for introduction, or receive in interstate commerce any food that is adulterated, misbranded, or otherwise unsafe; (I do love that terminology- leaves such leeway for them to simply say “oh, that is unsafe, we said so”)
(2) to adulterate or misbrand any food in interstate commerce;
(3) for a food establishment or foreign food establishment to fail to register under section 202, or to operate without a valid registration; (this certainly isn’t voluntary, now is it?)
(4) to refuse to permit access to a food establishment or food production facility for the inspection and copying of a record as required under sections 205(f) and 206(a);(we don’t need a warrant, we want to see it)
(5) to fail to establish or maintain any record or to make any report as required under sections 205(f) and 206(b); (better hope your record-keeping system is up to their snuff)
(6) to refuse to permit entry to or inspection of a food establishment as required under section 205; (didn’t they already say this?)
(7) to fail to provide to the Administrator the results of testing or sampling of food, equipment, or material in contact with food, that is positive for any contaminant under section 205(f)(1)(B);
(8) to fail to comply with a provision, regulation, or order of the Administrator under section 202, 203, 204, 206, or 208;
(9) to slaughter an animal that is capable for use in whole or in part as human food at a food establishment processing any food for commerce, except in compliance with the food safety law; (I guess I need to go process all of my rabbits and chickens before this bill gets passed, and hope that the finite number will sustain me forever, because I won’t be able to process them except in compliance with food safety law in the future – and you know the ARAs at H$U$ and A$PCA will get their slimy mitts on this one)
(10) to transfer food in violation of an administrative detention order under section 402 or to remove or alter a required mark or label identifying the food as detained; (no more giving extra eggs to my grandparents)
(11) to fail to comply with a recall or other order under section 403; or
(12) to otherwise violate the food safety law. (I love it. “If you do something to find a loophole, and we just plain don’t like it, we’ve gotcha.”)
SEC. 402. FOOD DETENTION, SEIZURE, AND CONDEMNATION.
(a) Administrative Detention of Food-
(1) EXPANDED AUTHORITY- The Administrator shall have authority under section 304 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 334) to administratively detain and seize any food regulated under this Act that the Administrator has reason to believe is unsafe, is adulterated or misbranded, or otherwise fails to meet the requirements of the food safety law. (Who needs Chavez’ version of controlling the food system when you can do it this way?)
(2) DETENTION AUTHORITY- If, during an inspection conducted in accordance with section 205 or 208, an officer, employee, or agent of the Administration making the inspection has reason to believe that a domestic food, imported food, or food offered for import is unsafe, is adulterated or misbranded, or otherwise fails to meet the requirements of this the food safety law, the officer, employee, or agent may order the food detained.
Of course, then you have the penalties. As if having them sieze it wasn’t bad enough.
SEC. 405. CIVIL AND CRIMINAL PENALTIES.
(a) Civil Sanctions-
(1) CIVIL PENALTY-
(A) IN GENERAL- Any person that commits an act that violates the food safety law (including a regulation promulgated or order issued under the food safety law) may be assessed a civil penalty by the Administrator of not more than $1,000,000 for each such act. (But don’t worry, we’ll keep it under the million-dollar mark.)
(B) SEPARATE OFFENSE- Each act described in subparagraph (A) and each day during which that act continues shall be considered a separate offense.
(2) OTHER REQUIREMENTS-
(A) WRITTEN ORDER- The civil penalty described in paragraph (1) shall be assessed by the Administrator by a written order, which shall specify the amount of the penalty and the basis for the penalty under subparagraph (B) considered by the Administrator.
(B) AMOUNT OF PENALTY- Subject to paragraph (1)(A), the amount of the civil penalty shall be determined by the Administrator, after considering–
(i) the gravity of the violation;
(ii) the degree of culpability of the person;
(iii) the size and type of the business of the person; and
(iv) any history of prior offenses by the person under the food safety law. (I would love to know what a homesteading “repeat offender” would look like in a report… “perpetrator admits to repeatedly giving excess eggs to neighbor, and keeps slaughtering chickens without permit” or something…)
Previous quotes have been primarily excerpts, but Section 406 is quoted below in its entirety. Yes, it’s that short. This part screams “states’ rights!” to me:
SEC. 406. PRESUMPTION.
In any action to enforce the requirements of the food safety law, the connection with interstate commerce required for jurisdiction shall be presumed to exist.
Just in case you were wondering – no, your state cannot protect you from the Feds. Oh, and you have no legal recourse against someone who turns you in for selling them a dozen eggs from your driveway, either, thanks to Section 407, entitled “Whistleblower Protection”:
SEC. 407. WHISTLEBLOWER PROTECTION.
(a) In General-
(1) PROHIBITION- No Federal employee, employee of a Federal contractor or subcontractor, or covered individual may be discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against, because of any lawful act done by the employee or covered individual to–
(A) provide information, cause information to be provided, or otherwise assist in an investigation regarding any conduct that the covered individual reasonably believes constitutes a violation of any law, rule, or regulation, or that the covered individual reasonably believes constitutes a threat to the public health, when the information or assistance is provided to, or the investigation is conducted by–
(i) a Federal regulatory or law enforcement agency;
(ii) a Member or committee of Congress; or
(iii) a person with supervisory authority over the covered individual (or such other individual who has the authority to investigate, discover, or terminate misconduct);
(B) file, cause to be filed, testify, participate in, or otherwise assist in a proceeding or action filed or about to be filed relating to a violation of any law, rule, or regulation; or
(C) refused to violate or assist in the violation of any law, rule, or regulation.
(2) DEFINITION- For the purposes of this section, the term ‘covered individual’ means an individual who is an employee of–
(A) a food establishment;
(B) a food production facility;
(C) a restaurant;
(D) a retail food establishment other than a restaurant;
(E) a nonprofit food establishment in which food is prepared for or served directly to the consumer;
(F) a fishing vessel; or
(G) an agent of any of the above.
I feel a little better than I did when I began this post. I’m no longer shivering. I think I have relocated my stomach. I don’t have the fight left in me to do much more than post tonight, but that will change after I’ve had some time to sleep on this. I don’t know if we can defeat this entirely (heck, NAIS has been around for years), but at the very least we need to change the language of this bill. There is no exemption for the small farmer, the homesteader, the .. anything! And as we have seen with CPSIA, lack of expressed exemption doesn’t mean it’s just assumed. It means you’re included. Whether you like it or not.
To be quite frank, I’m scared. I openly admit it. This. Bill. Scares. Me. But I won’t run scared. I’m going to stand.
Spread the word and sound the battlecry… something tells me this one isn’t going down without a fight.