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.