The Clandestine War Over the Food Safety Modernization Act

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

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.

There is more material—some ridiculous, some sensible, some questionable—on the Internet about this one bill than any citizen could possibly care about. While the level of factual and analytical rigor of the material varies widely, all of it is available and searchable.

To put it another way, the H.R. 875 debate is a lively representation of what "journalism" in a post-newspaper age can do for "democracy." Which is something far more important and detailed than just one writer with a million other things on his plate making a few calls and making a decision for you. (Meta-ironies noted.)

Certainly, it's more convenient for a reader to think he's read one 900-word piece in a respected source and therefore understands some public policy topic. The debate over H.R. 875 may well be an example of the rising dominant model of political reporting: contentious fighting among often careless, agenda-driven forces producing all of the information that the truly interested would need to know what they need to know.

It may well effect 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 their daily lives to go through the trouble to get to the bottom of things.

When journalism no longer makes it easy for such people to feel on top of current events—when the thing journalism in a Web world actually makes easy is gaining access to a dizzying variety of information and opinion, not access to presumed-trustworthy predigested conclusions—it won't necessarily be a bad thing. As for H.R. 875, the actual legislation—God forbid you or your elected representatives ever resort to this—is just a fingertip away if you ever want to read it for yourself and reach own conclusions.

Senior Editor Brian Doherty is author of This is Burning Man (BenBella), Radicals for Capitalism (PublicAffairs) and Gun Control on Trial (Cato Institute).

*An earlier version of this piece mistakenly attributed to Rep. DeLauro's office a statement that big food production companies support H.R. 875.