Thursday, March 12, 2009

HR 875- Food Safety Modernization Act of 2009

If you thought my post yesterday was long, boring, and over the top you may want to stop reading now. Fair Warning!

HR 875- Food Safety Modernization Act of 2009

I received an email from MetroFarm this week that said:

House Bill 875, which is sponsored by Representative Rosa DeLauro (D-CT), seeks to reduce or eliminate the danger of distance by establishing a new federal Food Safety Administration (FSA) that would superintend and regulate all food production facilities, from the smallest farms to the biggest processors. In other words, HB 875 would give the federal government dictatorial authority over the entire food chain of the USA.HB 875 and its Food Safety Administration (FSA)
• Binds all State and County Departments of Agriculture to federal authority
• Criminalizes alternative farming methods, such as “organic.”
Superintends everyone who grows food, whether they sell it or not.
• Superintends the production of meat of any kind.
• Allows the FSA, or its agents, physical access to all farms.
• Allows the FSA, or its agents, to copy all farm documents.
• Forces farmers who sell direct to consumers to make their customer lists available to FSA, or its agents.
• Grants FSA, or its agents, authority to punish rule-breakers with fines of up to $1 million per day.
• Allows FSA to hire industry leaders to decide how program would be administered.

I have been reading a lot of people talking about this Bill and one of the comments I have heard is that lots of weird and extreme bills float around congress that does not mean they will pass. That is true, once people KNOW they are there and what they say and make a fuss to their congress people they are unlikely to pass. Unnoticed and unheeded, however, they can slip through and we end up with bills like Consumer Product Safety Improvement Act of 2008 which have "unintended" consequences which might not be so unintended after all.

So I actually read HB 875 it says the following in it's 30 pages.

"Sec2.a.2 - Congress finds that lapses in the protection of the food supply... are damaging to consumers and the food industry, and place a burden on interstate commerce and international trade. " I really did not know my little CSA was that powerful!

"Sec2.a.4 - Congress finds that lapses in the protection of the food supply... the safety and security of the food supply require a systemwidde approach to preventing food born illness... and intensive, effective and efficient management of the Nation's food safety program. "Basically what the Bill aims to do (at least my understanding I am an farmer not a lawyer) is to create a new Agency "the Food Safety Amininistration" and give it control of regulating and policing our nations food supply.

The purpose of the act being, among others, to "regulate food safety and labeling to strengthen the protection of public health."

My reading of the bill seems to lead me to believe that it will make the "Home Produced" items allowed under Ohio law illegal. So say goodbye to breads, cookies, jams, jellies, and honey at your farmers market. In fact, you may have to say goodbye to the farmer's market itself. But I really want to focus this post on its impact on FARMS growing veggies so I will do that.

It seems to me that our farm will be regulated under the bill (sec 3.14) as a Food Production Facility "any farm, ranch, orchard, vineyard, aquaculture facility, or confined animal feeding operation." In case you missed that let me restate. FARMS AND ORCHARDS are regulated the same as CAFOs! Nice.

Sec 206.a.1 gives the "Administrator" of the new FSA the right to visit and inspect food production facilities, set "good practice" standards, require records of food safety reports, conduct monitoring of plants, and collect information relevant to public health. Some say this would include a list of our customers and members.

They have the right to create regulations that (206.c.1) "consider all relevant hazards,including those occurring naturally." Read that as NO compost. And include regulations on (206.c.3) "growing, harvesting, sorting, and storage operations, minimum standards related to fertilizer use, nutrients, hygiene, packing, temperature controls, animal encroachments, and water." Of course what these regulations will be are not yet developed. but you can put money on it that our procedure of pulling them out of the ground, washing the most dirty ones with a garden hose, and sorting them on a picnic table will not meet the requirements which will be designed for a full blown sorting house. Joe Salatin has written a lot about how similar regulations have effected small scale livestock producers. Will we, for instance, be required to have a bathroom in the "sorting house" and a separate one for the FSA inspector.

Failure to abide by any of the regulations could result in a fine of up to $1,000,000! (405.a.1.A) for each "act" that is not in compliance...

It is hard to say how this bill if passed would effect us. But many are suggesting that it would put most of the countries small farms out of business. I dare say it would.

There are three other bills also in congress right now... H.R. 814, S.R. 425 and H.B. 759 all of which will impact our food choices. I hope to discuss each of them in turn in the coming days...

(Sorry, I guess my farm blog is turning a bit political...)


clink said...

Yours and mine both -- you say it with nicer language. I swear too much. Here are my takes on the subject.


Anonymous said...

let them eat cake. they sure as hell don't deserve any real food.

Anonymous said...

When politics threaten your farm's existence, it becomes a farming topic.

And thank you for your analysis, I just now found out about this and haven't had time to read the bill itself, it is nice to find specific text quoted and commented on.

This is potentially far scarier than the current economic drama, to me at least. Hopefully sanity will prevail, I can't see this one size fits all approach going over very well just now, with that backyard garden looking better than it has in decades, but it is still spooky that it even made it as far as it has.

JoAnn said...

I feel the same way and also blogged about it. I think I was so passionate, I wrote it and re-wrote it until it made some sense! I should have just linked to yours but I found it afterwards.

Alex Tiller said...

Here is an online petition you can sign to help stop HR 875:

Spread the word!

Anonymous said...

I think food saftey is very important. But this sounds a little extreme. Provide lists of who you are selling your food to???? and if this legislation will prohibit me from gardening in my back yard. Or you for growing organic foods on your farm I am against it. It may not be thier intention to do these things so we really should let them know what we think!

Thanks for the link

Anonymous said...

There is obfuscating language in this bill designed to confuse and redirect your attention to thinking by implication rather than specification. This is cleverly illustrated using the words "include(s)", "exclude(s)" and custom definitions. So let's take a look at an example.

(a) In General- Any food establishment or foreign food establishment engaged in manufacturing, processing, packing, or holding food for consumption in the United States shall register annually with the Administrator.

Notice that annual registration is limited to a Food Establishment or foreign food establishment. One cannot imply that this extends beyond these two entities as defined in the definitions section and only those that engage in manufacturing, processing, packing or holding food for consumption.

Before I get to what is a Food Establishment or foreign food establishment, let me give you an example of the use of include and typical efforts employed to muddy the waters.

To start with we must recognize that if a word is meant to be understood as having its common meaning, there is no need to define it at all. It is axiomatic that if a word is explicitly defined, it has a restricted meaning. If language such as the term "Fruit" is used and defined as "includes, apples, oranges, and pears", it can only be understood as restricting the definition to those things listed, or no definition would be required; the word "fruit" would be understood to include apples, oranges and pears, as well as all other fruits. If the word "common" is left out of the definition, then the things used in the definition are what establish the class to which belong, and as the word is being deliberately defined, the common meaning of the word must be excluded.

Under the definitions section:


(A) IN GENERAL- The term ‘food establishment’ means a slaughterhouse (except those regulated under the Federal Meat Inspection Act or the Poultry Products Inspection Act), factory, warehouse, or facility owned or operated by a person located in any State that processes food or a facility that holds, stores, or transports food or food ingredients.

(B) EXCLUSIONS- For the purposes of registration, the term ‘food establishment’ does not include a food production facility as defined in paragraph (14), restaurant, other retail food establishment, nonprofit food establishment in which food is prepared for or served directly to the consumer, or fishing vessel (other than a fishing vessel engaged in processing, as that term is defined in section 123.3 of title 21, Code of Federal Regulations).

(14) FOOD PRODUCTION FACILITY- The term ‘food production facility’ means any farm, ranch, orchard, vineyard, aquaculture facility, or confined animal-feeding operation.

So a Food Establishment is not a farm, ranch, orchard, vineyard, aquaculture facility, confined animal-feeding operation. This is a custom definition, is specific and no other implications can be drawn as meaning something else. Note that farm, ranch .... since not custom defined, have a common definition without exclusion or inclusion. I do not have cites to their common definition.

In addition to the above, a Food Establishment is not a resturant, retail food establishment, nonprofit food establishment or fishing vessel (as limited in definition to section 123.3 of title 21 of CFR). Again, resturant, retail food establishment .... have a common definition without exclusion or inclusion.

There is a specific class of actions as custom defined by 'Process', all of them being Commercial.

(19) PROCESS- The term ‘process’ or ‘processing’ means the commercial slaughter, packing, preparation, or manufacture of food.

Note this means Commercial slaughter, commercial packing, commercial preparation, commercial manufacture of food.

There is another specific class of actions not defined but listed as holds, stores, or transports. Common definitions apply here.

Also, there is a geographical constraint that limits this to any State. What is a State?

(20) STATE- The term ‘State’ means--

(A) a State;

(B) the District of Columbia;

(C) the Commonwealth of Puerto Rico; and

(D) any other territory or possession of the United States.

This is important since we move to the only other entity required to register annually, a foreign food establishment.

(16) FOREIGN FOOD ESTABLISHMENT- The term ‘foreign food establishment’ means any category 1 through 5 food establishment or food production facility located outside the United States that processes or produces food or food ingredients for consumption in the United States.

Look at what has happened here. The Food Establishment custom definition does not apply since the location is specific and "located outside the United States" and does not fall within the confines of a 'State'. Therefore the exclusions of "(14) Food Production Facility" do not apply.

This makes this particular entity far more reaching than the restrictive entity of a "Food Establishment" located in a 'State'.

What does all this mean?

If you do not fall under the custom definition of a "Food Establishment" you are not required to register. If you are not required to register then there is no categorization of you as a Category 1 thru 5, you can't be assigned a registration number, there is no inspection, monitoring, or reporting requirements. This is however not a statement that you are not obligated to practice good health standards.

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