Header graphic for print

Food Safety News

Breaking news for everyone's consumption

Publisher’s Platform: Tea with a Cup of Crazy

I know people get worked up over legislation–health care being a recent example–but the blather coming from the Tea Party types about food safety is a bit over the top, even for them. Here are my favorite Tweets of the week about the Senate struggle to vote on safe food:

“You know what’s next after food safety? Socialism and shariah law. DEMINT FOR PRESIDENT.”

“Locals say Food Safety Modernization Act will devastate U.S. farmers.”

“S 510, the Food Safety and Modernization Act. It will end organics! “

“When did food safety become a buzz word for control of the US people?”

“S 510 “Another power grab! Against veg gardens?”

“S. 510 Would Grant the FDA New Powers 2 Criminalize Backyard Gardening, Imprison People who Sell Raw Milk.”

“510, the Food Safety Modernization Act, has been called ‘the most dangerous bill in the history of the United States’ “

“S 510 Food Safety Modernization Act vote imminent: Would outlaw gardening and saving seeds”

“Overreaching Food ‘Safety’ Modernization Act Would Destroy Family Farmers”

“Pls defeat S-510 Food Safety Bill.  It would ban organic farming & Regulate Home Gardening”

” ‘Food Safety Modernization Act’ (S510), is this a new threat to civil liberties?”

“Senate Bill 510 Food Safety? The FDA has killed far more people than contaminated eggs or lettuce.”

“Only 58 days to lobby against Bill 510 – Food Safety Modernization Act – Farmers markets /saving seeds/growing ur own under threat!”

“Estrella slam right before vote on food safety suspicious.”

And, of course there is the King of the Crazies, Glenn Beck–he has now figured out that he can scare people about food safety.  Perhaps, instead of convincing his followers to buy gold from his advertisers, it will be heirloom seeds?

So can’t the Tea Partiers stop being so crazy and actually be rational?  Here is the reality about S. 510 as it stands on small farms after last week’s compromises and the attachment of the Tester Amendment (where is the love for co-sponsor Hagen?):

Retail Food Establishments:

In the 2002 Bioterrorism Act, Congress required that all facilities that manufacture, process, pack, or hold food must register with FDA, but it exempted from that requirement “retail food establishments.” FDA defined the term at 21 CFR 1.227(b)(11).  For purposes of the definition, the Tester amendment would require FDA to clarify that “direct sales” of food to consumers includes sales that occur other than where the food was manufactured, such as at a roadside stand or farmers’ market.

Qualified Exemptions:

-Facilities:

• Food facilities would qualify for an exemption from the preventive control/HACCP provisions in section 103 of S. 510 under certain conditions:

(1) They are either a “very small business” as defined by FDA in rulemaking; or (2) the average annual monetary value of all food sold by the facility during the previous 3 year period was less than $500,000, but only so long as the majority of the food sold by that facility was sold directly to consumers, restaurants, or grocery stores (as opposed to 3rd party food brokers) and were in the same state where the facility sold the food or within 275 miles of the facility.

• Facilities that qualify would be exempt from the preventive control/HACCP provisions in S. 510, but would still have to comply with one of the following:

(1) They would have to demonstrate that they have identified potential hazards and are implementing preventive controls to address the hazards, or

(2) They would have to demonstrate to FDA that they are in compliance with state or local food safety laws.

• Disclosure: Any food sold by a facility that opts for compliance option (2), above, would have to prominently and conspicuously provide the name and address of the facility that produced it on a food packaging label, or at the point of purchase, as appropriate.

• Study: FDA would have to conduct a study of the food processing sector to help inform the definition of what it means to be a “very small” facility for purposes of the exemption above.

-Farms:

• Farms would qualify for an exemption from the produce safety standards in section 105 of S. 510 if, during the previous 3 year period, the average monetary value of the food they sold was less than $500,000, but only so long as the majority of sales were to consumers, restaurants, or grocery stores (as opposed to 3rd party food brokers) and were in the same state where the farm harvested or produced the food or within 275 miles of the farm.

• Any food sold under the exemption would have to have the same disclosure set forth above.

-Limitation:

• In the event of an active investigation of a foodborne illness outbreak that is directly linked to a facility or farm exempted under this section, or if the Secretary determines that it is necessary to protect the public health and prevent or mitigate a foodborne illness outbreak based on conduct or conditions associated with a facility or farm that are material to the safety of food, the Secretary may withdraw the exemption provided to such facility under this section. No activities under this limitation expand existing FDA authorities to inspect farms.

Are compromises perfect?  No, especially if you insist on acting like a 2 year old when you do not get what you want–but welcome to democracy.  Do I agree with all aspects of S 510 or the Tester Amendment – Hell No!  For example, I do think that the bill needs to be fully funded in order to have the resources to inspect those high-risk facilities that have been poisoning us over the last decades.  I am hoping that can happen as the economy turns around and if politicians have the guts to fairly tax the wealthy in this country.  

Do I think that the Tester Amendment excludes from oversight some high-risk facilities?  Yes, I do.  But, can local and state regulators pick up that slack?  They can and they should.  Also, my biggest concern about no oversight between farms sales to wholesalers was lessened somewhat by the insertion of “(as opposed to 3rd party food brokers)” into the compromise language.  Perfect?  No.  Can I live with it?  Yes.  Should the new “Big ag” opponents live with it too?  I hope so.

S. 510 and the Tester Amendment are a good bill, not great, but good.  It is time for all sides to come together and pass it, work out a compromise with House Bill 2749, and get it to the President’s desk before he carves the Christmas goose.

© Food Safety News
  • aed939

    There is no language that clarifies that the FDA only has the authority to exercise the limitation to the exemption on farms that rely on the exemption. With this lack of clarity, it is reasonable to expect that the FDA will be emboldened by this legislation to go after any or all of the tweeted scenarios you described above. For example, the FDA’s dairy director has stated that raw milk should not be consumed by anyone at any time for any reason. It is not unreasonable to believe that the Secretary might use this opinion to declare all raw milk sales as prima facie unsafe conduct, and then try to go after intrastate sales using the limitation-to-the-exemption tool. Fortunately, no amount of legislation can overcome the limit of the commerce clause to interstate (along with international and extra-tribal) commerce, and the 10th amendment–reserving regulation of intrastate commerce to the states. I would love to see more regs (and user fees) on the large food industry, but not without complete clarity that 1) small producers are exempt, 2) intrastate producers that do not rely on the exemption are immune to the Secretary’s limitation, and 3) transportation of presold product across state lines by the final consumer or agent thereof, with no subsequent sales, does not constitute interstate commerce. Put these small-farm safeguards in the bill, and you will find braod support for this food safety legislation.

  • a. morrissey

    Do you think our vegetable gardens should be regulated by the government?
    We pay for the seeds
    We pay for the care or do it ourselves
    We eat and share with neighbors
    We have them in our property
    We pay our taxes for that property
    Will that include the vegetable garden at the White House?
    What is the rationale behind this?
    If the Congressmen have no time to read the Bills they have signed, how much in taxpayers funds is this “brilliant idea” going to cost us? Who will check before approval?
    Would it not be better to check the produce coming from Chine and their practice to use human excrement to “enrich” the soil?
    Should we expect an improvement in regulating the produce imports from Mexico and Haiti or cheese coming from some producers in California prior to additional spread of e-coli, listeria and other food borne diseases?

  • Charles B Smith

    Bill,
    You obviously aren’t a small farmer or you would doubtless have a different perspective on this matter.
    Our organic farm frankly cannot afford the costs of additional government legislative intervention. and to you who sit in your ivory towers and say we are whining, I would love to have you work on a farm for a while… The optimism of farmers is proverbial (unlike liberals like you)
    Far more people die from lack of exercise than from any food safety issues. Are you proposing the government should legislate exercise?
    C Byron Smith

  • Wanderer

    Byron: If you notice above (or read the text of the bill), your farm is exempt under the law as written; or do you make over $500,000 dollars a year from your form, and/or sell the majority of your produce to third-party brokers? Reading the bill is not the mark of an ivory-tower intellectual; it’s the mark of someone who thinks knowing what’s going on is more important than just screaming at everything that comes through the door.

  • C.B.Smith,
    Before you lump us together, I am fairly liberal and totally opposed to S-510. It may be the worst thing since the patriot act not to mention ridiculous.
    I have little doubt that this bill, as usual, has more to do with control and $$$$ than safety.
    I think that, just for suggesting this atrocity, Harry Reid should be removed from office.
    As soon as the tar dries

  • DKP

    ALL – WAKE UP! There are more than enough laws in place to both regulate and punish. We do NOT need yet another layer of costly government that we, the people, will ultimately have to pay for.
    Do we need to pay for an ‘appointed’ “Food Czar”, his/her entire staff, travel budget, enforcement team, offices, utilities, 6-figure incomes, cadilac health-care, and over-the-top retirement??? And to do what? Ensure that the laws we already have in place are being enforced…again?
    Enough is enough.

  • Here is yet another tweet from this morning – “@JoeSixpackSays: Food “Safety” Bill, another Oxymoron, just a Monsanto Corporate takeover, in disguise.” These fears are simply silly. It is time to stop acting like 2 year olds and deal with reality.
    I am not a farmer (although I do have 6 chickens and a garden), but I grew up on a farm where my parents still live.
    I think if you read the summary I provided of the Tester Amendment (which is now a part of S 510 going forward), small farmers that want to sell directly to consumers and at farmer’s markets, grocery stores and restaurants, are exempt from FDA oversight/paperwork. As I said, I think the addition of oversight/paperwork on sales to wholesalers is reasonable as that product is likely to be added to other farmer’s products and sold into mass production.
    Milk – raw milk – is not allowed to be sold across state lines after the FDA was forced to regulate it by a lawsuit brought by public health officials. Raw milk is now regulated on a state by state basis. Although I agree that raw milk consumption is risky, it is going to be regulated by state law decisions as long as it does not cross state borders IMO.
    Regarding the fear of imports. Although I know that more inspections are necessary, the reality is that imports have accounted for a very small fraction of foodborne outbreaks in the nearly 20 years I have been involved with outbreaks. US Companies have been doing a great job of poisoning us without import fears. Frankly, that is the focus on this bill, inspecting more imports and holding large-scale food manufacturers more accountable.
    It is time to stop the conspiracy theories and grow up.

  • One thing to think about. Now that the Tester/Hagen amendment has been added to S. 510, a number of ag industry groups have pulled support for the entire bill. Hopefully, consumer groups and other industry groups in the safe food group will not follow suit.
    http://www.marlerblog.com/case-news/s-510—it-is-not-over-until-the-fat-vegetable-sings—vegetables-say-no-to-tester-amendment/
    For those that might have an interest in knowing were S. 510 is now, see this post:
    http://www.marlerblog.com/lawyer-oped/thanks-phil-brasher-for-explaining-the-unexplainable-in-the-senate-on-food-safety/
    Bottom line, I think passage of any food safety bill is becoming more and more unlikely. Although I think S. 510 with the Tester/Hagen Amendment is the only thing that is likely to pass, with the withdraw of support from some groups and Sen. Coburn’s continuing attempts to stop it, passage is seeming less likely. Even is it does pass, it has to be compromised with HB 2749 (The House’s version of Food Safety Legislation) and then signed by the President before the end of the year. Seems remote to me.
    If this legislation dies, I really do not expect to see it again (unless we have and outbreak that impacts some Senator’s or Congress member’s child or grandchild) in the coming decade. Once the R’s take the House, Food Safety Legislation is “toast.”

  • jonmo

    C Byron Smith? So you think all farmers are republicans? Everyone knows they really are wacky socialists living off government subsidies. Shouldn’t you start by giving back all that money you take from Uncle Sam? How does that fit with your “I take care of myself” philosophy exactly?

  • It was a surprised to find out that you favor the tyrant’s latest assault on our liberty, the food safety bill. Even worse, you are a co-sponsor of this oppressive legislation. As you must know, this oppressive legislation limits the ability of the individual to produce food and will cause an increase the cost of food. How did we ever survive the victory gardens in World War II? The primary beneficiaries of this action are companies in the food industry benefiting from the reduction in competition.
    The increasing government control of the food supply will have the objective of enriching the tyrant’s political cronies, extend the tyrant’s control over the individual and increase your food cost. The law will have a nothing to do with food safety except lip service. Peeling that FDA Sticker off the skin of your apple is enough of an aggravation, now you propose more controls by these arrogant bureaucrats to be enforced at the point of a gun on a guilty until proven innocent basis.
    If you still believe that the bureaucrat has our best interest at heart, consider the following quote from one of history’s earliest Progressives (tyrants):
    “If the government is to tell big business men how to run their business, then don’t you see that big business men have to get closer to the government even than they are now? Don’t you see that they must capture the government, in order not to be restrained too much by it? Must capture the government? They have already captured it.”
    The quote is from an early wannabe tyrant, Woodrow Wilson in 1913. Since then each encroachment on our individual liberty has caused problems that have been used to justify more tyranny.
    Your position should be to defend our freedom, not increase the power and oppression perpetrated by the “Fourth Branch of Government” the bureaucracy.

  • I guess I’m one of those “Glenn Beck Crazies” – I’ve been called worse.
    Hey, do me a favor. Point our the part of the Constitution that allows the FDA to even exist. I can’t seem to find the article or amendment.
    If you want to play the “commerce clause” card, OK. That is limited to interstate commerce. If a farm wanted to sell across state lines, the feds could regulate it. But intrastate jurisdiction is for the individual states, and them alone.
    I know, I know, we “crazy Constitutionalists” getting in the way of a big happy bureaucracy.

  • The Victory Gardens of WWII would be exempt under the current regulations. It would benefit you to read up on the subject at hand rather than applying generic philosophies to a real world situation.

  • jmunsell

    More trees die from internal damage, i.e., termites, than from external forces such as woodpeckers. Too many organizations (Elks Club, churches, etc) have split because of internal strife. Some of those Elks members, and church goers, never go back, to the detriment of all. All contributors to this blog share the same focus, which is food safety. None of us agree on the precise methods to pursue to accomplish the focus however. Therefore, it is to the advantage of public health if we continue to focus on areas in which we can agree, tactfully state our positions, and agree to diplomatically disagree on some particulars, such as S. 510. Why do I state this?
    Discussion of S. 510 has degenerated into vitriolics, in which both sides have resorted to name calling, and classifying their opponents as idiots, foolish, and all sorts of denigrating adjectives. Unfortunate. United we stand, divided we fall.
    American voters have become disgruntled, disenchanted, disillusioned, and throughly disgusted with our 2-party system which has created a polarized America, paralyzed in legislative gridlock. Whatever happened to the gentlemen legislators of the past, such as Mike Mansfield and Gerald Ford, to name but two? These men displayed consistent respect for all others, and successfully worked both sides of the aisle to build effective coalitions for America’s betterment. Since this style legislator is becoming a thing of the past, voters are increasingly rejecting both parties, spawning new groups such as the Tea Party, whose members by the way are intelligent. And, the references to Tea Party statements in this blog are NOT shared by all Tea Party members, so should not be used to define the party’s beliefs. Our 2-party system likewise suffers from inane statements, such as Nancy Pelosi’s statement about the National Health Insurance legislation “Let’s pass it, so we can read what is in it”. Inappropriate statements prosper on both sides of the aisle.
    Conclusion: we all support Food Safety, albeit in different ways. Let’s start treating each other with respect, absent name calling. Look at the variety of excellent blogs on Food Safety News and the Marler Blog covering S. 510: you’ll be shocked at the way we dismiss the opposition! Why? Simply because some folks have the audacity to disagree with our personal beliefs. We must preserve the existence of our Food Safety Club, but we can only do so by maintaining unity, which is accomplished via treating others with respect.
    Lastly: one of these blogs on S. 510 in recent weeks addressed the gov’s promise that the bill would NOT constitute an unworkable financial drain on small businesses. Ironic, because I remember USDA/FSIS making the identical promise to small plants prior to HACCP’s advent. Talk about an intentional Bait & Switch! I am absolutely STUPID, a FUNCTIONAL ILLITERATE, because I fell for for this agency ploy. Let’s don’t fall for such a feint again.
    John Munsell

  • JMC

    How many agree it is time to replace the FDA……….?

  • J Bitetto

    I wish these conversations could be had with more rational behavior from all sides involved. As someone who sees both side, I find it upsetting to read “It is time to stop the conspiracy theories and grow up.” How do you have such faith in this system? Conspiracy theories aren’t just made up crazy stories. I think we could all come up with a few examples of corruptions – some which have been uncovered and others that have not. Either way, corruption certainly exists. I find it hard to live in society today since the reality is this country barely has control over itself. We are spinning and spinning – where will we land? I think we all have to unite despite our differences to have clean and safe food. I think we have to see each other for our commonalities, instead of our separative groups. I wish we could turn to government and have them fix the problem – I’m afraid that will not happen. We lack the separation of big corporations and government for that to ever occur. Unite! And spend every dollar wisely. We have more power than we allow ourselves to believe.

  • States should not pick up the slack.
    Let’s say Ohio(my state) makes it’s own regulations to mind the gap left by the tester amendment. A small operation near Cincinnati may find Kentucky more lax and move across the river. These types of regulations are better off in the hands of the feds so everyone has the same regulations. I don’t think small farms should be exempt because I’m smart and know about food microbiology and food safety. Food borne illness preys on the weak. Weak immune systems and weak businesses are at a bigger risk. Smaller operations usually have more manual labor/less automation, which introduces more chances for contamination to occur, while larger operations are usually much better equipped to test for and prevent food borne illness.

  • John Munsell

    More trees die from internal damage, i.e., termites, than from external forces such as woodpeckers. Too many organizations (Elks Club, churches, etc) have split because of internal strife. Some of those Elks members, and church goers, never go back, to the detriment of all. All contributors to this blog share the same focus, which is food safety. None of us agree on the precise methods to pursue to accomplish the focus however. Therefore, it is to the advantage of public health if we continue to focus on areas in which we can agree, tactfully state our positions, and agree to diplomatically disagree on some particulars, such as S. 510. Why do I state this?
    Discussion of S. 510 has degenerated into vitriolics, in which both sides have resorted to name calling, and classifying their opponents as idiots, foolish, and all sorts of denigrating adjectives. Unfortunate. United we stand, divided we fall.
    American voters have become disgruntled, disenchanted, disillusioned, and throughly disgusted with our 2-party system which has created a polarized America, paralyzed in legislative gridlock. Whatever happened to the gentlemen legislators of the past, such as Mike Mansfield and Gerald Ford, to name but two? These men displayed consistent respect for all others, and successfully worked both sides of the aisle to build effective coalitions for America’s betterment. Since this style legislator is becoming a thing of the past, voters are increasingly rejecting both parties, spawning new groups such as the Tea Party, whose members by the way are intelligent. And, the references to Tea Party statements in this blog are NOT shared by all Tea Party members, so should not be used to define the party’s beliefs. Our 2-party system likewise suffers from inane statements, such as Nancy Pelosi’s statement about the National Health Insurance legislation “Let’s pass it, so we can read what is in it”. Inappropriate statements prosper on both sides of the aisle.
    Conclusion: we all support Food Safety, albeit in different ways. Let’s start treating each other with respect, absent name calling. Look at the variety of excellent blogs on Food Safety News and the Marler Blog covering S. 510: you’ll be shocked at the way we dismiss the opposition! Why? Simply because some folks have the audacity to disagree with our personal beliefs. We must preserve the existence of our Food Safety Club, but we can only do so by maintaining unity, which is accomplished via treating others with respect.
    Lastly: one of these blogs on S. 510 in recent weeks addressed the gov’s promise that the bill would NOT constitute an unworkable financial drain on small businesses. Ironic, because I remember USDA/FSIS making the identical promise to small plants prior to HACCP’s advent. Talk about an intentional Bait & Switch! I am absolutely STUPID, a FUNCTIONAL ILLITERATE, because I fell for for this agency ploy. Let’s don’t fall for such a feint again.
    John Munsell

  • Jessica

    My take on the Food Safety Bill:
    the bill would give the regulators the power to actually enforce existing food safety laws and be a good thing in general. Never perfect, but better than status quo. Industry liked the bill because it applied to small farms; pass or fail then, the benefits to industry would outweigh any potential costs. If the bill passed, they would take their lumps because the new policies would bury small local farmers in bueracracy i.e. eliminate competition. However, the bill would get so much negative reaction from organic and local farmers, backyard gardeners, seed savers, and small government enthusiasts that it would likely not pass anyway. Win-win for industry.
    The Tester amendment changes that dynamic. Now industry is quietly pulling their support. Enough to make senators vote against, but not loud enough to alert any media coverage about this bill’s potential benefit to public safety. Currently, nearly all hard-to-find coverage of this bill is about making backyard gardens illegal. In the unlikely event that anyone in the general public has heard of this bill to be accurately informed. It took me hours of searching to find the nugget of thouroughness that is this blog.

  • Reading the comments, I just found out where all the labels have gone! How I wish we could get them onto the GMO products…
    Bill, you rock. You just can’t help some folks. Bill Marler, FARFA, Grist–I’ve been trying to promote these factual sources for S.510. The folks who want to get it right are appreciative.

  • Jon

    I’m sorry, but all of this seems beside the point, i.e. what is the great need we are supposed to be addressing here?
    We have the safest food in the world (in terms of infectious diseases). Most food borne illness in the US is the result of poor preparation and handling at the point of consumption. Additionally, do you really believe that a Federal Bureau is going to be able to act quickly enough to 1) determine that a problem exists 2)stop the food distribution before it is consumed, or that it will be able to do that any better with this bill than it does now with current regulatory oversight? I spoke to a former FDA employee who assured me that almost all tainted food is consumed before the end of regulatory reaction time. If you think that more oversight of food production is required, then you are looking in the wrong place for your food safety. Eggs will still emerge from chicken’s cloacas, for example, no matter how many bureaucrats are standing around. Just stop buying so much factory produced food and prepare the food you consume with adequate sanitary methods. Spare me more Federal Goverment. It is a much greater threat to my quality of life than the American food supply. If you don’t see that you are not thinking (clearly).