Will food safety legislation make us safe?

Montana farmer and Senator Jon Tester

Small American farmers can breathe a sigh of relief. When they’re not bracing for the worst, that is.

This week, the U.S. Senate passed the Food Safety Modernization Act, the much-awaited reform of the food safety legislation voted in 1938 under President Franklin D. Roosevelt. Each year, 325,000 Americans are unnecessarily sickened and hospitalized from consuming contaminated food; about 5,000 of them die, according to the Centers for Disease Control and Prevention.

The House is expected to rubber-stamp the text with no delay after voting its own version of the bill over a year ago. The legislation is designed to give the Food and Drug Administration (FDA), an agency of the Human and Health Services Department, increased resources and authority to better control food producers, thus reducing the risks of food-borne illness outbreaks. The anticipated budget for its implementation is 1.4 billion dollars.

Passions about this piece of legislation have been running wild for months. Small farmers denounced the unfairness and crushing burden of one regulatory regime applied to family farms and industrial producers alike. After all, the latter bear the brunt of food-borne illness outbreaks due to the sheer size of their production volumes and supply chain. Meanwhile, the recent introduction of an amendment by Senators Jon Tester (in the picture) and Kay Hagan, designed to exempt small producers from the new regulation, unleashed a storm of anger and protests among the big guys of the American food industry.

The Tester-Hagan Amendment defines small farms and producers as operations with less than 500,000 dollars in annual sales, who sell more than 50% of their production directly to consumers. Their sales must be within 275 miles of their location, within state borders, and they must comply with state and local food laws. If contamination is traced to them, the exemption will be void.

In the end, both bill and amendment passed by 73 to 25. Local food and sustainable farming advocates like author Michael Pollan and the National Sustainable Agriculture Coalition applauded the decision.

Dennis Stoltzfoos, owner of Full Circle Farm in Florida. He is one of many farmers harassed by the FDA for selling raw-milk.

This is not to say that the debate over the Federal oversight of small farmers is over in America. “There is a growing movement in support of food production freedom and this vote is not going to stop it”, Deborah Stockton, executive director of the National Independent Consumers and Farmers Association, told me.

Her beef? “The exemption as defined in the Tester-Hagan Amendment is meaningless”, she said. “All decisions are left to the discretionary power of the Secretary of Health and Human Services. The stage has been set for the FDA to increase its oversight with no due process and we won’t be able to do anything about it”, she explained.

I decided to take a close look at the bill. I couldn’t help but notice that most of the decisions and actions thereby authorized are left for the “Secretary” to “determine“. Including the withdrawal of the exemption granted through the Tester-Hagan Amendment (emphasis added) :

22 (A) IN GENERAL. – In the event of an ac

23 tive investigation of a foodborne illness out

24 break that is directly linked to a qualified facil

25 ity subject to an exemption under this sub

7 KER10341 S.L.C.

1 section, or if the Secretary determines that it is

2 necessary to protect the public health and pre

3 vent or mitigate a foodborne illness outbreak

4 based on conduct or conditions associated with

5 a qualified facility that are material to the safe

6 ty of the food manufactured, processed, packed,

7 or held at such facility, the Secretary may with

8 draw the exemption provided to such facility

9 under this subsection.

I was also struck by the lack of clarity in the language of the bill. Ample room is purposefully left to arbitrary decision-making. For instance, the 1938 text about the Administrative Detention of Food was amended to replace “credible evidence” by “reason to believe”.

Original text for reference:

SEC. 304. [21 USC #334]

(h) Administrative detention of foods.

(1) Detention authority.

(A) In general. 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 Act 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.

Similarly, the section on “Mandatory Recall Authority” invokes no other requirement for action than “reasonable probability”.

If Deborah Stockton and others sound alarmist, it is because the past actions of the FDA against small farmers have given them ample reason for concern. The bottom-line is that they harbor a profound distrust of the agency. The nomination, this year, of ex-Monsanto vice president of public policy Michael Taylor as the senior advisor to the FDA Commissioner on food safety issues was not received as a reassuring piece of news. A legislation that, seemingly, gives the agency free rein is not bound to make small farmers’ advocates feel comfortable about the way the law will be put to use. One worry, among others, is the stated intent of the FDA to put an end to the raw-milk market in the United States. The harassment of dairy farms by the agency has become routine.

“Even the National Sustainable Agriculture Coalition knows this. But I know for a fact that they’re too scared of any potential backlash to take position publicly against this law”, said Deborah Stockton.

In fine, the opponents to the Food Safety Modernization Act make a strong argument: why rush to broaden the FDA’s oversight authority through a legislative reform when the agency has clearly failed to honor its responsibility until now, as demonstrated for instance by the recent unfortunate need for a giant egg recall?

Last but not least, the ultimate irony is not lost on everyone : for all the drama it has generated, the Food Safety Modernization Act does nothing to address health frights linked to the highest-risk products that are industrial meat and poultry, since these are not under the authority of the FDA but of the U.S. Department of Agriculture (USDA). It’s going to be business as usual for American biggest commodity food producers.

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