On December 8, the House of Representatives passed a Continuing Resolution (CR) H.R.3082. A CR is supposed to provide temporary, stopgap funding for the government while budget bills are worked out. But this CR included the language of the Senate food safety bill—language that will still affect small food producers (organic farms, small farms, mom-and-pop roadside stands, etc.) most of all. It will completely transform the food and farming industries—for the worse.
Putting the text of another bill into a CR is a prime example of the way Congress operates. It is ethically wrong; indeed it is an example of corruption. We saw this kind of slight of hand in the passage of the health reform legislation, and the American public should be fed up with it.
Now this House CR goes back to the Senate, which is expected to pick it up by the middle of next week. The rumor is that instead of dealing with the CR directly, Sen. Daniel Inouye (D-HI) will introduce the Senate’s own omnibus bill (even larger than the CR) that will also contain the food safety language along and who knows what else.
This is a bad bill, on its own or attached to another piece of legislation. We are grateful that the changes we lobbied for have stayed in the bill, including the exemption for supplements from Codex language and the Tester amendment that protects small farms from some of the bill’s provisions. But the bill still gives the FDA much too much control over farming in general and small producers in particular.
Three specific concerns remain, all major:
1. The bill mandates that every registered facility must be inspected by the FDA: high-risk facilities will be inspected initially within the first five years and then every three years thereafter; low-risk facilities, initially within seven years, and then every five. The FDA will need to hire an additional 5,000 employees to do all the inspections. Big companies love this, because the FDA will be so bogged down inspecting all the smaller operations that they won’t have time to focus on the big guys—where the actual food safety problems arise. Food safety legislation should be targeted at the large industrial farms, but, no surprise, this bill does just the opposite.
2. Language in the federal Food, Drug, and Cosmetic Act currently reads:
An officer or qualified employee of the Food and Drug Administration may order the detention, in accordance with this subsection, of any article of food that is found during an inspection, examination, or investigation under this chapter conducted by such officer or qualified employee, if the officer or qualified employee has credible evidence or information indicating that such article presents a threat of serious adverse health consequences or death to humans or animals.
Under this bill, the boldfaced text above would be changed to:
If the officer or qualified employee has reason to believe that such article is adulterated or misbranded.
And remember, as interpreted by the FDA, a food or supplement may be deemed “adulterated” if there have been any record-keeping violations. “Misbranded” can mean that the producer makes a completely true statement about the product but without FDA permission.
So when the FDA is inspecting a facility, if they merely believe an item is misbranded or adulterated—no concrete evidence is required—they can confiscate all of that product. If there is a suspected record-keeping error for a supplement, the entire stock can be taken by the FDA.
3. A company has to be registered to operate. Under this bill, if the FDA finds there to be a reasonable probability that a product may cause serious adverse health consequences or death to humans or animals, the FDA may suspend that facility’s registration, effectively shutting it down. This seems reasonable, but there is only one informal opportunity for companies to reinstate registration, with no opportunity whatsoever to appeal—they are at the mercy of an FDA inspector’s whim. This should not be allowed in America.
Why does all of this matter? Keep in mind the FDA has consistently done Big Pharma’s bidding and has attacked supplement companies and small food producers (such as the cherry and walnut growers). The bill gives the FDA unbridled authority to ratchet things up even further. The FDA needs to focus on large producers, not get its tentacles onto small producers.