posted March 15, 2009 12:23 AM         

Is this the CHANGE we were hoping for?

United States Representative Rosa DeLauro (D-CT) has proposed
legislation, H.R. 875, which would literally prohibit Americans from
raising food for themselves, their families, or even for their
animals, without the uber alles national government's permission!
Extreme statement? NOT! H.R. 875 makes Americans serfs on their own
land! Read on; this one bill could wipe the United States, as a free
nation, from the face of the Earth! We urgently need your help to kill
this extremely dangerous bill!

H.R. 875, the so-called Food Safety Modernization Act of 2009 (FSMA)
sounds innocent enough at first blush, with language purporting to
"protect the public health by preventing food-borne illness, ensuring
the safety of food, improving research on contaminants leading to
food-borne illness, and improving security of food from intentional
contamination, and for other purposes. " In reality, the FSMA is an
extensive and all-controlling abomination that must be stopped!

The FSMA mandates registration of every "food production facility, "
which the bill defines as "any farm, ranch, orchard, vineyard,
aquaculture facility, or confined animal-feeding operation; " and every
"food establishment, " which the bill defines as "a slaughterhouse...,
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. "

H.R. 875 makes NAIS look tame. This bill will not just sweep up
commercial food operations. The fine print of the FSMA will subject
hobby gardeners, home canners, anyone with a few chickens, or anyone
who "holds, stores, or transports food " - including mushrooms or wild
berries gathered in the wild - to registration, extensive management,
and inspection by a huge new bureaucracy, the Food Safety
Administration (FSA)- even if the food items will only be consumed
personally. And registration must be via "an electronic portal, " which
will be costly and difficult for those without computers.

H.R. 875 exponentially advances the "Foodborne Disease Surveillance
Systems " required of member states of the World Health Organization
(WHO), which includes the United States. "Food establishments" will be
required to adopt preventive process controls, including implementing
recordkeeping and labeling of all food and food ingredients to
facilitate their identification and traceability, including
instructions for handling and preparation for consumption. This might
sound rather reasonable... until you remember the definition of a
"food establishment" above.

Immensely telling of how seriously this bill does not take "food
safety, " though, is Section 204(2)(C), which promises the
Administrator will identify the "5 most significant (food)
contaminants ", and "not later than 3 years after a contaminant is so
identified, the Administrator shall promulgate a performance
standard... " Gee whiz, what's the rush?

Perhaps the Administrator's promulgation timetable has little to do
with acting quickly and decisively to protect U.S. citizens (or even
"all people in the United States " as required by the FSMA) and much,
much more to do with the World Health Organization's stated desire in
its 2004 report entitled "FOODBORNE DISEASE MONITORING AND
SURVEILLANCE SYSTEMS " that "the objectives and strategies (of food
borne disease surveillance systems) established by each country should
be acceptable to all member countries
(www.fao.org/docrep/meeting/006/j2381e.htm), " which doubtless would
take time.

Perhaps it is because "studies linking pathogens in food to the
disease in humans would help quantify the risk of food borne
diseases. " In other words, no entity, not the Centers for Disease
Control and Prevention (CDC), and not the WHO, can prove a significant
problem exists in the United States.

The FSMA will not even quickly implement protections for Americans
from contaminated foreign foodstuffs. The bill states, "(n)ot later
than 2 years after the date of the enactment of this Act " imported
food products shall be certified safe "by the accredited foreign
government (think CHINA!) or by an accredited certifying agent... "
Again, what's the rush?

Maddeningly, the FSMA expects Congress to again approve a far-reaching
bill without knowing the details. In this case, Congress will find out
much later:

what federal resources would be dedicated to foodborne illness and
food safety research;

what transfer of agencies, personnel, assets, obligations, and
consolidation, reorganization, or streamlining of agencies will be
involved; and

the details of regulations the new Food Czar (Administrator of the
FSA) will promulgate after enactment of the Act.

Among the statutory foundations the FSMA claims for guidance and
authority is the National Animal Identification System, which HAS
NEVER BEEN ENACTED INTO LAW BY CONGRESS!

But beyond the mandated violations of our civil liberties in the FSMA
- registration, traceability, inspections, seizures, etc. (all without
court orders or search warrants), - the truly chilling language lays
out civil and criminal penalties of up to $1 million per day, per
infraction, and imprisonment of five or ten years, or both, depending
how serious the violation(s).

Additionally, "(a)n order assessing a civil penalty against a
person... shall be a final order unless the person-- (A) not later
than 30 days after the effective date of the order, files a petition
for judicial review of the order in the United States court of
appeals... (and) (t)he findings of the Administrator relating to the
order shall be set aside only if found to be unsupported by
substantial evidence on the record as a whole. " The FSMA is so
over-the-top in its overreach that the bill's language states, "(t)he
validity and appropriateness of the order of the Administrator
assessing the civil penalty shall not be subject to judicial review. "

And if you're by now thinking this is about as outrageous as this bill
can be, you'd be very wrong. Section 406 clearly states, "(i)n any
action to enforce the requirements of the food safety law, the
connection with interstate commerce required for jurisdiction SHALL BE
PRESUMED TO EXIST. "

Now, for those who noticed, and questioned, why "foodborne " is spelled
as if we reside "on the Continent, " and why the United States
government is attempting to implement a "solution " wanting for a
"problem " - you guessed it - "Foodborne Disease Monitoring and
Surveillance Systems " are a priority with the World Health
Organization, to which our national government has committed US
through its membership.

The 53rd World Health Assembly (a branch of the WHO) in the year 2000
adopted a resolution to recognize food safety as an essential public
health function and called for the development of a Global Strategy
for reduction of the burden of food borne diseases. The resolution
(WHA 53.15) encouraged member states "to implement and keep national,
and when appropriate, regional mechanisms for food borne diseases
surveillance. " All this, despite the WHO admission in a 2004 report
(www.fao.org/docrep/meeting/006/j2381e.htm) that "(t)he true dimension
of the burden of food borne diseases is still unknown... "

The FSMA is a "government solution " in seek of a problem! In the year
1900 at least some cases in two of the ten leading causes of death
might have been food related (diarrhea/enteritis, liver disease). But
the twin leading causes were pneumonia, followed closely by
tuberculosis..

In 2002, WHO listed the leading cause of death in the U.S.
(www.who.int/whosis/mort/profiles/mort_amro_usa_unitedstatesofamerica.pdf)
as ischaemic heart disease, killing ~ 514,000 people. The second
greatest cause was cerebrovascular disease (stroke), killing ~
163,000. None of the top ten causes bore any relation to foodborne
illness.

In apparent support of all this brazen, strong-arm command and control
attempt, the CDC reports its estimate that every year in the United
States sees approximately 76 million cases of foodborne illness
(www.pbs.org/wgbh/pages/frontline/shows/meat/safe/foodborne.html),
with 325,000 hospitalizations and 5,000 deaths (which equates to one
death out of every 15,200 who become ill). Admittedly those 5,000
deaths are significant, and devastating to all those involved, but
this figure must be put in perspective. We must consider the larger
picture long before we even consider such draconian measures as those
mandated by the FSMA.

Perhaps too little is known of reports that "iatrogenic events " -
medical errors - kill almost 800,000 in the U.S. each year
(www.whale.to/a/null9.html#Underreporting_of_Iatrogenic_Events_).
That's the equivalent of six jumbo jets falling out the sky each and
every day. Those who track these events believe as few as 5% and no
more than 20% of these deaths are ever reported.

Clearly deaths resulting from foodborne disease are exponentially
lower than these other major causes, which begs an obvious question:
If Congress is so very concerned about our health, why haven't they
felt inclined to tackle the much more significant incidence of
iatrogenic deaths in this nation? Hmmm?

One need only consider the "Healthy People 2010 " goals
(www..healthypeople.gov/About/goals.htm) to understand the true
(A)genda behind this initiative.

ACTION TO TAKE

The FSMA is an extremely dangerous bill. We recommend a multi-prong
attack, as the more salvos we throw at the FSMA the better chance we
have of killing this abomination.

Contact House Speaker Nancy Pelosi, via phone: (202) 225-0100, or
email: http://speaker.house.gov/contact/.

Contact the House Majority Leader Steny Hoyer, via phone:
202.225..3130, or email: www.majorityleader.gov/email_and_rss/email_the_leader/.

Contact the House Republican Leader John Boehner, via phone: (202)
225-4000, fax: (202) 225-5117, or email: http://republicanleader.house.gov/Contact/.

On March 11th Congress will hold its first hearing in many years on
the National Animal Identification System (NAIS), conducted by the
Livestock, Dairy and Poultry Subcommittee. It is vitally important you
contact all the committees below.

Contact the Livestock, Dairy and Poultry Subcommittee members listed
below. If one of the Subcommittee members is from your state, call
that member.

Mike Rogers (R-AL)
Phone: 202-225-3261
Fax: 202-226-8485

Dennis Cardoza (D-CA)
Phone: 202-225-6131
Fax: 202-225-0819

Jim Costa (D-CA)
Phone: 202-225-3341
Fax: 202-225-9308

Joe Baca (D-CA)
Phone: 202-225-6161
Fax: 202-225-8671

Betsy Markey (D-CO)
Phone: 202-225-4676
Fax: 202-225-5870

David Scott (Chair), (D-GA)
Phone: 202-225-2939
Fax: 202-225-4628

Leonard Boswell (D-IA)
Phone: 202-225-3806
Fax: 202-225-5608

Steve King (R-IA)
Phone: 202-225-4426
Fax: 202-225-3193

Walt Minnick (D-ID)
Phone: 202-225-6611
Fax: 202-225-3029

Frank Kratovil, Jr. (D-MD)
Phone: 202-225-5311
Fax: 202-225-0254

Adrian Smith (R-NE)
Phone: 202-225-6435
Fax: 202-225-0207

Tim Holden (D-PA)
Phone: 202-225-5546
Fax: 202-226-0996

David P. Roe (R-TN)
Phone: 202-225-6356
Fax: 202-225-5714

K. Michael Conaway (R-TX)
Phone: 202-225-3605 or 866-882-381
Fax: 202-225-1783

Randy Neugebauer, Ranking Minority Member (R-TX)
Phone: 202-225-4005 or 888-763-1611
Fax: 202-225-9615

Bob Goodlatte (R-VA)
Phone: 202-225-5431
Fax: 202-225-9681

Steve Kagen (D-WI)
Phone: 202-225-5665
Fax: 202-225-5729

Contact your own Representative and ask him or her to approach the
Subcommittee member to urge them to oppose NAIS.

If you're not sure who represents you, click here: www.congress.org/.

We strongly recommend that you make at least your initial contact by telephone.

Additionally, H.R. 875 has been assigned to the committees on Energy
and Commerce, and Agriculture.

Contact members of the Energy and Commerce Committee via phone: (202)
225-2927, or email: http://energycommerce.house.gov/index.php?option=com_content&task=view&id=1313&Itemid= 1.

posted March 15, 2009 01:44 PM         

HR 875 - The Federal Take-Over of Food Regulation
Edited 3/13/09

On February 4, 2009 Representative Rosa DeLauro (D-CT) introduced the Food Safety Modernization Act of 2009 (HR 875), a bill that would establish the Food Safety Administration (FSA) within the Department of Health and Human Services (DHHS). HR 875 represents a tremendous expansion of federal power, particularly the power to regulate intrastate commerce. While the proposed legislation tries to address the many problems of the industrial food system, the impact on small farms if the bill becomes law would be substantial and not for the better. HR 875 is a major threat to sustainable farming and the local food movement. [Click here for the text: PDF or MS Word or HTML]

The bill would transfer the functions and resources of several divisions within the Food and Drug Administration (FDA), such as the Center for Food Safety and Applied Nutrition (CFSAN) and the Center for Veterinary Medicine into FSA. The National Marine Fisheries Service in the Department of Commerce would be transferred over to FSA as well. [Section 102(b)]

Under HR 875 the FSA, among other responsibilities, is charged to regulate food safety and labeling [Section 2(1)(A)] and to “lead an integrated, system-wide approach to food safety and to make more effective and efficient use of resources to prevent foodborne illness” [Section 2(1)(C)]. Other purposes of the Act are to modernize and strengthen federal food safety law and “to establish that food establishments have responsibility to ensure that all stages of production, processing, and distribution of their products or products under their control satisfy the requirements” of federal food safety law[Section 2(3),(4)]. Under the bill, farms are designated as ‘food production facilities’ [Section 3(14)]. Farms are also subject to all laws in the Act applying to food establishments except that they do not have to register with the FSA as most other food establishments are required to do [Section 3(13)(b)]. A “food establishment”, according to the bill, 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” [Section 3(13)(A)].

HR 875 charges the administrator of FSA with developing a national food safety program to protect the public health [Section 201(a)(1)]. In carrying out the program, the administrator must “adopt and implement a national system for regular unannounced inspection of food establishments” [Section 201(c)(2)]. With respect to ‘food production facilities’ (farms), FSA is given the power by the bill to visit and inspect them to determine that they are operating in compliance with the food safety law [Section 206(a)(1)]–under HR 875 ‘food safety law’ refers to provisions of the Federal Food, Drug and Cosmetics Act, provisions of the Public Health Services Act, and the Food Safety Modernization Act of 2009 itself [Section 3(15)]. In addition, the agency would have the power to have access to and copy all records maintained by farms in order to be able to (1) determine whether the food is contaminated, adulterated or otherwise not in compliance with the food safety law or (2) track the food in commerce [Sections 206(b)]. Under Section 210 of the bill which is entitled “Traceback Requirements”, FSA is charged with establishing a national traceability system that requires farmers to keep records that enable FSA to track “the history, use, and location of an item of food” [Section 210(c)]. Farmers selling direct to consumers would have to make their customer list available to federal inspectors. The bill orders FSA to be consistent with existing statutes and regulations that “require recordkeeping or labeling for identifying the origin or history of food or food animals.” Interestingly, the National Animal Identification System (NAIS) is mentioned as some of the existing laws that the administrator should review even though there actually is no federal statute or regulation in place that mandates any part of NAIS [Section 210(d)(1)]. HR 875 cites NAIS as being authorized by the Animal Health Protection Act (AHPA) even though there is no mention of it anywhere in the AHPA [Section 210(d)(2)].

The food traceability records are not the only written documentation farmers are to supply FSA under the terms of the bill. HR 875 mandates that FSA issue regulations that “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” [Section 206(c)(2)]. If such a regulation does in fact call for a HACCP plan (Hazard Analysis Critical Control Point, ’Hass-sepp’), farmers will be required to do the following in developing a plan for their farming operation:

Conduct a hazard analysis (e.g., list the pathogens that could be present in the farming operation);
Determine the critical control points (e.g., identify points in the operation where pathogens would most likely be present or could be introduced);
Establish critical limits;
Establish monitoring procedures;
Establish corrective actions;
Establish verification procedures; and
Establish record-keeping and documentation procedures.
FSA’s rulemaking authority includes extensive power to regulate farming practices as well. HR 875 requires the agency to issue regulations that establish ”minimum standards related to fertilizer use, nutrients, hygiene, packaging, temperature controls, animal encroachment, and water” with respect to “growing, harvesting, sorting, and storage operations” [Section 206(c)(3)]; and, “with respect to animals raised for food”, the regulations are to establish “minimum standards related to the animal’s health, feed, and environment which bear on the safety of food for human consumption” [Section 206(c)(4)].

All the requirements outlined above apply even if the farm is engaged in only intrastate commerce. Under the Federal Food, Drug and Cosmetics Act (FFDCA), FDA could only inspect farms that produce food for introduction into interstate commerce [21 USC 374]. Under HR 875, no nexus to interstate commerce is needed for a farm to be within FSA’s jurisdiction.

The federal government’s expanded power to regulate commerce under the bill would place the legality of the sale or other distribution of raw milk in intrastate commerce in jeopardy. FDA has long wanted a complete ban on the sale of raw milk. The agency’s mantra is that raw milk should not be consumed by anyone at any time for any reason. The agency does not consider this subject to be debatable and refuses to send representatives to any conference concerning the safety of raw milk when they know anyone with an opposing viewpoint will be present. At the 2005 National Conference on Interstate Milk Shipments (NCIMS), FDA supported a resolution calling for all States to prohibit the intrastate sale of raw milk. Under HR 875, FSA is given the statutory authority to unilaterally impose a ban.

Under HR 875, FSA has the power to adopt “preventative process controls to reduce adulteration of food” [Section 203]. Under Section 203, FSA is to issue regulations that “limit the presence and growth of contaminants in food prepared in a food establishment using the best reasonably available techniques and technologies” [Section 203(b)(1)(D)]. FDA has long made it clear that in its opinion the best available technology to limit contamination in milk is pasteurization.

In the event FSA does not issue a regulation establishing a ban, raw milk producers can expect regular, unannounced visits from inspectors. Under HR 875, farms processing raw milk are designated as Category 2 food establishments [Section 3(6)]. Category 2 food establishments are to be “randomly inspected at least weekly” [Section 205(b)(2)(B)]–those farms producing eggs not subject to the Federal Egg Products Inspection Act have also been designated Category 2 food establishments (at this time, many of these farms are subject to neither state nor federal regulation). The inspector paying a visit to the raw milk producer will have had training based on a curriculum developed by the Association of Food and Drug Officials (AFDO) [Section 305(b)]. AFDO’s position on raw milk is that all milk should be pasteurized.

FSA's power to enforce the food safety law is considerable. The administrator can assess civil penalties of up to one million dollars for each violation [Section 405(a)(1)(A)]. Each day during which the violation continues is considered a separate offense [Section 405(a)(1)(B)]. The criminal sanctions are severe as well. If a violation with respect to an adulterated or misbranded food results in serious illness, the perpetrator can be imprisoned for up to five years [Section 401(b)(1)]; if the same results in death, the penalty can be up to ten years [Section 401(b)(2)]. In addition, the FSA has expanded authority to seize, detain and condemn food [Section 402(A)(1) & (C)(1)]. Under the FFDCA, FDA could only condemn food pursuant to a court order [21 USC 334(a)]; the bill gives FSA the power to condemn food without having to resort to the judicial process.

There is every incentive for FSA to levy fines under the bill. HR 875 provides that fines collected by the agency shall be deposited in an account in the treasury [Section 405(e)(1)]. FSA “may use the funds in the account without further appropriation or fiscal year limitation . . . to carry out enforcement activities under the food safety law” [Section 405(e)(2)(A)]. The agency may also use the funds in the account “to provide assistance to States to inspect retail commercial food establishments or other food or firms under the jurisdiction of State food safety programs” [Section 405(e)(2)(B)]; this would give the States reason to support the bill despite the fact that it dilutes much of what is left of the their Tenth Amendment police power to regulate food.

A violation that could prove to be a substantial source of fines collected by the agency would be the manufacture, introduction, delivery for introduction, or receipt in interstate commerce of any food that is adulterated [Section 401(1)]. HR 875 has expanded the definition of “adulteration” in the FFDCA to include “bearing or containing a contaminant that causes illness or death among sensitive populations” [Section 3(3)(b)]. “Contaminant” is defined in the bill as “a bacterium, chemical, natural toxin or manufactured toxicant, virus, parasite, prion, physical hazard, or other human pathogen that when found on or in food can cause human illness, injury or death” [Section 3(10)]. What this means is that with this new definition of adulterated food, FSA will be lowering tolerance levels for contaminants that can be safely and lawfully present in food [Section 204(c)(1)(A)]. Many foods that would not be considered adulterated under current standards would be found to be adulterated under the definition contained in HR 875.

In New York State raw milk producers have been fined for food adulteration when milk samples tested positive for pathogens even though, in most cases if not all, there was no record of anyone becoming sick from the suspect milk. If the bill is passed into law, this experience will be repeated on a national basis.

Those selling strictly in intrastate commerce can still be potentially liable for food adulteration charges or for any other prohibited act in HR 875 relating to interstate commerce. The bill provides that “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” [Section 406]. In other words, the farmer will have the burden of proof in establishing that no sales were made in interstate commerce. What type of evidence would the farmer have to provide to show that none of the product sold ever crossed state lines? There are a number of prohibited acts contained in the bill that do not require the farmer to be doing business in interstate commerce for a violation to occur (e.g., refusing to allow inspection, refusing access to inspect or copy a record, failing to maintain a required record, etc.–[Section 401(4)-(6)]).

Passage of HR 875 into law will result in a much greater degree of federal control of food production and food regulation in the individual States as well as on a national level. The Feds would control to a much greater degree the inputs farmers can use [Section 206(c)(3) & (4)] as well as the products farmers can produce (raw milk). Unannounced federal inspections of small farms will be the order of the day, reducing the level of protection provided by the Fourth Amendment. There will be little left of the States’ police power to regulate food. HR 875 calls for the “integration of the inspection and compliance programs in food processing establishments” of the FSA, state and local agencies [Section 207(e)(3)(E)]. The federal government will be dictating the standards used in these programs to the States.

posted March 22, 2009 05:09 PM         

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What we do for ourselves dies with us. What we do for others and the world is immortal"~