There are much scarier food safety bills than HR 875 in Congress

istock_000005432570xsmallIf you care about food and farming and you use the Internet, you've probably received this particular e-mail. The title is something like, "BILL WOULD OUTLAW ORGANIC FARMING!!!!" or "MONSANTO'S DREAM BILL!!!!" It appears, inevitably, in all caps. I have upwards of 30 versions in my inbox.

Normally, it would be immensely gratifying to see such a groundswell of energy coming from the netroots on a piece of federal policy. Most of the time, my posts practically beg for such wonky revolution. But this time, I'm not cheering — I'm banging my head against the wall. Why? First, because the e-mail and the op-ed that often accompanies it are as full of misinformation as they are of exclamation points. Second, because I'm afraid that while everyone's distracted by this bill, far more sinister ones may be creeping through Congress unopposed.

After I lay out why the e-mails being circulated on H.R. 875, Rep. Rosa DeLauro's Food Safety Modernization Act, do us all a disservice, I'll get into some of the other food safety bills introduced in Congress that present very serious concerns for small farmers.

But first, some group psychology. The reason H.R. 875 e-mails have been so effective is because they've tapped into a legitimate fear that many in the small farm/good food communities have about government regulation of the food system. There's a reason that everything Joel Salatin wants to do is illegal: it's because by and large, the laws governing food production — especially food processing — in this country have been built for the big guys and imposed on the little guys to their detriment. And so the last thing we need now is to follow our one-size-fits-all approach to, say, slaughterhouses, with a one-size-fits-all approach to food safety on the farm.

That said, if we want "niche" farm products like organic to become more mainstream, if we want more farm-to-institution programs, if we want farmers markets in every town and city — well, pretty soon we're going to have to figure out how to create food safety regulations that work for small farms and processors. We can't keep hoping that small operations will be able to avoid food safety regulation because they're small, that they'll operate outside of the rules that govern most of the food Americans eat. So the crux of the matter, as I see it, is this:

How can we be proactive on food safety? How can we stop saying simply "no" and start saying "OK, provided that the rules work for us, and here are some that do"?

Busting some myths: H.R. 875

There are certainly a lot of people who have been saying no to H.R. 875, and not always for the right reasons. H.R. 875 is a bill that would split the FDA's food and drug divisions into two entities and put the food division under a newly-formed Food Safety Administration. It would allow this FSA to regulate food production facilities, which could include small farms but would not include backyard gardens, other producers of food that is not sold, nor any farms that sell food in the same state as they produce it. (Federal bills, by definition, can only govern things that go into inter-state commerce.) The bill would allow regulated facilities to be inspected but it does not require farms or processors to pay a fee for that inspection. Other bills do; see below. It would require farms to keep food safety records, but it specifies that records could be kept on paper rather than electronic form, which is important; other bills would require that the records be kept electronically, a scenario that gave me the shivers in this post.

H.R. 875 doesn't regulate retailers, which means that farmers markets would be exempt. It does not mention the word "seed" or "organic" and does not require anyone to use any pesticides they don't want to, contrary to the e-mails being circulated. It does establish "minimum standards" for pesticide and fertilizer use, but that is understood by everyone I asked to mean safety standards, not standards governing whether or not farmers must use them. And the bill doesn't regulate livestock, since the FDA has no jurisdiction over livestock (that's USDA territory), so it wouldn't impose mandatory National Animal ID. Other bills would.

But it would require imported food to meet the same standards as domestically produced food, something that would have been nice when that melamine-laced milk powder was drifting across our borders. It would increase inspection of food processing plants, especially the most risky ones (but again, wouldn't charge a fee for inspection, key for small ops). It would also require farms under its jurisdiction to write a food safety plan and keep those records I mentioned. That could be burdensome, depending on how it's ultimately worded; that's a legitimate concern that many observers have rightfully raised. But not black-helicopters-hovering-over-your-garden-level concern. Concern worthy of proactive work to make sure that the requirements are feasible for everyone.

You don't need to take my word for any this: there's myth-busting information available on the bill from the Organic Farming Research Foundation, the Maine Organic Farmers and Gardeners Association (MOFGA), Food & Water Watch, the Farmers Market Coalition, and the Organic Consumers Association. FactCheck.org takes the H.R. 875 email to task as "Internet hysteria" here. And the e-mail is even crowned an urban myth with its very own entry on Snopes.

MOFGA was part of a delegation of small farmers that met with Rep. DeLauro last week, and they described her as "very responsive" to their concerns. That bodes well, particularly if the rest of us dial back the alienating screech that insists she's doing nothing more than Monsanto's bidding. (Yes, conspiracy theorists, her husband, democratic pollster Stan Greenberg, did do a consulting job for Monsanto 10 years ago. He also did one for Nelson Mandela. I'd say they balance out.)

And from the other peanut-policing galleries

Food safety is all the rage this year in Congress, and rightfully so: between tainted jalapenos, spinach, peanuts, and pistachios, the food supply needs some major help. Everyone seems at the ready with their own version of the solution. But as I feared in a previous post on produce safety, many of the proposed solutions are expensive, technologically complex, and may not actually work.

Perhaps the worst of the lot is HR 1332, Rep. Costa's Safe FEAST Act of 2009, which is backed by the Big Ag group Western Growers. It would create a HACCP system for produce. (HACCP is the set of burdensome recordkeeping requirements credited with hastening the demise of many small-scale slaughter facilities.) It doesn't take the size of operations into account. It would pay for inspections by charging fees to farms and processors and would hand the duty of inspection over to third-party certifiers. Because yeah, that's worked so well for us to date.

Then there's Rep. DeGette's H.R. 814, which actually does mandate a National Animal Identification System, which we and lots of other people have major concerns about. And there's H.R. 759, offered by Rep. Dingell, which requires traceability of food from farm to restaurants and requires that the recordkeeping be done electronically. It also charges fees to processors — small or large — for inspections.

None of these bills are good for small farmers, and I hope we might agree that they would all be worse than H.R. 875.

So here's the kicker: According to everyone with whom I've spoken on the Hill, H.R. 875 is dead in the water. Rep. Waxman, the chair of the committee with jurisdiction over food safety legislation, has made it clear he is not going to move DeLauro's bill forward. Rep. Dingell's H.R. 759 is the one that the committee will run with in all likelihood. Many inside-the-Beltway observers assume we'll end up with a hybrid between Dingell's bill and Costa's Safe FEAST Act, much to the delight of Big Ag. In a slightly better-case scenario, parts of DeLauro's bill will get inserted into the final product — parts that we are not helping her improve by calling her a Monsanto shill and promptly disengaging after we forward this email to all our food-movement acquaintances.

So what can we do?

I'm not OK with the assumption that we'll end up with a Dingell-Costa monster hybrid to govern the safety of our food system. That's because I think we have the potential to dramatically reform these bills when they move forward (which they haven't yet). The frenzy over H.R. 875 shows that it is possible to mobilize a lot of people around a food safety bill, and it shows that there's a groundswell of support for making food safety regulations small-farm friendly. If we can shift that energy to where it's needed and hammer home our message — we want safe food and a diverse food system! — and then offer concrete alternatives, then I think we have some hope. MOFGA has a great synopsis of the principles that should guide this work; other groups from New England to North Carolina to California are developing on-farm food safety guidelines that work for small farms. That means we'll have effective alternative models to show our legislators.

Congress isn't going to move forward quickly with any of these bills, but we can start early by calling our representatives and telling them what we want to see in food safety legislation. Begin with MOGFA's list and add your own from there. Mention the serious concerns with Costa's and Dingell's bills, H.R. 1332 and H.R. 759. When these bills begin moving forward, we'll let you know and suggest other actions to take. Join the list-servs of the groups mentioned above that are working to strengthen DeLauro's bill. And if you receive a misleading e-mail about H.R. 875, point the sender to some of these groups' resources.

'Cause I don't know about you, but I think it's high time that we set the food safety agenda instead of just reacting to it.

25 Responsesto “There are much scarier food safety bills than HR 875 in Congress”

  1. Eric Reuter says:

    There are two fundamental concepts missing from this debate that need to be addressed:

    1) What constitutes safe food? As Salatin has repeatedly pointed out, our system is almost entirely based on process, rather than product (i.e. do these steps and the food must be safe rather than this is what safe meat is).  Regulations are starting from a fundamentally flawed premise, which is that a process can be perfected.

    Look at it this way. Suppose, instead of deciding all the steps a farm had to take to ensure its produce was safe, that we decided exactly what safe meant. Xppm e. coli in a swab test, for example. Once you have a standard for what safe actually is, worry less about how the food gets there and worry more about keeping it at that standard. If government research dollars came up with a simple, inexpensive swab test for e. coli that every small farmer could use to test their lettuce once a week, we could have a clear and easy way to demonstrate the safety of food without any need for top-down regulations. Hell, require Dole to print the e. coli test results on each bag of lettuce, but ease off the crazy processing rules. Let each farmer figure out the best method that works for them to achieve whatever magical standard constituted "safe".

    Same for meat. We don't actually have a clear standard or definition for what safe meat is, or if we do, we don't apply it consistently. For example, in Missouri, meat slaughtered at a custom processor is safe to give to friends, donate to the poor, feed to children, but not to take money for (read more about this here).  This tells me that we don't even know what we're actually regulating. If we had standards that defined what safe meat WAS, rather than what processes ought to result in it, we could then allow diversified ways of getting to the desired end point rather than imposing inherently inflexible rules that don't adapt to circumstances and thus don't work very well.

    If we define safe meat, and I can produce meat that meets those standards butchering on-farm, then I ought to be able to sell that. Salatin makes this very point in observing that his hickens are far cleaner than grocery store chickens, despite the law's insistence that they can't be because they haven't followed proper procedure. It's this procedural mentality that makes food safety regulation so onerous for large and small farms alike.

    2) There is a fundamental difference between direct-market and commercial food production and sales. The reason we have food safety regulations is to protect consumers who are unable to police their own products due to the integrated nature of the food system. These laws only arose when food production and consumption moved to the national level rather than the local. Regulations are entirely appropriate for anything that moves among multiple processors, handlers, or sellers before reaching the customer.

    They are NOT appropriate when the customer is able to conduct the inspection or tracking for themselves. Not only do direct-market farms, dairies, and ranches allow customers to make a better determination of what's safe and acceptable than the government, they also provide clear tracking. If you get sick from a package of local meat, you know perfectly well where it came from and will be on the phone the next day with the local health department and the farm. End of problem.

    So my proposal would be to fit the nature and scope of regulations by the amount of travel and middlemen a food product passes through. If it's sold direct from the farm to customer, including dairy, produce, and meat butchered on-farm, that's between the customer and the producer. Period. The best safety net there is, exists in the knowledge and attention of customers buying direct. If it passes through one off-farm set of hands, like a local custom processor or a local grocery store, require some basic rules on how the food is handled. If it goes right into the distribution system, leaving the area or otherwise being mixed into the main food stream, use the highest level of regulations to make up for the lack of local oversight. To me, that's far more rational than legislating from the top down.

    There is already precedent for this in tax codes; I have to charge sales tax on products sold direct to final consumers, but do not charge tax on products sold to restaurants or grocery stores. Thus I already have to keep track of which products were sold into which stream, creating the basis for paying attention to how they're handled. Far more rational that assuming I have the same food safety problems as a peanut entering the factory stream.

    This is also preferable because it eliminates the problem of attempting to define food safety by farm size. There are some "small farms" that sell into the commodity stream and "large farms" who sell direct-market. Income, size, and diversity are not reliable predictors of food safety and product. Type of sale and distance to cusomer is far more reliable; let's base our regulations on that.

    To summarize:

    1) Establish numerical/scientific food safety standards, not hopeful procedures. Enforce the standards using simple, consumer and farmer friendly methods such as affordable/easy sample testing, but allow the farmer to achieve those standards in whatever way fits their operation.
    2) Develop food safety regulations based on the nature of the product and its travel; direct-marketed products, well-travelled products, and commodity products can be treated differently by law to account for the relative risk and level of existing consumer inspection. Allow customers to make free choices where appropriate, and target regulations to compensate for any lack of consumer ability to make an educated choice (i.e. non-local).

  2. Tyler says:

    Remember back in the old days of the internet where when you got an email with a subject in ALL CAPS!!!!! you automatically deleted it because it was spam/scam/virus?  It's still true, yet for some reason people decided to stop hitting delete.

  3. Parke says:

    That's so helpful in clarifying the shrill correspondence on this bill.  Thanks!

  4. Paul Simonds says:

    You state that, "Perhaps the worst of the lot is HR 1332, Rep. Costa’s Safe FEAST Act of 2009, which is backed by the Big Ag group Western Growers," and I would like to clarify.  Though Michael Doyle, of McClatchy Newspapers has reported twice (in '08 and again in February of this year) that Western Growers supports/backs Rep. Costa's Safe FEAST Act, we have not endorsed any federal food safety legislative proposals.  We have addressed this erroneous report with Doyle and, though he did not submit a retraction, he has made a commitment to actually call us at Western Growers before reporting we support or oppose specific bills.  I would hope that The Ethicurian would do the same.   

  5. Carol says:

    Thanks for the very informative post. As a small organic producer, I am very interested in all of the current farm and food safety related legislation. You have provided me with one of the best summaries I have read thus far of what is actually contained in each of the bills that you mentioned. I also appreciate the suggestions you made for taking actions that will positively influence upcoming legislation.

    I think that Eric's comment raises some valid and important aspects that should be considered in this analysis as well; that enforcement of measurable standards using simple and scientifically sound measurement techniques would be much more effective and efficient in controlling food safety than dictating adherence to complex processes and procedures, and that the types of food safety regulations implemented should be based on the actual level of risk to the end consumer. 

  6. Elanor says:

    Paul, thanks for participating in the discussion. I did know that WGA had not endorsed any of the food safety legislation and should have made that more clear in the post. Endorsing a bill publicly and pushing it on the Hill are very different things, however; I'd be interested to hear the political reasons behind WGA's decision to holding out on endorsing it, when on the Hill, the Costa bill is often discussed as "Western Growers' bill." WGA has made supportive statements about the bill in the past (see here, here and here, where WGA VP Cathleen Enright "says the Costa-Putnam legislation is good because it accounts for the food safety programs and rules growers already follow. 'That, in my opinion, makes it stand out from other active legislation currently being considered on the Hill,' Enright said") and I'll look forward to communicating with WGA about its positions as the food safety legislation moves forward. This won't be our last coverage of this, so I will give your office a call next time.

  7. Elanor says:

    Hi Eric, thanks for your thorough comment. I absolutely agree that different production and distribution models present very different levels of risk; we already know that nearly 99% of E. coli outbreaks in leafy greens have happened in processed bagged salad mixes, not the kind we'd buy at a farmers market, and if I did get sick eating something from the market, I'd know exactly where it came from (so traceability issues are completely different). Assuming that the risks are the same for all operations is the definition of a one-size-fits-all policy and the last thing we need.

    I'm inspired to see the work of groups that are developing scale-appropriate, feasible, common-sense food safety guidelines for small farms. If we can push those as alternatives and help them be adopted, then Big Ag can't use food safety arguments to undercut the average consumer's confidence in small/local/organic farmers, and food service directors can argue to their higher-ups that farm-to-school programs are safe and should be allowed (something we're seeing pushback against right now - this post has some background). Our challenge is to develop those alternatives and build backing for them with state and federal legislators before it's too late.

  8. Thank you for an intelligent discussion of this bill! I am referring all the nasty comment authors from my blog to you! I genuinely appreciate your dedication to getting the facts out there and providing additional viewpoints.

  9. Rob says:

    At a local cheese plant I have a friend,How often do you think the inspectors come? Once a year, and all they do is paper work. Most of  the food safety labs are unsanitary in food production facilities. And that if the lab is dirty, imagine production. And will all this nastiness, not many people get sick from food. I know of  nobody who dies from food. The current hysteria, is just that, hysteria, being built up by the democratic party and the environmental movement to restrict the freedom of human beings.  To sum up my point, anybody that eats processed food, gets what the deserve, bad food. All of this regulation is a tool for the wealthy to control the food supply and send it to third world countries, thus making the american populas a slave to the global econonmic engine.

    ps. The end agenda of all of the global warming, food safety, financial regulation, is to ignite support for a global government.  Look at the G 20, they don't even try to hide  it, Its a NEW WORLD ORDER.

    California, wake up, vote out these democrats and republicans and elect someone who tells the truth. That means the guy with the least amount of money.

  10. Thank you so much for writing this post!  I have been hoping to dig through all the compost about this and find out what the real effects will be.  You've cleared up a lot for me.  I'm sending my blog readers your way on this one.

  11. Leellen says:

    Just a few notes regarding your article.  You state that, "But it (HR 875) would require imported food to meet the same standards as domestically produced food. . ."

    I would like to draw your attention to the actual language of the Act, below:

    Sec.206
    (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).

    Subsection (c), among other things, ". . . shall promulgate regulations to establish science-based minimum standards for the safe production of food by food facilities."   
    -----------------------------------------------------------------------------------------------

    Your article states, ". . . but (HR 875) would not include . . . any farms that sell food in the same state as they produce it. (Federal bills, by definition, can only govern things that go into inter-state commerce.)

    The actual language of the Act below states,

    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.

    Does this presumption of jurisdiction mean that all commerce would be governed by this Act, including intrastate commerce?

    Regardless of intent, once these provisions become law, we must obey the law or will be subject to the fines and penalties set forth in the law. 

    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.
    (B) SEPARATE OFFENSE - Each act described in subparagraph (A) and each day during which the act continues shall be considered a separate offense.

    I would hope that anyone wishing to ascertain the facts regarding the Food Safety Modernization Act would read the Act and not rely on others for a summary.  I believe the hysteria surrounding this proposed legislation is justified given the current language of the Act.

    If anyone could clear up that jurisdiction question for me, it would be greatly appreciated.

    -----------------------------------------------------------------------------------------------


  12. Nicely done Elanor. I've posted the most recent update I've got on food safety laws too. Apparently the final version will look like HR 759 but with stronger traceability. That's on the House side, anyway. The Senate is going ahead with S.510.

  13. Elanor says:

    Hi Leellen,

    I appreciate your raising these questions because these sections are very confusing. But rest assured that it would not have helped advance the myth-busting cause for me to have written this post without having read the bill or consulted with folks working on this issue in DC, which is to say that I have read it. Here are answers I received from policy analysts affiliated with some of the above-mentioned small-farm-friendly groups:

    1) On "variances" that can be requested by foreign governments to the requirement that imported food meet the same standards as domestically-grown food: If a foreign country that exports food to the U.S. does not want to or cannot adopt exactly the same standards as the food safety administration would have here at home, they can request to be able to export food anyway, but they must first prove that the "food safety outcomes" of their regulations are the same as those in the U.S. In other words, Europe's regulations may not be exactly the same as ours, but if they can prove their food is exactly as safe (or more so), they can still export. But if China has no working food safety system or no enforced regulations, they wouldn't be able to export their food unless they adopted and enforced U.S. regulations or similar ones and could prove that have the same food safety outcomes.

    2) Regarding jurisdiction: I know it sounds like the bill would allow the federal government to regulate commerce that wasn't inter-state, but what this section actually does is to allow the federal government to enforce the law even if it has ceded the enforcement of federal food safety laws to a state. For example, in the Peanut Corp of America case, the federal government had ceded enforcement powers to the state of Georgia (and obviously it was doing a very poor job of enforcing them). Under HR 875, the federal government would be able to come in enforce the law even if it was technically Georgia's job. But let's be clear - this is only to enforce the law, and the law ONLY GOVERNS INTER-STATE COMMERCE. So farms that didn't sell out of state would not be regulated nor subject to federal enforcement under HR 875.

    3) Regarding the issue of the civil penalty: Yep, fine of up to a million dollars sounds scary. But that fine would be levied only if a food production facility participating in inter-state commerce violated the law. The groups that I mentioned in my post are working to make sure that the requirements for small farms doing inter-state commerce are reasonable, and it's important that we support that effort so that farms can meet those requirements.

    But I don't think we should forget that this fine is also a really good thing if it's used appropriately. If the PCAs of the future have a food safety plan that says they won't let the roof leak into open bins of peanut butter, but they do, they would be fined. I would have loved for PCA to have been fined a million dollars.

    I hope this helps assuage some of your fears.

  14. Eric Reuter says:

    Eleanor,

    Thank you for continuing the dialogue. You seem to have far more faith in the government than many of us who actually face its capriciousness. What scares many of us is not what the law technically says, but what it implicitly allows and makes possible.

    (1)when you say:

    "But that fine would be levied only if a food production facility participating in inter-state commerce violated the law."

    I say, PROVE IT. It's nice that there is a group "working" to make sure we don't get hit with that, but I have very little trust that the government will in fact be very, very careful to apply its new broadbased law in a perfectly responsible manner. It hasn't happened so far. I have no faith that once such laws are made, someone won't come along and use a midnight insertion to apply such penalties to small farms as well.

    (2) "So farms that didn’t sell out of state would not be regulated nor subject to federal enforcement under HR 875. "

    Well, that sounds great here in central Missouri, but not so much if you're in eastern Kansas selling to the KC markets. Or any other farm near a state border. Heaven forbid you're near DC and wanting to sell into that city's markets, or in northern PA selling in NYC, or northern IA selling in MN...you get my drift? What counts is location of sale, not location of farm, and as such a whole gob of small farms are going to get hit with this becuase their primary market is across a state line.

    (3) You seem to think this law will stop with the Feds. I don't believe it will. States and local governments can enact their own laws, and often base them on Federal example. Once the precedent is created for this sort of thing, even if the Feds only apply it at a large scale, what's to stop states or counties from taking the wording and applying it at their scale, even stricter? I can tell you right now that my local county health department is considered one of the strictest in the state, and has caused problems for our farmers markets in the past; the last thing we need is them getting a new Federal precedent for cracking down even harder on those scary small farms that don't shrink-wrap their food.

    (4) Missed in this whole debate is that some of us rational people have read the bills too, and still find them terrifying. My wife and I are well-educated (former) scientists, very much not part of the tinfoil-hat brigade, and we find the actual wording of these bills terrifying. Yes, that's right. They are so broad in scope, and so vague, as to open the door to all sorts of abuses. They are fundamentally flawed in their premise and in their execution.

    (5) I am going to copy a passage from my blog post dealing with this issue, because I think it is deeply relevant:

    It's not going to solve the problem. There is no doubt that our national food system has serious issues, but you don't solve them just through massive new regulations. You solve problems by looking for their ultimate source, not the immediate source. For example, if arson-set wildfires are becoming a problem, you may look into stronger laws regarding arson, but you don't assume the entire populace are arsonists and require registration of every lighter, matchbox, and flint in the region. Moreover, you look at why the wildfires are even possible, and whether existing policies and systems are making the arson events worse than they need to be. To come back to food, all of these food scares are ultimately sourced in the fact that our food system is incredibly concentrated in the hands of a few large companies, and the paths through which food travels are incredibly centralized. It's insane that one squalid peanut factory could contaminate most of the country. There's a fundamental problem there which is not going to be solved by regulation alone. And by passing laws which do not know the difference between a market farm selling direct to local customers and a factory supplying most of the country, you're going to stomp out a lot of the budding diversity in the food system which makes our food supply safer. Quick, when's the last time anyone heard anything about a local farm or market causing any form of illness or trouble on any meaningful scale? Yet we're going to get hit hardest by a deeply flawed approach that declares us all arsonists.

  15. Sharon S. says:

    When one writes a bill with such sweeping language that does not specifically exclude small farmers, roadside veggies stands, and home gardens it causes confusion and apprehension.

    So here is the question:

    Wouldn't this entire mess just be cleared up if simple language, you know the Keep It Simple Silly principle, was applied?

    How about:

    "No foodstuffs produced by American Citizens on their own property for their own consumption, sharing with neighbors or to supplement other hungry individuals during these Economically Challenging times shall be covered by HR 875."

    I mean - we expect results - let us tell the legislators what we want.

    Maybe that is too simple - but look at the situation we are in now by writing thousand page Bills.

  16. Leellen says:

    Thank you Eleanor for responding to my post.

    I hate to be nit-pickie but I feel I must when we are tossing around an issue as important as food and how it is regulated.  You have assured me that foreign countries ". . . must first prove that the 'food safety outcomes' of their regulations are the same as those in the U.S. "  However, I don't see this language contained in the Act nor do I see any cite to another existing law that would give us this assurance contained in the Act.  If this language or the cite is not contained in the Act then how can I be sure of the exact intent of the Act?   The way I read the Act (as it is written), is that the Variance sub-section could give a regulatory advantage to foreign countries to export food into our country while perhaps regulating into non-existence the very sources of  production that have historically provided the freshest, safest and most nutritious food.  I believe this has happened in other industry sectors as well which has resulted in the out-sourcing a vast majority of our manufacturing and other jobs.  I hate to sound like a 'protectionist,' but I just don't think it would be wise to pass laws that may result in the out-sourcing of the production of food.  Can you please cite the exact law that would require foreign countries to prove that the food safety outcomes of their regulations are the same as those in the US along with enforcement mechanisms?  I have learned to assume nothing.

  17. Elanor says:

    Hi Leellen,

    Thanks for responding and for your thoughts. I absolutely agree that we should not take food safety regulations lightly. Eric's comment brings this home as well: as food safety regulations move forward (most likely H.R. 759 and potentially the Costa bill), we must be constantly vigilant not just during the legislative process but during the rulemaking process if the bill passes. The rules are detailed instructions to the agency in charge that tell them how to carry out the law, and that's where the specifics that Eric discusses re: how the law will be applied are really hammered out. It's a public process - we can all submit comments on what we want to see in the rules. So there's a lot we can do now to oppose bad food safety legislation and offer better alternatives, but we need to follow that work through to the end, too.

    I totally understand your skepticism regarding the variance language. Two things: First, the variance only applies to subsection (c) of section 206, which deals with how food safety regulations will be promulgated. It doesn't apply to anything in Section 208, which is lays out how imports are regulated. That section of the bill is much stricter than anything that's currently on the books because it requires exports to meet standards "equal to" the U.S. standard - legally, a very strong requirement. (If you read Section 208 you'll note places where it says things like "in a manner to be determined by the administrator"-- that means to be decided during the rulemaking process. That's why it's critical that we stay involved in policymaking over the long term, because a lot of the specifics won't be decided until after the bill is passed. It's scary to think that a bill would pass without those specifics, but it's also heartening because rulemaking is based on public comments, so with good organizing (like we saw with the organic rule) we can really shape it.)

    H.R. 759, the bill that pretty much everyone I've spoken to assumes is the one that will move forward in the House, is much less good on the import issue and I think that's where your "protectionist" hackles should really be up. It would only require foreign countries to prove that their regulations are equivalent to, not equal to, the U.S. standard. I'm not a lawyer but people who are assure me that those words have very different legal meanings and that equivalent is weaker.

    My understanding is that many of the groups that have been working on improving HR 875 will be turning to organizing on HR 759, so there should be actions to take on it soon. Thanks for all of your hard work on it.

  18. Elanor says:

    Eric, thanks again for your comments. I certainly didn't mean to imply that rational people who've read the bill shouldn't have any cause for concern. HR 875 is far from perfect and if it moved forward, a lot would depend on rulemaking. I think what I'm trying to suggest is 1) that food safety regulations are coming down the pike whether we like it or not, between attempts to make a national Leafy Greens Marketing Agreement, mandate the Good Agricultural Practices, or pass one of the food safety bills that's been introduced in Congress. The chance that local/small scale/organic/direct marketed food is going to be exempt from that discussion is highly unlikely and there are reasons why we should take a seat at the table - namely, because if we do then we can influence the process, and if we don't we risk either having a one-size-fits-all policy foisted upon us, or having Big Ag use food safety competitively against us with consumers. And 2) there are good models of scale-appropriate, common-sense food safety guidelines for small farms being developed by the groups I mentioned, by Cornell's GAPs program and others, and those can serve as the basis for a proactive, alternative proposal coming from our side, if we choose to engage in the policymaking process.

    I'm really scared by what I see in HR 759, the Costa bill, and Senate bill 510.  A lot of the info circulated on HR 875 may have been incorrect but it did tap into very legitimate concerns about how food production will be regulated in the future. I hope that the energy around HR 875 can be funneled into a campaign to stop or seriously reform the bills that move forward and come up with a workable alternative that's attentive to the issues you raise - that different production/distribution systems represent really different levels and kinds of risks and we need regulations that reflect that. But I just don't think "no regulation" is an option anymore.

  19. reina says:

    Is this discussion perhaps deflecting from a much more serious and much weightier problem: The toxic  junk food that infiltrates what seems to be the furthest reaches of the country. I was shocked during my last visit to the US to see the vast and relentless foremarch of fast food outlets. The consequences of the production and consumption of this food are far broader and more dire than any isolated food scandal could ever be.

  20. Wylie Harris says:

    Elanor, you write in your original post, "Federal bills, by definition, can only govern things that go into inter-state commerce."  But do you not read Section 406 of HR 875 as giving its FSA a pass on that requirement? 

    ("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.")

    Also, you write that HR 875 "...doesn’t regulate livestock, since the FDA has no jurisdiction over livestock (that’s USDA territory), so it wouldn’t impose mandatory National Animal ID."

    But Section 210 does mandate a "national traceability system that enables the Administrator to retrieve the history, use, and location of an article of food through all stages of its production, processing, and distribution," and Section 3.14 includes ranches and CAFOs (i.e., livestock operations) in the definition of "food production establishments."  Taken together, I'd read that as constituting legal authority to establish a national animal identification system, wouldn't you?

    I'd appreciate your thoughts.  I have been trying to figure out whether/how I'm interpreting these passages incorrectly, since so many recent columns busting myths about HR 875 do mention that it can't touch intra-state commerce and won't institute (at least de facto) NAIS.

    Thanks,
    Wylie

  21. Elanor says:

    Hi Wylie, thanks for asking these questions. The inter-state commerce question was asked further up in the comments and here's the answer I provided:

    What this section (406) actually does is to allow the federal government to enforce the law even if it has previously ceded the enforcement of federal food safety laws to a state. For example, in the Peanut Corp of America case, the federal government had ceded enforcement powers to the state of Georgia (and obviously Georgia was doing a very poor job of enforcing them). Under HR 875, the federal government would be able to enforce the law even if these powers had been ceded. But let’s be clear - this is only to enforce the law, and the law only governs inter-state commerce.

    Sections 210 and 3.14 are terribly confusing and it's no secret that DeLauro has been supportive of NAIS in other arenas, so thanks for giving me the opportunity to clarify. The key language here is in Section 2 (b)(2), where it states that the purpose of this act is "to transfer to the Food Safety Administration the food safety, labeling, inspection, and enforcement functions that... are performed by various components of the Food and Drug Administration and the National Oceanic and Atmospheric Administration." It explicitly does not mention the USDA, which means that when we talk about the food that would be regulated by this act, we're only talking about things that the FDA already has jurisdiction over under the Food, Drug and Cosmetic Act. That means that despite what the rest of the bill might seem to say, it can't regulate most livestock or any poultry - anything that's under the purview of the USDA.

    That means that when the bill refers to CAFOs and ranches, it's only talking about ones that raise animals under FDA purview - bison, emu, deer, stuff like that. (Don't ask me why the FDA gets emu when USDA gets everything else... no idea.) No farms or ranches that raise cattle, hogs, lamb, poultry or most other animals could be regulated under this bill - hence, no NAIS.

    The traceability system language in 210 is vague but what it asks for could be achieved by strengthening existing laws - the 2002 Bioterrorism Act, for example, already requires food production facilities to keep records that show where they bought food from and to whom they sold it (more info in this post). The issue with the BTA is that it prevents the FDA from accessing these records unless there's a major health emergency, so it's not terribly useful. But you could envision a scenario in which the requirement of the bill was met by fixing that loophole in the BTA. (Or it could be fixed in much worse ways, definitely. But the important point is that it doesn't mandate a specific type of fix or a specific technology.)

    In contrast, H.R. 759, the bill that will actually move forward in the House, contains similar language on traceability but requires the use of electronic tracking systems. According to Jill's comment above, word on the Hill is that the final bill will look like H.R. 759 but with even stronger traceability requirements - I shudder to think. A good reason why we should all get ready to mobilize when that bill starts moving.

    OK - done wonking out now! I hope it helps. Thanks for joining the discussion.
    Elanor

  22. Joe says:

    Make no mistake - if anything was learned by intelligent manipulators of the human condition by the US experience over the past 8 years, it is that fear can be used to hijack even the most intelligent and educated population into accepting actions that are against their best interests.  This is the same lesson that the 3rd Reich put to such effective use against Weimer Germany in the early 30's.  In the next few years, we will see that fear be out to use again here in the U.S.  Again, it will be ongoing fear of terrorism, only this time the terrorists will be microbes.  The end result, without effective citizen pushback, will be a food system which is entirely vertically integrated and amalgamated. 

    It is ironic that the symptoms and ills created by the current system of highly centralized and industrialized food production is spawning a host of regulatory activity which will inexorably force the further consolidation of that system, and the elimination of the small and local.  This is simply because the small and local will not have adequate financial reserves to support the required documentation and paperwork burden.  I should know, as owner of a small USDA-inspected slaughterhouse and meat processing plant.  The big guys don't like it, but in a game of Last Man Standing, which is what this new round of regulation will amount to, they expect to be there in some form or the other.  In order for the system to provide for food safety AND quality, there simply MUST be a recognition of scale-appropriate regulation. 

    And there must be an incorporation of full system thinking into the process.  If you regulate a highly complex system like agriculture by giving supremacy to a single variable - food safety - you are guaranteed to fail.  Look at the extreme disruption caused by peanut butter in the past 6 months - economic disruption, confusion, transportation due to recalls, waste in packaging/production/reworked product/etc., lost jobs, farmer confusion as the planting season arrives, etc.   Even if there was a recall from my plant, none of that would occur.  I know all the links of the system!  There must a recognition that there is some positive value to that intimacy that out weighs, or weighs equally, to the food safety concerns that are so easily manipulated by fear mongers and politicians for gain.

  23. Lisa says:

    Elanor:

    I appreciate all the work you have obviously done on these pieces of legislation.  Like some others, I also do not trust the government will limit itself in the exercise of the powers I see granted in these bills. 

    I agree small farmers should be at the table as these things are discussed but I disagree that its inevitable that this regulation be passed.  At least it should not be passed without a good fight to try and preserve our freedoms and way of life.

    And I have to mention something that really worries me regarding the jurisdiction issue.  Initially I was mollified by the interstate commerce clause.  However, I then learned about the 1942 Supreme Court ruling on Wickard vs. Filburn in which it seems that the court is extending Federal Regulation to intrastate commerce and even home grown consumption simply because the act of growing a crop (in this case wheat) has an effect on interstate commerce.  So even if your wheat does not enter interstate commerce it "affects" it and thus is subject to federal jurisdiction.  I am having a lawyer check this out - but sure would be an example of how the Feds can make the case to do anything they want.

  24. Paul Schilke says:

    It sounds like this bill might ignore an important aspect of geography, which is that things close together are more similiar than things farther apart.  A small grower living in SW michigan is more likely to market produce at farm market in Indiana than in northern Michigan.  And a farmer in Maryland might have a target market in Washington DC.  These folks would suddenly be subject to regulations which might not apply to other growers.

  25. Sharon Sabo says:

    While many of these bills seemed to have stalled, we now have H.R. 2749 - a concerning bill which requires more legislative intrusion. The following is the amended version being considered at this point in time (pdf) Removed the exclusion of Farms by adding this (i.e. if you are exempt only if you are already regulated): Quote 19(c) FARMS.:

    A farm is exempt from the requirements of this Act to the extent such farm raises animals from which food is derived that is regulated under the Federal Meat Inspection Act, the Poultry Products Inspection Act, or the Egg Products Inspection Act.

    We are not regulated under any of those acts, therefore we have this to look forward to?

    Quote 8(1) IN GENERAL. The registration fee under subsection (a) shall be (A) for fiscal year 2010, $500; and (for fiscal year 2011 and each subsequent fiscal year, the fee for fiscal year 2010 as adjusted under subsection (c). Expands Quarantine. Current practice (although it seems that there is no guidelines being followed) - does not grant this broad of authority.

    (i) QUARANTINE OF GEOGRAPHIC LOCATION.
    (1) AUTHORITY TO QUARANTINE. If the Secretary determines that there is credible evidence or information that an article of food presents an imminent threat of serious adverse health consequences or death to humans or animals, the Secretary may quarantine any geographic area within the United States where the Secretary reasonably believes such food is located or from which such food originated. The authority to quarantine includes prohibiting or restricting the movement of food or of any vehicle being used or that has been used to transport or hold such food within the geographic area. Any quarantine under this paragraph shall be no greater 1 than is appropriate, as determined by the Secretary, 2 to protect the public health.

    I guess the question is, if I purchased a possible contaminated tomato/peanut/whatever and drove home - am I subject to this? It seems as if the Legislative body has jumped/rushed into Regulating without Responsibility. We, as small beekeepers and a very small dairy, will be regulated out of being able to keep our own food supply. Sad. Sharon S.