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S.510: A Sustainable Ag Perspective III

Part three of a three part discussion with Harry Hamil, founder of North Carolina’s Black Mountain Farmers Market, on how he would change the Senate food safety bill to lessen the impact on small and sustainable agriculture

Harry Hamil has worked to revive local, healthy food for people in western North Carolina since 1995. He and his wife, Elaine, work full time growing, distributing and retailing locally grown food at the Black Mountain Farmers Market, a year-round market the couple founded in 2003.

Since the passage of the House Food Safety Enhancement Act (H.R. 2749) last July, Hamil–who has a rare affinity for detail and a keen understanding of the policy making process–has focused full time on the pending FDA Food Safety Modernization Act (S.510) in the Senate, advocating for changes that would help lessen what he foresees as a detriment to the burgeoning small and sustainable agriculture movement

Food Safety News had a chance to discuss, in detail, some changes Hamil would like to see made to the food safety bill before it clears the Senate. (See Part I and Part II of the discussion)

Part III: More recommendations and the outlook in the Senate


“We’re all in favor in safe food,” says Hamil. “But we’ve created a bifurcation, that you’re either for it or your against it, which is exactly what the Make Our Food Safe Coalition campaign has been doing to this. They say you’re either for it or your against it.”

“Who on earth can be against food safety?” asks Hamil. “Nobody can–but I can look at a specific provision and say, what does this provision have to do with food safety?”

In a perfect world, Hamil would split S.510 into two pieces–the provisions that would impact growers, producers, and value-added processors directly would be split off and sent to the Senate agriculture committee to address what Hamil considers “extremely serious issues.”

One of those serious issues, as Hamil sees it, is the power it gives to the Secretary of Health and Human Services. “[S.510] empowers the Secretary of Health and Human Services [HHS] to initiate rulemaking. What does the Secretary of Health and Human Services know about agriculture?” 

“I just don’t see how that’s the appropriate person–we already have within the federal government the specific designation of people below the secretary level,” adds Hamil. “In my opinion, one of the ways to modernize the FDA is to specifically empower the commissioner of the FDA, not bring in the political level that comes with the full Secretary level.”

Hamil has other issues with several parts of the bill. Under section 419–the produce safety section–which calls for a rulemaking process to be begun within one year, Hamil advocates expanding the timeline to two years. “The number of mandates they’re supposed to cover in this program are huge. What they need to do is break it into pieces, not only so it’s more manageable for the FDA, but so the rulemaking process is more manageable and provides for more input from those affected by it.”

Section 419 also calls for input from the public on the rulemaking and it calls for a total of three hearings nationwide. “That is crap–that is such crap,” laments Hamil. “It blows me away. You’re saying you want input from farmers, and you put it in three locations and you give the FDA the ability to call for the hearings in the middle of the season, which they did this year to us.”

“They force us to choose between rules and pulling our crops in,” explains Hamil. 

“We had the National Leafy Greens Marketing Agreement discussion right through the middle of the summer. So everybody who participated in that who was a farmer had to set aside what makes them their living in one of the most critical periods of the year–and that’s crap.”

“The FDA in the last eight years hasn’t done crap, as far as I can see, in terms of doing these types of rules and regulations. And the all of the sudden it lays on us a rule on leafy greens on the FDA side, it lays on us a rule on melons, it lays on us the final rule for the eggs, it lays on us a rule for tomatoes.”

“On the USDA side, we had the National Leafy Green Marketing Agreement, we had the definition of the word natural as a marketing claim, we’ve had numerous other changes.”

“One of the ways that you keep sustainable agriculture from having a full voice in the process is: you load up the process. We don’t have the resources either in people, in time, or in money to engage a lot of issues all at once,” adds Hamil.

“There needs to be a statement about the timing of such things. We still have seasonal agriculture in this country. You don’t ask, in the middle of tomato planting season or tomato harvesting season, for somebody to review a tomato rule, you do that in the wintertime–that should be specifically mandated.”


Harry has directed his frustration with burdensome federal regulation to looking at the actual language in the pending food safety legislation. He has a couple recommendations:

  1. Continue registering all food facilities including those farms which are required by existing regulations to register.  (This would mean all could be contacted as needed and regulators would have accurate counts and descriptions of activities for future use.)

  2. Apply the new “Hazard Analysis and Risk-based Preventive Controls” in the new Section 418 (under Section 103 of S 510) only to those facilities whose average annual gross profit (or its equivalent) for income tax purposes for the three most recent tax years is greater than or equal to $500,000. 

  3. Facilities whose average annual gross profit (or its equivalent) for income tax purposes for the three most recent tax years is less than $500,000 would continue to be regulated by the State in which they are located and  by existing Federal regulations (e.g., acidified and low-acid canned foods and/or the 657 page Food Code 2009).

Thoughts on what could happen in the Senate

Like many others in the food world, Hamil is unsure whether the Senate will adopt Senator Debbie Stabenow’s language to help boost food safety efforts for small growers. “My guess is that the success of this will primarily depend on how those of us concerned about small producers and sustainable agriculture organize ourselves.”

“Because, on the Senate floor, there will be the chance, apparently, a very open chance in terms of amendments. Apparently that was part of the deal for the November the 18th markup,” explains Hamil.  “Now, whether or not that all goes out the window, because the Senate leadership follows in the footsteps of the House leadership, which totally refused that possibility.”

“I don’t know, it’s certainly not somethi
ng to be very confi
dent about,” adds Hamil, who sees a fight over the bill in the Senate as a lingering possibility–possible but not likely due to the successful effort to maintain bipartisan support for the bill.

Hamil, though admittedly an outsider, who, in his own words, “knows nothing,” has a few thoughts about what may happen in the unpredictable Senate. 

“It seems to me, if I were going to talk about who has the power here….I’ve been told that Senator Enzi and the Republicans are handling the bill on the floor. That makes sense, if you’re trying to do the bipartisan thing, as you had the Chairman’s mark on the Democratic side,” says Harry.

“If that is true, thaen that, of course, would mean that Republican Senators would have an inside track for their amendments to be adopted in terms of getting a chance for their amendments to be worked into the bill. Considering that, then that would make Senators Burr, Isakson, and Gregg,” the initial cosponsors of the bill, extremely powerful, because it’s their bill,” says Hamil.

“We already saw that on November the 18th. Two of the amendments they accepted were form Senator Burr.

“The other player that I believe is key–and has yet to be heard from publicly–is Senator Blanche Lincoln of Arkansas…she was the 60th vote to bring the health care bill to the floor,” Hamil points out. “I’ve read a number of things on the health care bill side saying the Democrats owe Blanche Lincoln.”

“Its already shown up in one little way. The agriculture committee held a hearing in Little Rock talking about the impact of a very wet harvest season.” And Hamil agrees the Democrats owe her a lot more than that. As Blanche Lincoln now chairs the powerful Ag committee, she is well-positioned to advocate on behalf of growers if there are lingering concerns on the food safety bill. 

“My guess is that any reasonable request from Senator Lincoln would get attention, lots of attention.”

Does Hamil have hope that the final bill will consider the impact on small and sustainable agriculture?

“As they say, hope springs eternally.”  

“Look, I have faith that there a number of very capable people…there are lots of people who are now paying a lot of attention to this. I have faith in those people to look at these issues. And I have faith in the American political process, and I have faith that our chance in the Senate in much much greater than it is in the House,” says Hamil.

“I’m also cognizant that if we don’t get the Senate bill amended, we have no chance in the conference bill. If it isn’t in the Senate bill, then we’re looking at the possibility that agriculture, food security–all sorts of things–could be set back a decade, if not worse.”

© Food Safety News
  • Harry Hamil’s concerns are well articulated. The idea of setting some income limits for companies that should have HACCP plans is a good way to ease the cost and competitive burden on smaller companies that produce for local markets.
    Two issues underlying all this that Hamil doesn’t get at are these: What is the FDA doing suddenly regulating INTRASTATE sales of foods? It’s a federal agency, responsible for issues affecting INTERSTATE commerce. And what is FDA doing setting “Good Agricultural Practices” (per the Senate bill). It has no business in either area. All of which underlies the reality that this “food safety” legislation plays into FDA’s real expertise: politics and power .

  • Harry Hamil’s concerns are well articulated. The idea of setting some income limits for companies that should have HACCP plans is a good way to ease the cost and competitive burden on smaller companies that produce for local markets.
    Two issues underlying all this that Hamil doesn’t get at are these: What is the FDA doing suddenly regulating INTRASTATE sales of foods? It’s a federal agency, responsible for issues affecting INTERSTATE commerce. And what is FDA doing setting “Good Agricultural Practices” (per the Senate bill). It has no business in either area. All of which underlies the reality that this “food safety” legislation plays into FDA’s real expertise: politics and power .

  • hhamil

    Thanks for commenting, Mr. Gumpert. I appreciate your compliment.
    I agree completely with both of your points. I will address them individually.
    Though not a lawyer, I can point out what my research of this has revealer. It is true that the language of the Food, Drug and Cosmetic Act to ONLY interstate commerce, in reality there is almost no limitation because of 2 reasons.
    First, the act, itself states in 21 USC 379a Presumption of existence of jurisdiction, “In any action to enforce the requirements of this chapter respecting a device, tobacco product, food, drug, or cosmetic the connection with interstate commerce required for jurisdiction in such action shall be presumed to exist.” In this case, it means the entity charged must convince the court that the food was NOT in interstate commerce.
    Second, the first requirement is extremely hard to do because in 1942 in Wickard v. Filburn the U.S. Supreme Court ruled, “That appellee’s own contribution to the demand for wheat
    may be trivial by itself is not enough to remove him from the
    scope of federal regulation where, as here, his contribution,
    taken together with that of many others similarly situated, is
    far from trivial…Home-grown wheat in this sense competes with wheat in commerce.” This bluntly states that food grown for consumption at home can be considered to be in interstate commerce because it “competes with” food in interstate commerce.
    In fact, the FDA has been regulating food produced, sold and consumed within a single state for years.
    As for the FDA setting “Good Agricultural Practices” (GAPs). It already is issuing “guidance” which is the equivalent of GAPs. In fact in July 2009 during the middle of farmers growing season, the FDA gave us 90 days to respond to 3 separate “Guides to Minimize Microbial Food Safety Hazards” of leafy greens, melons and tomatoes. S 510 mandates that similar rules be proposes ON EVERY TYPE OF CROP it regulates by 2 1/2 years after the bill is passed.
    BTW, they are set by the Secretary of Health and Human Services, not the Commissioner of the FDA. The Secretary “may” consult with the USDA. This gives the FDA huge authority where is has extremely limited expertise.
    If you or anyone would like me to send them documentation on this or anything I have said, please write me at healthyfoodcoalition@gmail.com.

  • Harry Hamil

    Thanks for commenting, Mr. Gumpert. I appreciate your compliment.
    I agree completely with both of your points. I will address them individually.
    Though not a lawyer, I can point out what my research of this has revealer. It is true that the language of the Food, Drug and Cosmetic Act to ONLY interstate commerce, in reality there is almost no limitation because of 2 reasons.
    First, the act, itself states in 21 USC 379a Presumption of existence of jurisdiction, “In any action to enforce the requirements of this chapter respecting a device, tobacco product, food, drug, or cosmetic the connection with interstate commerce required for jurisdiction in such action shall be presumed to exist.” In this case, it means the entity charged must convince the court that the food was NOT in interstate commerce.
    Second, the first requirement is extremely hard to do because in 1942 in Wickard v. Filburn the U.S. Supreme Court ruled, “That appellee’s own contribution to the demand for wheat
    may be trivial by itself is not enough to remove him from the
    scope of federal regulation where, as here, his contribution,
    taken together with that of many others similarly situated, is
    far from trivial…Home-grown wheat in this sense competes with wheat in commerce.” This bluntly states that food grown for consumption at home can be considered to be in interstate commerce because it “competes with” food in interstate commerce.
    In fact, the FDA has been regulating food produced, sold and consumed within a single state for years.
    As for the FDA setting “Good Agricultural Practices” (GAPs). It already is issuing “guidance” which is the equivalent of GAPs. In fact in July 2009 during the middle of farmers growing season, the FDA gave us 90 days to respond to 3 separate “Guides to Minimize Microbial Food Safety Hazards” of leafy greens, melons and tomatoes. S 510 mandates that similar rules be proposes ON EVERY TYPE OF CROP it regulates by 2 1/2 years after the bill is passed.
    BTW, they are set by the Secretary of Health and Human Services, not the Commissioner of the FDA. The Secretary “may” consult with the USDA. This gives the FDA huge authority where is has extremely limited expertise.
    If you or anyone would like me to send them documentation on this or anything I have said, please write me at healthyfoodcoalition@gmail.com.