The Clandestine War Over the Food Safety Modernization Act

Is the day coming when even your home garden will be against the law?

Brian Doherty | April 20, 2009

Critics say that the proposed Food Safety Modernization Act of 2009 (H.R. 875), introduced in early February by Rep. Rosa DeLauro (D-Conn.), will “effectively criminalize organic gardening,” conceivably outlaw “seed banking,” and will serve as part of a concerted Monsanto conspiracy to drive all but corporate agri-business out of the food production racket.

According to the office of Rep. DeLauro, the bill was inspired by a recent wave of contaminated food recalls and is supported by consumer groups both organic and non-organic. The bill should also, if it has the effect of increasing consumer confidence in the food supply promised, be of ultimate benefit to big food production companies whose livelihoods depend on public trust in the food supply.* (Which means that they have every incentive to police themselves, and in the enormous staggering majority of the time they manage to do business without killing or harming their customers.)

The chatter and controversy over the bill has become a pretty big to-do on the Internet, with 344 Technorati hits for an obscure piece of legislation whose major newspaper hits in the Nexis database are fewer than 15—with none from the major national papers. As DeLauro griped to the Huffington Post, the Internet-generated backlash “was substantial and it wasn't just my office...All of my colleagues—I have colleagues who come up to me on both sides of the aisle and they say to me, 'Rosa, what's this about 875?'"

But it’s all bullshit fearmongering, she insisted to HuffPo: "The intent of the bill is to focus on the large, industrial processes such as the peanut processing plant in Georgia that was responsible for the salmonella outbreak that killed nine people...This notion that we're destroying backyard farms is absurd. It's ludicrous."

Most of the anti-875 material floating around annoyingly lacks any reference to specific sections or language of the bill, which won't help curious readers figure out if the alarmists are correct or if the wave of people trying to assure us it’s a perfectly innocuous consumer protection bill are missing—or hiding—something.

It's worth noting that the anti-875ers are saying obviously untrue things in their attempt to raise an alarm. One such falsehood is the notion that the bill (still languishing in committee, with no particular sign that it’s actually going to get anywhere this year) is about to pass with no debate. However, 875's supporters are mostly just asserting that since the bill’s explicit language doesn’t empower the Food Safety Administration (FSA) to undertake specific tasks or impose specific prohibitions, then it’s rank and absurd fearmongering to suggest otherwise.

But that presumption ignores a long history showing what happens when Congress creates regulatory agencies and delegates broad mandates to them. In this case, the FSA’s mandate would encompass both the responsibility and enforcement power to keep our food supply safe by enforcing rigorous scientific standards on every food production facility, which “means any farm, ranch, orchard, vineyard, aquaculture facility, or confined animal-feeding operation.” (Sec. 3, 14.) Restaurants and other entities directly serving prepared food to consumers are explicitly not covered. (Sec. 3, 13(b).

Yet as history shows, many strong actions taken by regulatory agencies were never explicitly laid out in the legislation that created them, including the Clean Water Act’s current expansive definition—backed up by court decisions—of “navigable waters;” the Food and Drug Administration’s regulation of cigarettes as “nicotine delivery devices;” and the Endangered Species Act’s reinvention as a widespread, niggling, and extensive land-use regulation.

As Walter Olson recently pointed out, supporters of the Consumer Product Safety Improvement Act claimed that it was not intended to regulate certain small businesses, yet, lo and behold, that's exactly what the act has done. As detailed in a forthcoming Reason magazine feature by Katherine Mangu-Ward, that law is hobbling small makers of unique toys and sellers of old children’s books in ways entrepreneurs were assured they didn’t have to worry about.

And while it’s obviously an issue of temperament and judgment to believe that it’s dangerous to empower a federal agency to do anything it wants in order to ensure food safety, it’s by no means clear that just because DeLauro says that H.R. 875 is only meant to apply to those engaging in “interstate commerce” that small farmers and organic gardeners will actually fall outside its reach. Remember that the Supreme Court in Wickard v. Filburn (1942) defined growing food on your own land for your own consumption to be regulatable interstate commerce. Similarly, in Section 406, H.R. 875 declares: "In any action to enforce the requirements of the food safety law, the connection with interstate commerce required for jurisdiction shall be presumed to exist.” Rep. DeLauro's office says they are working on language to make the small garden exception more explicit.

While few of the anti-875ers quote chapter and verse, I imagine that what’s scaring them the most—feeling as embattled as some in the organic community do by the specter of agri-business—is this sort of talk from Section 203 (b): “The Administrator shall, upon the basis of best available public health, scientific, and technological data, promulgate regulations to ensure that food establishments carry out their responsibilities under the food safety law….the Administrator shall promulgate regulations that require all food establishments…—(1) to adopt preventive process controls that—(A) reflect the standards and procedures recognized by relevant authoritative bodies; (B) are adequate to protect the public health; ( C) meet relevant regulatory and food safety standards;( D) limit the presence and growth of contaminants in food prepared in a food establishment using the best reasonably available techniques and technologies.”

What if the regulatory bodies—which will be filled, to be sure, with agribiz reps—decide that organic techniques are not the “best reasonably available techniques” that are “adequate to protect the public health” because they don't use certain pest control techniques?

Or how about Section 206 (c) (3), which says that regulations will “include, with respect to growing, harvesting, sorting, and storage operations, minimum standards related to fertilizer use, nutrients, hygiene, packaging, temperature controls, animal encroachment, and water.” It is not inconceivable that the government’s bodies of experts may decide that certain organic practices don’t meet the “minimum standards” they decide are appropriate in things like fertilizer and animal encroachment.

In other words, the feuding 875 community is divided about trusting the future well-meaning of government regulators. Indeed, it's far from clear to anyone with a lick of sense just what an actual FSA would do, which is at least something that both sides seem to believe (though both also believe they are the only side with that lick of sense).

One of the interesting meta-aspects of this story is that it has played out almost entirely in the weirder interstices of the Net, the places where Codex Alimentarius is considered the linchpin of international tyranny. The Huffington Post is the closest thing to a prestige venue that’s given it much play—and yet as Rep. DeLauro complained to them, the Internet debate has had a real effect.

Comments

mmmm Seed Banks|4.20.09 @ 3:34PM|#

Yum!

|4.20.09 @ 3:59PM|#

Man people are crazy. No more backyard gardens! Hah!

Whats next, the CEO of MADD as chairman of NHTSA!

Paul|4.20.09 @ 4:07PM|#

"The intent of the bill[...]"

And without even finishing the article, may I extend a cheery "Fuck you" to all the legislators in Washington. How many times have we been bulldozed by their little horrors, only for the crafter of such-and-such legislation to whine about what the intent of the bill was, as opposed to how it actually ended up?

|4.20.09 @ 4:10PM|#

It may well effect affect the superegos of some Sunday New York Times readers to realize that what they really wanted from the news was little more than what they were supposed to know or think about certain topics in the circles they move in-that they really don't give enough a fuck about abstruse areas of public policy that don't directly effect affect their daily lives to go through the trouble to get to the bottom of things.

Pet peeve fixed.

Vines & Cattle|4.20.09 @ 4:11PM|#

Thank you, thank you, thank you.

I've tried in my own meager way to help this issue get one traction on my own little corner of the net, I'm glad to see the heavy hitters finally give it the attention it deserves.

I did get into the unintended consequences of well meaning legislation with the president of the Institute for Agriculture and Trade Policy over on Mother Jones I made some headway, but he soon resorted back to his "better regulation solves everything" default.

One thing I'd like to see Reason do, ask the well intentioned liberal foodie champions like Michael Pollan their thoughts on legislation like and the proposed National Animal ID System. Do they realize the harm their well meaning laws can cause to their beloved local, organic, hipster food sources?

Justen|4.20.09 @ 4:16PM|#

I loved your intellectual meanderings here (and I swear not in a sarcastic sense). This started out as an article about gardening and evolved into an article about the democratizing effect of information access by way of questioning the wisdom of trusting broad powers to unaccountable authorities and criticizing the news media establishment. Great work man, very amusing. As for the original call of the article, I'll grow illegal produce if I must and enjoy the illegal flavor and nutrition happily. My zucchini? From my cold, dead hands!

Paul|4.20.09 @ 4:19PM|#

Vines and Cattle:

Just flipped to your MoJo link. Interesting stuff. I'll snippet here for the more focussed H&R readers:

The future of food, in other words, will be built from ideas and models that are familiar, relatively simple, and easily distilled into a buying decision: Look for the right label, and you're done.

But that's not the reality. Many of the familiar [organic/local] models don't work well on the scale required to feed billions of people. Or they focus too narrowly on one issue (salad greens that are organic but picked by exploited workers). Or they work only in limited circumstances. (A $4 heirloom tomato is hardly going to save the world.)

Paul|4.20.09 @ 4:23PM|#

My zucchini? From my cold, dead hands!

Sounds like what you need is a second amendment for organic veggies. But only for a valid, sporting purpose and with reasonable regulations, natch.

Valhawk|4.20.09 @ 4:28PM|#

This bill is just the CSPIA of food. I highly recommend reading Overlawyered's coverage of the CSPIA and of the new bill, to get an idea on what it would do to the small time food industry.

Colonel_Angus|4.20.09 @ 4:29PM|#

Soon, police come charging through your door to shoot your dog after using thermal imaging equipment to locate the illegal tomato grow-op in your attic.

|4.20.09 @ 4:32PM|#

Paul, in the future I would advise against using "zucchini" and "sporting purpose" in hte same post.

Unless you mean it that way, of course. NTTAWT.

|4.20.09 @ 4:35PM|#

I'm less worried about what it'll do to small-time gardeners and farmers markets than medium scale operations.

There will probably be exceptions added for farmers markets and local coops, but then there will be huge barriers if any of these people try to expand beyond that. Most of these small scale farmers aren't going to want to deal with the regulations and just will choose not to grow beyond whatever arbitrary limits are imposed.

So we'll have a bunch of hlocal ippie markets and then a few big corporate agriculture companies dominated the mainstream economy, and no mechanisms for anyone to get big enough to threaten their market share.

|4.20.09 @ 4:42PM|#

and no mechanisms for anyone to get big enough to threaten their market share

...which is exactly the point of this legislation.

|4.20.09 @ 5:04PM|#

Likely the execrable DeLauro will define excepted 'small gardens' as those not exceeding 100 sq ft in area and not presenting for harvest any more than 100 lbs of produce/year. Crap, did I just give her an idea?

Vines & Cattle|4.20.09 @ 5:46PM|#

Exactly Hazel, you just created a new niche market for grass beef or organic okra? Sorry, you're now Tyson + Wal Mart in the Fed's eyes.

And that's just how Tyson wants it.

Paul|4.20.09 @ 5:48PM|#

Paul, in the future I would advise against using "zucchini" and "sporting purpose" in hte same post.

Actually, I started my post making reference to Zuchhini and "cold, dead hands", but it wasn't really working, so I veered off the road. However, thanks for the heads up.

Jazz Hands|4.20.09 @ 5:52PM|#

"A $4 heirloom tomato is hardly going to save the world"

Maybe not, but it'll make a damn fine BLT.

|4.20.09 @ 6:18PM|#

Good, maybe if government power start screwing up things liberals like too they'll start understanding our opposition to stateism

Robert|4.20.09 @ 6:44PM|#

So we'll have a bunch of hlocal ippie markets and then a few big corporate agriculture companies dominated the mainstream economy, and no mechanisms for anyone to get big enough to threaten their market share.

Franchise. Each individual o&o biz, following a cookie-cutter plan, would come under the limit, but together they'd rival the big single entities.

I've seen the gen'l phenomenon of which Brian Doherty writes and how information costs (basically the cost of that limited resource, att'n) create leaders for good or ill. In the 1990s a certain FFDCA reform bill was disingenously opposed by a certain grassroots leader who disseminated disinformation about it (it would've had the opposite effect, which you had to go to the trouble of reading it in the context of the statute it was to amend) in order to harness pressure for reform in directions he & some of his followers wanted. Took me a while to analyze the legislation & trace the disinfo thru its conveyors, some of whom were probably innocent and others knowing.

But on the subject of bills like this, sometimes I wonder whether we'd save a lot of wrangling if the whole of gov't consisted of "wise men" of unlimited jurisdiction, with the whole of the law being that whatever is done must be dictated by "common sense". We'd save all the trouble over technicalities, and any law could be overturned based on failure to conform to the judge's common sense. And anyone who contested such matters and lost would be understood as lacking in common sense, and thereby derive a lot of sympathy, while the victors would be understood as on the side of common sense, and thereby derive a lot of sympathy too.

|4.20.09 @ 7:11PM|#

Well, personally, I'd favor a more powerful judicial branch, which is basically the same thing.
Plus a few constitutional amendments to strengthen protections for private property, strengthen the takings clause, and the 10s amendement.

Those three things would probably solve most libertarians problems. Not that any of them is likely. The majority will never vote of an amendment that bars them from seizing the "rich people"'s property whenever they feel like it.

Quiet One|4.20.09 @ 9:28PM|#

FWIW, I posted a blurb about this story in my blog (which just made double digits in unique visitors, yeah!). Click the link on my Reason handle (long time lurker) if there is any interest. As always, great story Brian with some interesting ideas for thought.

|4.20.09 @ 10:37PM|#

The War On Drugs is being expanded into the War On All Things Consumable.

And with Cap and Trade, soon we'll all need permits to fart.

|4.21.09 @ 2:54AM|#

Journalists like to think of themselves as uncovering all the hidden mis-deeds of the powerful, but really they want to be the gate-keepers of this information. They want to know who is comitting the crimes, and be able to dole it out to the public in measured doses, whenever they(the "journalists") see fit.

This is why the newspaper industry is dying, in the age of the internet - they have lost control of this information, and no one wants to pay to read it on paper.

One more thought - the government is now asserting its right to control every aspect of your life, including how you breath, in terms of CO2 emissions. This bill fits nicely into the package of controls on how you live your life. It will be used to make sure that no-one ever does anything un-PC again...

|4.21.09 @ 4:58PM|#

Question: Somewhere, I read that, tucked away in this little gem of a bill proposed by the Monsanto executive's wife, is the government's right to seize any farm property that does not comply with whatever "regulation of the week" is imposed. Can anyone verify this? If true, and, given the accelerated rate of takeover of finance, energy, transportation and housing, it might be worth more general attention that the food supply will be next on the list.

Oh, and rxc - I am going to do my part and only exhale every other day. Gee, I hope my green plants don't die from lack of CO2.

|4.21.09 @ 9:48PM|#

I think this bill has problems once the hippy-types here in Seattle and elsewhere on the left coast realize that it could be applied to farmers' markets.

Sarah Natividad|4.21.09 @ 10:12PM|#

DaveS: "I think this bill has problems once the hippy-types here in Seattle and elsewhere on the left coast realize that it could be applied to farmers' markets."

The problem with that is, the hippy-types all believe it when their favorite statist legislators tell them the law isn't intended for farmers' markets. We have that problem with CPSIA too. The same people who are all for locally produced and upcycled children's items are all convinced these items are to be exempted, because the bill's authors swear on a stack of Bibles that they really didn't intend to write the law they wrote.

The real problem is the disrespect for the rule of law. The law now is supposed to mean not what it says, but what Congress says it says (and since they don't even read it, they can say it says whatever the hell they feel like). It's a frickin' Mad Hatter's Tea Party-- it's all "I say what I mean" and "I mean what I say." Congress doesn't even respect the law enough to let it have any meaning independent of what they think it ought to be, but they expect all of us to bow to their interpretation.

|4.21.09 @ 10:31PM|#

I'm amazed that in the article, and in the comments, there is no mention of the recent furor over the "toy safety" bill and the impact of the regulatory implementation of high cost testing for lead and other substances on small producers of toys.

The legislation was prompted by the lead paint in some Chinese manufactured toys, but the implementation regs could have been described as an act "to make the US toy market safe for Chinese mega-producers". In the end, there was a temporary retreat by the regulatory agency, but don't be surprised if they're back soon with the same junk, once they think the coast is clear of pesky objectors.

No wonder small farmers and gardeners are wary of this legislation that appears to have the potential for the same kind of perverse side effects!

hdbbstephen on Twitter|4.22.09 @ 8:26AM|#

Do a search on Twitter for a massive discussion of this massive govt over-reach http://search.twitter.com/search?max_id=1583876558&page=1&q=hr875

Tim|4.22.09 @ 12:41PM|#

Monsanto is probably the most significant govt-created monopoly since the East India Company. I've wondered why I've seen them defended here on Reason actually. Doesn't seem to make any sense. But anyway, I'm sure they'll somehow be the ones to benefit from this at the expense of small farmers.

|4.26.09 @ 5:48PM|#

What can you expect when an ex CEO of Monsanto runs the FDA? While the so called elected officials in DC give you a dog and pony show, just ask farmers what hovac Monsanto has created with them! It's big take over corp cartels all the way and they've got your officials in THEIR pocket. Don't let them fool you with this bill and DONT LET IT PASS. The reason you're poisoned with food is the lack of proper inspection in so much imported food. It's time Americans grew their own basic foods, isnt it? And they need to follow existing laws, not make more.

|4.26.09 @ 6:05PM|#

how are they going to enforce this? create a virus to wipe out non-patented produce? even if they don't, enforcement will lead to famine in the event of catastrophe, the most likely being crop failure due to overuse of monoculture agriculture methods

these lawmakers have ingested too much lead, they need to die off to let a new generation of lead eaters into public office

|4.27.09 @ 3:15PM|#

This is how it goes. Glabalist agenda per Kissinger logic. "He who controls the food controls the world" Add thirty+ years of chemical biotech control in government. Sprinkle in alot of unknowing superflous such as immigrant and developing countries give them a small amount of power and pay them well. Make them comfortable, ie.Alberto Gonzalez. Then when the shit hits the fan criminalize them. Look out Delauro!!!!

hm|4.27.09 @ 7:45PM|#

"In other words, the feuding 875 community is divided about trusting the future well-meaning of government regulators."

Uh no. The 'war on drugs' was started by "well meaning regulators'

NAZI Germany was FULL of well meaning regulators.

Wicks Cherrycoke|4.28.09 @ 8:42AM|#

I came to this article late. As an attorney who has spent the last quarter century watching federal and state agencies interpret and expand laws in ways that strain credulity, I think the bill's opponents have every reason to fear. Administrative agencies are worse than the legislature in this regard, because they generally avoid public notice and are more easily captured by interested constituencies.

Just one more example: when the Civil Rights Act of 1964 was passed, Congressional supporters assured us that the employment provisions would never, ever, be interpreted to outlaw neutral employment policies that were not intended to be discriminatory, and that mere disparate impact would not be actionable. But within less than a decade, the EEOC and the Courts had decided that neutral employment policies that were not intended to be discriminatory, but which had disparate impact, were indeed unlawful and actionable.