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S. 510: A Study in How Much You Trust Government

Opinion

Editor’s Note:  We’ve asked Jill Richardson, author of “Recipe for America: Why Our Food System is Broken and What We Can Do to Fix It”  for a behind-the-scenes analysis of the legislative battle over food safety legislation that remains alive in the current Congress.

Over the past year and a half, the rumors have made their rounds more than once. “The food safety bill will shut down farmers’ markets!” “The food safety bill will kill organics!” “You can be criminally charged for your own vegetable garden if the food safety bill passes!”

Everyone from elected officials to members of the media to even Robert F. Kennedy Jr. heard these rumors and wondered if they could be true. Some even believed them, despite a few obvious giveaways that the rumors were entirely bogus. (For example, at one point, while Congress was on a two-week recess, emails went around claiming that the bill would pass within the next two weeks–a claim that had already been circulating for six weeks or so at that point.)

So is it true or false? Is the food safety bill (S.510) the end of food as we know it, or is it a much-needed update to an old regulatory system based on outdated science and corporate lobbying? The answer, of course, lies in the middle.

On one hand, some people have legitimate concerns with the bill. On the other hand, it’s easy to agree that we should not continue with our current food safety system that gives us frequent nationwide recalls, sickness, and even deaths due to everyday foods like eggs, spinach, and peanut butter. And, while the bill does a lot, even those who support it know that it does not do everything. (In fact, the bill only affects the FDA, which regulates 80 percent of the U.S. food supply, but not the USDA or EPA, which also have food safety oversight duties.)

The rumors, as you may have guessed, were mostly baseless. They seemed to come from people who were not adept at reading the legalese in which bills are written, who had not watched the federal hearings that helped determine the content of the bill, and who were not even terribly familiar with how Congress operates.

When you get one of those emails, it’s easy to hit reply all and say, “This email is totally bogus!” But what about concerns raised by people who can read legalese and who are familiar with the inner workings of Congress? The crazy rumors managed to obscure a true debate, one that has been quietly taking place as the bill slowly worked its way through first the House, and then – partially – through the Senate. (The food safety bill, S. 510, was almost certain to pass the Senate and go to Obama’s desk this month, until Sen. Tom Coburn – a doctor – decided that he could not allow the bill to move forward, Hippocratic oath be damned. Now the bill seems unlikely to pass before November.)

The true debate takes place between two groups of people who are intelligent, well-informed, and looking to do the best thing for the country. All involved agree that the current situation is highly unacceptable, because nobody deserves to get sick or die from eating peanut butter.

And, generally speaking, most would point the finger at large corporations, because they are responsible for the vast majority of food poisoning outbreaks – particularly the ones that make national news and make hundreds or thousands of people sick. Most would also agree that the 10-acre farm selling produce or jam at a farmers’ market is not the big food safety problem in the U.S.

The disagreement comes over priorities and trust in government. On one side, consumer advocacy organizations like Consumers Union feel strongly that the bill should have no loopholes for unscrupulous individuals or corporations to duck through. If the bill exempts small farms, would a large farm be able to break itself up into many smaller entities to escape regulation?

The folks on this side of the debate tend to generally trust the FDA to do the right thing. Thus far, the bill has been amended to give the FDA discretion to exempt small farms from some of the bill’s provisions. Presumably, the FDA would have the sense to exempt truly small farms but not exempt a large farm trying to evade regulations by posing as many small farms.

Furthermore, they worry about imports. Would an exemption for small farms disproportionately apply in developing countries where food safety is not as advanced as it is in the United States? (Perhaps a better question is why we sign trade agreements that preclude us from imposing harsher food safety regulations on trading partners than we do on our own farmers, given that other countries may not have safe drinking water or strictly enforced laws on pesticides and antibiotics used in agriculture like we do in the U.S. However, changing that is outside the scope of this bill.)

The other side of the debate comes from a group that is less trustful of the government, many of whom are farmers or consumers who enjoy buying their food directly from farmers. The government has not always acted in a way that would earn it trust, and farmers are acutely aware of cases in which farmers have lost their farms due to government policies or even misconduct.

Humans – imperfect humans with egos, interpersonal conflicts, and career aspirations that can get in the way of their job performance, run government agencies like the FDA. Even if the FDA is mostly good, and even if its enforcement of this law is mostly good, farmers worry, “What if their one mistake is my farm?” (Remember the summer of 2008 when the government wrongly identified tomatoes as the source of a Salmonella outbreak, telling consumers to avoid eating raw tomatoes, only to find out that the Salmonella actually came from peppers?)

Clearly, both sides of this debate make valid points. No, we don’t want loopholes that would allow for more foodborne illness or even deaths. And yes, it’s distinctly possible that the government could screw up like they did with the tomatoes and peppers, sending the FDA with newly expanded powers to inspect innocent farms for tainted tomatoes.

The bill language, as it stands now, is intended as a compromise between these two sides. But these are two sides that cannot compromise terribly well. One side wants no absolute exemptions to the food safety bill, and the other side does not think it’s enough to give the FDA discretion about which farms or small processors to exempt.

What should be recognized is that much of the bill is not controversial. Many provisions in the bill do not involve farms at all, but instead focus on food manufacturing facilities and warehouses. However, a farm suddenly becomes subject to many of the provisions if it performs on-farm processing (like making maple syrup, sun-dried tomatoes, or jam).

For example, food facilities, including farms that engage in on-farm processing, must create food safety plans (subject to FDA inspection) that analyze risks, take preventive controls, monitor the effectiveness of the plan, take corrective actions, and provide verification that the plan is working. Facility owners must keep records and periodically re-analyze their plans.

The FDA must “provide sufficient flexibility to be practicable for all sizes and types of facilities,” including small businesses. However, Judith McGeary, of the Farm and Ranch Freedom Alliance, criticizes this provision, saying the bill language uses “undefined terms” that are “in practice, largely unenforceable.”  (Full disclosure: Judith McGeary and I are friends.)

Additionally, the FDA may choose to exempt or modify requirements for on-farm processing “as the Secretary [of Health and Human Services] deems appropriate” for small facilities and low risk activities.

While McGeary pushes for bill language that provides airtight exemptions for small farms, consumer advocate groups fear that any loophole that large would put the nation’s food safety at risk. They tend to think that making a food safety plan is not a big deal for a farm – a small sacrifice to make for a safer food system.

But some farmers – particularly those on small, diversified farms with a large number of products and processes that would each need food safety plans – feel that this is an undue burden.  It’s already very difficult to stay in business as a small farm and diverting labor from farm activities to write and follow food safety plans (when the food they produce isn’t the nation’s major food safety problem in the first place) would make it that much harder to stay profitable.

The bill directly regulates farms in a requirement for the FDA to create standards for growing and harvesting fruits and vegetables, including standards for “soil amendments, hygiene, packing, temperature controls, animals in the growing area, and water.” While the FDA cannot regulate meat, eggs, or dairy, farms with animals could face new rules about “animals in the growing area.”

To date, a few compromises have been included in the bill to minimize any harm it causes to small, sustainable farms. The produce standards must provide “sufficient flexibility” and be “appropriate to the scale of diversity” of the farms. (Again, McGeary criticizes these terms as undefined and largely unenforceable.) The FDA may exempt or modify its requirements for small or very small businesses that grow low risk crops, and the standards cannot conflict with organic regulations for certified organic producers.

However, many sustainable producers that grow organically choose to forego organic certification because of the cost associated with becoming certified, and those non-certified producers would not be included in the protections for certified organic producers.

Last, the FDA must “take into consideration, consistent with ensuring enforceable public health protection, conservation and environmental practice standards and policies established by Federal natural resource conservation, wildlife conservation, and environmental agencies.” Here, McGeary worries that the FDA is not legally obligated to protect natural resources or wildlife.

One more point of contention remains in the bill. The food safety bill requires a new traceability system so that when a food safety outbreak is traced to a particular plant, all of the affected foods can be identified and recalled quickly. Thus far, food sold directly from a farmer to a consumer is exempt from this portion of the bill. However, food sold from a farmer directly to an institution (school, hospital, prison) is not.

Here, the FDA is instructed to consider the impact on farm-to-institution programs and then modify the traceback requirements “as appropriate” to avoid “undue burdens.” Consumer advocates worry that a more complete exemption of all farm-to-institution direct sales could accidentally, for example, exempt an enormous factory farm supplying large amounts of food to, say, the entire Chipotle restaurant chain from any traceability requirements.

All in all, great care has been taken in the year and a half or so since the bill was first introduced to write in many protections for small, sustainable, ethical farmers and small businesses. And, assuming the FDA is trustworthy in following the bill as written, the bill looks pretty good for any small farmer or processor.

The question is which scenario would be more likely: for the FDA to abuse its power (despite bill language encouraging it to be mindful of small farms and processors and sustainable growing practices when enforcing the bill), or for large corporations or farms to sneak through any loophole that was intended for small, sustainable farms and businesses?

The various parties have come far in compromising on the protections provided for small, sustainable farms and processors, but because one side insists on absolute exemptions and the other side refuses to accept that, it seems a compromise that both sides are 100 percent happy with will not be forthcoming.

Jill Richardson has worked with Consumers’ Union in lobbying for Senate passage of food safety legislation.

© Food Safety News
  • Michael Bulger

    Just one point, if I may.
    The section about organics and organic certification. The bill states that “in the case of PRODUCTION that is certified organic” (emphasis mine) there shall not be standards that come in conflict with organic standards.
    It is not “FACILITIES that are certified”. So, seeing as the FDA is also instructed to avoid having multiple standards for types of food, the minimum safety standards for a product would apply across the board. For example, since tomatoes are certified organic on many farms, the FDA’s minimum standards for all tomatoes must not come in conflict with organic standards.
    Those organic-friendly standards would be applied to both organic and conventional farms.

  • http://www.healthyfoodcoalition.org hhamil

    Sadly, Jill Richardson has joined the Make Our Food Safe coalition (MOFS) and its supporters in their misinformation campaign masquerading advocacy as full analysis and science. Don’t be mistaken, this is advocacy NOT a careful weighing of the evidence.
    Even the title is misleading.
    S 510 doesn’t come down to “how much you trust government;” rather, it comes down to whether or not we are willing to use the minds endowing us and then trust our ability to understand this issue.
    Distilling this to being a matter of trust manipulates us into making false either-or choices and diverts us from talking about the actual issues involved.
    Trust is NOT an either-or choice; rather, trust is a continuum in which we rely upon what is appropriate in a given situation.
    Do I trust a casual acquaintance to hold $10,000 in cash without a receipt for a year while I go about my life? Of course not. Do trust that same person with $10 to buy me a hot dog and drink at a sporting event? Of course. Do I trust a person who has repeatedly lied to me on a subject to now tell me the truth? Of course not.
    Does the FDA merit much trust? No, it doesn’t. Trust is only appropriate in areas where it has performed well. In every area of food regulation which I have reviewed, the FDA’s work has ranged from mediocre to astonishingly incompetent.
    Ironically, Jill’s creation of false choices has resulted in some questions that have interesting answers. I’ll address only one of them by splitting it in half.
    Jill asks, “Is the food safety bill (S.510) the end of food as we know it?” Yes, it is.
    First, and never mentioned by its supporters, S 510 will force the grassroots sustainable ag organizations that are mostly volunteer and more underfunded than the FDA ever has been to expend a huge amount of their limited resources to stay on top of the many new rules it will generate when those organizations are already unable to keep up with the existing load from the FDA, FSIS, AMS, APHIS, etc. My guess is there is already an average of more than 1 per day! After S 510, there will be many more and some, like the new standards for produce safety; will be much bigger and more complex. It is foolish to believe that the local, healthy food movement will even be able to keep up with, much less adequately respond to, all of them.
    Second, now any person can grow crops, harvest food from them and sell that food without getting permission. Does the person have rules with which s/he is supposed to comply? Yes. Is there any prior approval process? Not very often. The few are only where substantial processing is involved.
    After S 510, the wannabe grower of fruits and vegetables will be required to wade through a constantly growing number of pages of rules promulgated under the new Sec. 419 Standards for Produce Safety to learn what s/he has to do to be able to grow a given crop. Failing to do so will be a violation of federal law as a “prohibited act” under the Federal Food Drug & Cosmetic Act.
    The FDA is already writing those rules. In the past, every rule the FDA has promulgated has been crop specific and the industrial ag supporters of S 510 are demanding that the future ones be, crop specific, too. So, a small farmer that grows 50 crops to sell at a farmers market and through a CSA will have all those rules to keep up with. When will s/he have time to farm?
    Third, the thousands of small processors making jams & jellies, baking and, even those, producing everything in FDA approved and inspected regional commercial kitchens will be required to sell over 50% of their product at retail OR comply with the new Sec. 418 Hazard Analysis & Risk-based Preventive Control (HARPC) plan requirement. Jill points out “The FDA must ‘provide sufficient flexibility to be practicable for all sizes and types of facilities,’ including small businesses.” Sec 418 clearly calls for certain actions. The rules can’t say those actions are not going to be required. Furthermore, as anyone who understands these formal food safety plans knows, every part is mandatory or they won’t work so it is impossible to make them “practicable for all sizes and types of facilities.” This part of S 510 is utter foolishness because it cannot be done.
    One of the most difficult challenges for those of us who can see the handwriting on the wall is to clearly show the cost of rules that have yet to be written in scores of different situations.
    Fortunately, Pascal Destandau of Pug’s Leap Farm in Healdsburg, Sonoma County, CA has long experience in these types of safety plans and experience in Australia. Pug’s Leap Farm is a small goat cheese only (Grade B) dairy. Pascal carefully reviewed the current regulations and then projected rules using similar rules from New South Wales, Australia. He estimated the annual cost for Pug’s Leap would be $50,000 which includes a new 25-30 hour/week employee to do the additional work required to comply. Implementation would require a loan almost as big as that needed to originally buy the farm. As it only produces 5,000 pounds of cheese/year, Pug’s Leap would have to increase its prices over $10/pound. Obviously, its customers can’t afford such an increase: so, Pug’s Leap is for sale.
    So, let’s go back to Jill’s mentioning the crazy rumors of S 510 “shut[ting] down farmers’ markets!” Will S 510 close them directly? No, will they be drastically changed? Yes. Will some close because they are no longer viable? Yes. How do I know this? I understand S 510 and my wife and I managed our local farmers tailgate market for 14 years. I know first hand what it takes to make a tailgate farmers’ market work.
    Now for the other half of Jill’s false choice: “Or is [S 510] a much-needed update to an old regulatory system based on outdated science and corporate lobbying?” No, it isn’t
    The supporters of S 510 have made much about the need to “modernize” the FDA. The facts are the FDA has astonishing authority which is does not use well.
    The supporters of S 510 talk as if the Federal Food, Drug & Cosmetic Act (FFDCA) has not changed much since its passage in 1938. In fact, the FFDCA has been amended dozens of times including over 10 of which are regarded as “major” changes, like the “Food and Drug Administration Modernization Act of 1997″ (PL 105-115, 111 Stat 2296).
    But the FFDCA provides only part of the legal authority of the FDA. And according to the brief filed in federal court for the FDA on 4-26-10, the Public Health Service Act (PHSA) gives the FDA full authority over all food in the US. That includes food which never crosses a state border and is clearly excluded from its authority under the FFDCA (See http://www.farmtoconsumer.org/litigation/ey100426–ds%20mtd%20memo%20in%20support.pdf).
    In addition, a careful review reveals that S 510’s most controversial provisions (i.e., those altered by Tester-Hagan) contain ZERO NEW AUTHORITY. Rather, S 510 is Congress requiring the FDA to use the authority it has had for decades to write rules AND Congress declaring that it is a prohibited act to not follow those additional FDA rules.
    Mandatory recall authority is a “red herring.” Even the scofflaw, Wright County Egg, issued a voluntary recall within 24 hours of getting the info needed to make the recall. Also, were a company foolish enough to not issue a recall upon reasonable request, all the FDA has to do is issue an “advisory” cautioning consumers about the product. The 2008 salmonella tomato fiasco was caused by such an “advisory” be based upon weak epidemiological statistical probability that turned out to be wrong. Give the FDA mandatory recall and see how long it is before the FDA needs to use it.
    I urge anyone who has gotten this far go to http://farmandranchfreedom.org/food_safety_bills_09 and to learn what can be done to help assure truly safe food will continue to be available.
    As always, I will happily discuss all I have written, if e-mailed at healthyfoodcoalition@gmail.com.

  • http://www.marlerclark.com bill marler

    We have asked Harry to write a Commentary for FSN – her appears to prefer to comment …. A lot.

  • http://www.njpirg.org Surur Sajanlal

    Jill, thank you for your insightful commentary – addressing the concerns for and against S.510.
    “Does the FDA merit much trust? No, it doesn’t. Trust is only appropriate in areas where it has performed well. In every area of food regulation which I have reviewed, the FDA’s work has ranged from mediocre to astonishingly incompetent.” – Harry Hamil
    The FDA has failed to perform well in enforcing a viable food safety system because it lacks the authority to approach food safety with a preventative, rather than reactionary, approach. Under current law, the FDA has lax inspection requirements and no power to recall unsafe foods. The bill is clearly aimed at large, high risk food processing facilities that serve a national market. If the language is vague, there is still opportunity to address that in conference committee, and I have confidence that our legislators will approach their discussions with the best interests of the consumer and small businesses at heart- as is evident by the strong effort to compromise these interests, thus far.
    There is no question that this food safety legislation will be a huge step forward in fixing our broken food safety net. When 5000 people die from food borne illnesses a year, it is inexcusable that the public should wait 13 months for the Senate to act upon this legislation.
    Surur Sajanlal
    Program Associate, New Jersey Public Interest Group
    http://www.njpirg.org

  • Michael Bulger

    To think that the burden of understanding new rules and regulations will fall solely on sustainable ag organizations is to ignore the direction of S. 510. The bill commands FDA to issue a small business compliance guide. Promulgating myths about this bill shutting down farmers markets and outlawing organics is going to generate more trouble than the bill.
    Once again, we return to the point that farmers market and CSA vendors are not going to be hit with burdensome regulation.
    Further, not all companies comply with recall requests. Sometimes the FDA has to get the US Marshal and, in the meantime, contaminated products sit on shelves.
    Richardson is right. It comes down to trust. The language is in there that will direct FDA to be flexible and not focus on the little guy.
    http://thehill.com/images/stories/blogs/smallfarms.pdf
    http://growmeorganics.posterous.com/merkleys-support-of-the-food-modernization-ac
    One must remember that there are three branches of government in the US.

  • dangermaus

    I’m with Harry, the question of “How much you trust the government” is kind of a loaded, and sets people up to fall into their own Democrat vs. Republican biases. At some level, you have no choice but to trust the government about many, many things. “The government” is too vague.
    I do trust a farmer who is confident enough in how he does his work that welcomes his customers to visit, and invites us out to their farm a couple times a year, like the guy from whom I buy my veggies, and the guys I buy a lot of my meat from. If FSMA had the support of groups that people like them belong to, I’d trust the bill – but those groups judged the bill to be a threat to them.
    I DON’T trust injury lawyers who personally make money on food-borne illness cases, big agribusiness outfits that make it impossible to know anything about how their processes (like major supermarket chains, or like that Iowa farm), or people who blithely think that a law will automatically work out in the way it was intended. As far as I have been able to see, those have been the major supporters of FSMA.

  • http://www.healthyfoodcoalition.org Harry Hamil

    Sadly, Jill Richardson has joined the Make Our Food Safe coalition (MOFS) and its supporters in their misinformation campaign masquerading advocacy as full analysis and science. Don’t be mistaken, this is advocacy NOT a careful weighing of the evidence.
    Even the title is misleading.
    S 510 doesn’t come down to “how much you trust government;” rather, it comes down to whether or not we are willing to use the minds endowing us and then trust our ability to understand this issue.
    Distilling this to being a matter of trust manipulates us into making false either-or choices and diverts us from talking about the actual issues involved.
    Trust is NOT an either-or choice; rather, trust is a continuum in which we rely upon what is appropriate in a given situation.
    Do I trust a casual acquaintance to hold $10,000 in cash without a receipt for a year while I go about my life? Of course not. Do trust that same person with $10 to buy me a hot dog and drink at a sporting event? Of course. Do I trust a person who has repeatedly lied to me on a subject to now tell me the truth? Of course not.
    Does the FDA merit much trust? No, it doesn’t. Trust is only appropriate in areas where it has performed well. In every area of food regulation which I have reviewed, the FDA’s work has ranged from mediocre to astonishingly incompetent.
    Ironically, Jill’s creation of false choices has resulted in some questions that have interesting answers. I’ll address only one of them by splitting it in half.
    Jill asks, “Is the food safety bill (S.510) the end of food as we know it?” Yes, it is.
    First, and never mentioned by its supporters, S 510 will force the grassroots sustainable ag organizations that are mostly volunteer and more underfunded than the FDA ever has been to expend a huge amount of their limited resources to stay on top of the many new rules it will generate when those organizations are already unable to keep up with the existing load from the FDA, FSIS, AMS, APHIS, etc. My guess is there is already an average of more than 1 per day! After S 510, there will be many more and some, like the new standards for produce safety; will be much bigger and more complex. It is foolish to believe that the local, healthy food movement will even be able to keep up with, much less adequately respond to, all of them.
    Second, now any person can grow crops, harvest food from them and sell that food without getting permission. Does the person have rules with which s/he is supposed to comply? Yes. Is there any prior approval process? Not very often. The few are only where substantial processing is involved.
    After S 510, the wannabe grower of fruits and vegetables will be required to wade through a constantly growing number of pages of rules promulgated under the new Sec. 419 Standards for Produce Safety to learn what s/he has to do to be able to grow a given crop. Failing to do so will be a violation of federal law as a “prohibited act” under the Federal Food Drug & Cosmetic Act.
    The FDA is already writing those rules. In the past, every rule the FDA has promulgated has been crop specific and the industrial ag supporters of S 510 are demanding that the future ones be, crop specific, too. So, a small farmer that grows 50 crops to sell at a farmers market and through a CSA will have all those rules to keep up with. When will s/he have time to farm?
    Third, the thousands of small processors making jams & jellies, baking and, even those, producing everything in FDA approved and inspected regional commercial kitchens will be required to sell over 50% of their product at retail OR comply with the new Sec. 418 Hazard Analysis & Risk-based Preventive Control (HARPC) plan requirement. Jill points out “The FDA must ‘provide sufficient flexibility to be practicable for all sizes and types of facilities,’ including small businesses.” Sec 418 clearly calls for certain actions. The rules can’t say those actions are not going to be required. Furthermore, as anyone who understands these formal food safety plans knows, every part is mandatory or they won’t work so it is impossible to make them “practicable for all sizes and types of facilities.” This part of S 510 is utter foolishness because it cannot be done.
    One of the most difficult challenges for those of us who can see the handwriting on the wall is to clearly show the cost of rules that have yet to be written in scores of different situations.
    Fortunately, Pascal Destandau of Pug’s Leap Farm in Healdsburg, Sonoma County, CA has long experience in these types of safety plans and experience in Australia. Pug’s Leap Farm is a small goat cheese only (Grade B) dairy. Pascal carefully reviewed the current regulations and then projected rules using similar rules from New South Wales, Australia. He estimated the annual cost for Pug’s Leap would be $50,000 which includes a new 25-30 hour/week employee to do the additional work required to comply. Implementation would require a loan almost as big as that needed to originally buy the farm. As it only produces 5,000 pounds of cheese/year, Pug’s Leap would have to increase its prices over $10/pound. Obviously, its customers can’t afford such an increase: so, Pug’s Leap is for sale.
    So, let’s go back to Jill’s mentioning the crazy rumors of S 510 “shut[ting] down farmers’ markets!” Will S 510 close them directly? No, will they be drastically changed? Yes. Will some close because they are no longer viable? Yes. How do I know this? I understand S 510 and my wife and I managed our local farmers tailgate market for 14 years. I know first hand what it takes to make a tailgate farmers’ market work.
    Now for the other half of Jill’s false choice: “Or is [S 510] a much-needed update to an old regulatory system based on outdated science and corporate lobbying?” No, it isn’t
    The supporters of S 510 have made much about the need to “modernize” the FDA. The facts are the FDA has astonishing authority which is does not use well.
    The supporters of S 510 talk as if the Federal Food, Drug & Cosmetic Act (FFDCA) has not changed much since its passage in 1938. In fact, the FFDCA has been amended dozens of times including over 10 of which are regarded as “major” changes, like the “Food and Drug Administration Modernization Act of 1997″ (PL 105-115, 111 Stat 2296).
    But the FFDCA provides only part of the legal authority of the FDA. And according to the brief filed in federal court for the FDA on 4-26-10, the Public Health Service Act (PHSA) gives the FDA full authority over all food in the US. That includes food which never crosses a state border and is clearly excluded from its authority under the FFDCA (See http://www.farmtoconsumer.org/litigation/ey100426–ds%20mtd%20memo%20in%20support.pdf).
    In addition, a careful review reveals that S 510’s most controversial provisions (i.e., those altered by Tester-Hagan) contain ZERO NEW AUTHORITY. Rather, S 510 is Congress requiring the FDA to use the authority it has had for decades to write rules AND Congress declaring that it is a prohibited act to not follow those additional FDA rules.
    Mandatory recall authority is a “red herring.” Even the scofflaw, Wright County Egg, issued a voluntary recall within 24 hours of getting the info needed to make the recall. Also, were a company foolish enough to not issue a recall upon reasonable request, all the FDA has to do is issue an “advisory” cautioning consumers about the product. The 2008 salmonella tomato fiasco was caused by such an “advisory” be based upon weak epidemiological statistical probability that turned out to be wrong. Give the FDA mandatory recall and see how long it is before the FDA needs to use it.
    I urge anyone who has gotten this far go to http://farmandranchfreedom.org/food_safety_bills_09 and to learn what can be done to help assure truly safe food will continue to be available.
    As always, I will happily discuss all I have written, if e-mailed at healthyfoodcoalition@gmail.com.

  • http://www.marlerblog.com bill marler

    dangermaus – I guess I am one of the “injury lawyers who personally make money on food-borne illness cases.” However, I am not really sure there are many of those evil bastards that spend the kind of money I do that allows for a forum like FSN. I try to be logical. Why in the hell, would I spend the kind of money I do trying to educate business and consumers about food safety? I spend about 1/2 my time traveling and educating business why is is a bad idea to poison your customers. True, that leaves the other 1/2 of my time suing many of those same companies that do not listen – like Parnell and DeCoster. The only small farmers I have sued are those that sell raw milk.
    On S. 510 – I think we have to agree to disagree. I do not this you or Harry are stupid to have the beliefs that you do. I just intend to stay engaged if the bill passes to hold FDA accountable so the intent of the legislation is followed.

  • http://www.healthyfoodcoalition.org hhamil

    Jill,
    Because of the willingness of Judith McGeary to engage me about my earlier comment, I have come to understand that my first paragraph inappropriately accuses you of participating in the misinformation campaign of the Make Our Food Safe Coalition which masquerades advocacy as full analysis and science. I retract my statement and apologize for having made the accusation. I regret having misdirected my ire at you.
    I, also, retract my blanket accusation against all other supporters of the Make Our Food Safe Coalition and apologize for having similarly accused them. I regret having also misdirected my ire at them universally.
    Sincerely,
    Harry Hamil

  • Susan

    I don’t trust the FDA to protect the American people. In my opinion this agency should be called the Food and Drug Allies.
    If FDA wanted to earn my trust, it would ban aspartame from the marketplace and remove Michael Taylor, VP of Monsanto, from Food Safety Czar for starters.
    Michael Taylor has done more to damage the health of the American people than any other person in the history of the USA, and Monsanto is a vile company who is best at deceiving the public on myriad fronts.
    Do I trust the FDA, I do not!

  • Susan

    S. 510 has guidance when telling the FDA to protect small farmers. However, this legislation along with the mindset of Monsanto Food Safety Czar, Michael Taylor, and this administration is eliminate organic farmers so Monsanto can own all the seed. Everything has been put in place.
    There are now two Supreme Court Justices with conflicts of interest, who have been attorneys for Monsanto. Organic farmers are being put out of business right and left because the USDA/Monsanto has come out to their farms wielding the big arm of big brother and eliminating their livelihood, even when regulations are followed.
    This is big government at its worst.
    I don’t trust Obama, even though I worked for him when he was running for President. He has not earned my trust. Where is the science –the peer reviewed science–that he promised?
    It seems only to be used on certain programs. Otherwise, the law is ignored. NEPA has been ignored repeatedly at the USDA when deregulating GMO’s and releasing these foreign DNA containing crops into the marketplaces and fields of the USA. There have been no tests proving their safety, no labeling to give physicians the ability to direct their patients to avoid purchase these laboratory altered crops and animals. In fact, a real food safety bill, would include the peer reviewed testing of GMO’s in food. This bill does not.
    In summary, I do not trust Obama, the Vilisack USDA, the Monsanto VP, Michael Taylor at the FDA, or Monsanto scientists at the FDA. Show me how you can be trusted to protect the safety of our food when there are lies and deceipt.

  • http://www.healthyfoodcoalition.org Harry Hamil

    Jill,
    Because of the willingness of Judith McGeary to engage me about my earlier comment, I have come to understand that my first paragraph inappropriately accuses you of participating in the misinformation campaign of the Make Our Food Safe Coalition which masquerades advocacy as full analysis and science. I retract my statement and apologize for having made the accusation. I regret having misdirected my ire at you.
    I, also, retract my blanket accusation against all other supporters of the Make Our Food Safe Coalition and apologize for having similarly accused them. I regret having also misdirected my ire at them universally.
    Sincerely,
    Harry Hamil

  • dangermaus

    Bill,
    Not to make this too personal, but to answer your question, I think you spend the time and money you do on these sites and public speaking to promote your business and make yourself look and feel like some kind of food poisoning saint.
    Not that it matters, but I don’t think you’re stupid, either. I do, however think you’re person who has no problems with being intentionally misleading, if not dishonest, in using the fear-mongering tactics you use to promote – like citing individual tragedies and total numbers of food-borne illnesses in a given year – to support FSMA. I think you use those tactics in a way that implies a given person would not have suffered a tragedy, or that food poisoning will somehow go away if we give the FDA more power. It’s simply impossible to know that kind of thing. I think more regulation is going to further engrain the way we currently produce food, that will deepen the bad eating habits we have in this country, and keep us from doing what we need to do, which is think about food as living organisms that should be healthy in obvious ways their whole lives, from the seed (or calf/chick/whatever) to our tables.
    Now, I don’t want to sound like some crazy freak in a deer shack – you’re certainly not the only one who looks at the these kinds of problems as matters for the state to solve. Further, any job could be described in a way that makes them look like a parasite – it’s just that injury lawyers make such an easy subject of such comparisons! You remind me a bit of John Kerry, in that way, and I wonder if and when we’ll see you running for office youreself… Because if you think that a problem as permanent as food safety is just a matter of passing another law, you must think we can fix just about anything by passing a law that empowers a government agency to punish people and organizations for doing things differently. And, you allow posts like this, which gives me some reason to think that you have some trace of a soul, somewhere.

  • Jonesy

    The e-mails and opinion piece advance the very dangerous idea that somehow, small or diversified food producers are magically immune to pathogens and should be exempt or at the very least, not bothered with mandatory food safety guidelines.
    Furthermore, a funny thing about the framing of the “who do you trust” issue is the fact that the government is not directly involved in food production. So rather than picking fights with imaginary enemies one could be more secure and confident if the entities, large and small, that do produce the food, are not allowed to make following food safety guidelines an “option”. Don’t let the PR types and politico operators exploit the well deserved sympathy for responsible producers to justify exemptions for those all too happy to take chances with YOUR health.

  • Michael Bulger

    I am kicking myself for not posting this earlier. But alas, better late than never.
    In response to Harry’s concerns about the burden of educating small farmers about new rules. He was concerned that the weight would crush sustainable ag groups. I pointed out the FDA is required to publish a small business compliance guide.
    What I forgot to mention, was the authorized grants that would go directly to sustainable ag groups for just this issue.
    Under Sec. 405, the FDA is authorized to provide grants to organizations that educate growers and producers. The Secretary is ordered to “give priority to projects that target small and medium-sized farms, beginning farmers, socially disadvantaged farmers, small processors, or small fresh fruit and vegetable merchant wholesalers.”
    The recipients of these funds may include “a nonprofit community-based or non-govern- mental organization, or an organization representing owners and operators of farms, small food processors, or small fruit and vegetable merchant wholesalers…”.
    The money is supposed to go to groups that represent diverse agricultural practices and it is through these outreach programs that information on how best to interact with small businesses is to be gathered (as well as the public comment period).
    This will put money in the pockets of sustainable ag groups.
    (I have not mentioned Sec. 399V.5 which directs the Integrated Centers of Excellence to conduct outreach and education as well.)

  • dangermaus

    If all that is true, why do small farm groups still oppose it? Why is it that the organizations now complaining about it’s getting held up the big players like The Grocery Manufacturer’s Association, and the Snack Food Institute, or politically-driven organizations like USPIRG? Find me someone that’s changed their mind because of this “Managers Amendment”…
    It still doesn’t sound like the issue has been debated… Why is Reid using the Iowa egg recall as an example of why it FSMA needs to be passed when the rules affecting that specific situation have already been changed? Where are the estimates of what impact this this new layer of regulation will have on incidents of food-borne illness?

  • jennifer sanders

    Run the numbers people. 3 meals a day x 365/yr plus snacks = #of food borne illness exposures. The CDC has the #of events, deaths, hospitalizations, illness, and please don’t add the events together as you screw up the truth. If this was such a DANGER to mankind don’t you think the accurarial charts would have insurance policies for the event. Furthermore, a significant percentage of the illnesses are self imposed; DUH!!! You are warned on the carton not to eat eggs raw!! The crazy egg farmers are being burned at the stake (CSPAN coverage of their witch trial) for emotional effect to pass this NAZI bill. YES they are nuts, but so is the sissy FDA head who can’t seem to focus on anything but what he CAN’T accomplish rather than what he is mandate to do. Take a film crew and go on YouTube if you think something might cause harm or death, this guy has no eggs of his own! I think we should sue him for hiding under his desk with full knowledge of these dangerous events and whining that he needs more laws to do his work properly. You make me SICK mr. FDA!! FIRE yourself before we do. You have the tools already, do your job. Each person who signed these bills should have to do one weeks work in the fields of a farm, you are so out of touch with what food production is and isn’t. You could no more grow a bean than you can fly a plane. Good luck, citizens, buy your seeds and grow lights cause it looks like we’ll be in the basement hiding like the Jews had to.

  • Kylie

    I’m with you, Susan.
    The fact is, NO ONE with a blatent conflict of interest should be in a high-powered position in the government. Period.
    It IS a conflict of interest, and should not (and used to not!) be allowed.
    That means, if Ms. Sebelius is serious about wanting to “restore faith in the FDA”? She might need to get Obama to FIRE Michael Taylor. Mr. Taylor DOES NOT BELONG in ANY position of power in the government. Neither does anyone who ever held high position in big agra or big pharma. And no one can convince me that there are NO OTHER QUALIFIED INDIVIDUALS to fill these positions. There are.
    Until these bills are being authored – and the committees they form being headed – by people with ETHICS? No, I don’t believe anything the FDA says. Who would?

  • dangermaus

    (I meant John Edwards, not John Kerry)

  • victor blair

    sure, you can trust the government… just ask any Native American.

  • John K

    One would hope that foreign farms of any size whatsoever would have to meet the highest standards if the wish to export their products to the USA. It is not the small American that are the source of the outbreaks.

  • Bill

    Jill Richardson is rather naive. No one who has seen much of the world, let alone lived long in the US, would endorse giving power to the government “trusting” that it would use it wisely. She obviously has no historical perspective of governments.

  • Jerry Wigman

    You either need to be a vested interest in profiting from this bill or a complete and utter pro-corporate fascist government religious moron.
    Food Safety? Seriously? Come on? 90% of our food supply is GMO, tons of pesticides, herbicides, completely unsustainable, petroleum-based fertilizers used all to produce 2 commodity crops – GMO corn and soybeans that are in almost everything in your national supermarket or national restaurant chain.
    Many of the general public no matter what political side they are on are no longer “in the dark” anymore. We’re not stupid. We have the Internet now, so all you corporate and lobbyist shills are really wasting your time because we already know the truth.
    Big farms and big food producers are the problem for the reasons stated above. They create adulterated food because it is completely artificial (GMO, herbicides, pesticides, petroleum-based fertilizers, mono-culture, antibiotics, etc.) The same people behind pushing this bill through are the same people that feed this GMO adulterated crap to corporate plant-raised cattle and poultry, whose normal diet is grass. They create freaks of nature, animals that grow to maturity in half the time as normal. And we wonder why people get cancer?
    Come on, we’re not stupid. The problem is – you are just evil. We’re not going back to being ignorant. The question is when you are going to stop being manipulative and evil for profit? When is it going to happen?
    Seriously, and you can try to come back with your psuedo-intellectual blabbing, but you have no good science behind what the need for this additional legislation. It is completely unnecessary and will be further used to enrich everyone related with big ag and big corporate food producers and distributors as well as put all the “whiny” local organic sustainable farming folk that have been giving you big guys bad press all these years out of business.
    It is clear as day. I understand legalese. You use it in such a way to have multiple meanings for the vested interests to escape costly regulation that the smaller players don’t have enough money for lawyers to figure out, so they go out of business. All under the guise of “Food Safety” so all the ignorant mothers and inherent mindless authoritarians out there have a reason to get up in the morning. 5000 people die a year? Out of 300 million? That’s nothing. That’s less than 0.00167% of the population. I bet that isn’t even an accurate statistic either.
    That information is just misleading to the general population. And you do it on purpose, to manipulate people for your own or your employer’s greed. You have absolutely no conscience. That’s what it comes down to. You just don’t care about people.

  • http://www.terrycavanagh.com Terry Cavanagh

    There are so many great points above. I would like to mention a few that really hit home.
    I agree with the comments above indicating that trust is earned. The FDA and the government in general don’t qualify there. What is there to debate, really?
    Mr. Wigman has hit a crucial point too; the real danger to our society is not an occasional outbreak of food poisoning but the consistent/everyday production and marketing of food product latent with chemicals, genetically modified DNA, weak in it’s nutrient value, and often subject to things like irradiation.
    Risk is inherent in life. When we ask the government to protect us from every little risk, well it’s like becoming an animal living in a zoo. The price for our protection (if we even get it) are the bars and cages. The animal is protected but it’s just not the real deal is it? The protection removes us from our freedoms and from LIFE!
    The money necessary to implement this bill would promote a much more physically and emotionally healthy society if it were spent in educating people about good nutrition and making healthy food choices. This really can’t be argued by anyone willing to be rational and look at the facts. So what motivation can there possibly be to empower the FDA with more authority and resources? As someone indicated above, they’ll undoubtedly just make matters worse.
    Teach people about the problems that most of the products from big agriculture and big biotech create. That’s the best thing we could do – help people have an educated choice.

  • http://www.rawmilkcolorado.org Mary Blair McMorran

    Many excellent points made in the comments so far, but I haven’t seen anyone mention this:
    When we speak of small farms, lets make a distinction between small farms and small raw dairies. There is absolutely no doubt in my mind that the FDA will make a bee-line to shut down raw dairies, because they already do so very aggressively. They have no intention of helping small farms!
    There are 78 legal raw dairies in Colorado. Five years ago, there was one. Most produce other farm products, such as eggs, meat, and produce. But what brings the consumer to the farm is raw milk. The money building our rural communities over the past five years will be shut off. Sure, herd shares are legal in Colorado so we have a year or two, but it will take an army of seriously committed consumers to stop the FDA after 510 passes. (Will we have the ambition and energy? Not if we’re eating factory farm food…been there, done that. That food is the gradual but inexorable disintegration of Americans.)
    It’s so gratifying to crack down on raw dairies – their food is so traceable, their consumers so local. They can dust off their hands, blow the smoke off their pistols, yessiree – Got that public health risk (10 sickened) shut down! Aren’t we amazing?
    But ask them to trace back illness of thousands and several deaths from spinach? Months later, and they’re still ‘working’ on it, and ‘working with’ the producers to identify the problem. No bias against small farms?
    The Tester amendment was changed to allow the FDA to lift the exemption for small farms if it perceived a risk. They already have clearly stated that they perceive a risk with raw milk, and if you follow the news, you know what they have done nationwide to eliminate this perceived risk. In the process, they are destroying our local food supply. That is not a coincidence; they don’t shut down the wallets that feed them.
    The Raw Milk Association of Colorado has initiated a peer-review process, as well as plans to participate in a study to develop a Raw Milk Producer Certification Program.
    We can self-regulate; we know our business better than the FDA. Keep them out of our kitchen!

  • Leah

    Harry Hamil’s commentary is about as far to be trusted as his non-existent website, which is STILL “under construction”.
    Too, his backpedaling when faced with people questioning his commentary is suspicious.
    Do I trust him? I do not; moreover, I do not trust his claims that regulations make us “safer”.