Thursday, March 12, 2009

HR 875

This is worth the read, because it contains a great analysis of this bill, now in the Agriculture Committee. Yesterday, I tried to listen to testimony about this bill via my computor at work. It was plain that this bill is going to be railroaded down American's throats without any input from consumers or small farms, ranchers, or gardeners.

When I posted yesterday that we are at the end of the food chain, I am pretty sure most readers thought "yeah, and your point is?"

Here is the point:

- Analysis of H.R. 875 -
A bill introduced in the U.S. House of Representatives

On February 4, 2009, Rep. Rosa DeLauro (D-CT) dropped a bill (H.R. 875) in the House that, if passed, will radically change the lives of most Americans. I have never read a bill so blatantly anti-American, as anathema to freedom and liberty, and so blatantly evil. This bill has 39 co-sponsors, all Democrats; their names should live in infamy:
Rep Berkley, Shelley [NV-1]; Rep Bishop, Sanford D., Jr. [GA-2]; Rep Bishop, Timothy H. [NY-1]; Rep Carson, Andre [IN-7]; Rep Castor, Kathy [FL-11]; Rep Courtney, Joe [CT-2]; Rep DeFazio, Peter A. [OR-4]; Rep DeGette, Diana [CO-1]; Rep Engel, Eliot L. [NY-17]; Rep Eshoo, Anna G. [CA-14]; Rep Farr, Sam [CA-17]; Rep Filner, Bob [CA-51]; Rep Giffords, Gabrielle [AZ-8]; Rep Grijalva, Raul M. [AZ-7]; Rep Hall, John J. [NY-19]; Rep Hinchey, Maurice D. [NY-22]; Rep Hirono, Mazie K. [HI-2]; Rep Johnson, Eddie Bernice [TX-30]; Rep Kaptur, Marcy [OH-9]; Rep Lee, Barbara [CA-9]; Rep Lowey, Nita M. [NY-18]; Rep McCollum, Betty [MN-4]; Rep McDermott, Jim [WA-7]; Rep McGovern, James P. [MA-3]; Rep Moore, Gwen [WI-4]; Rep Murphy, Christopher S. [CT-5]; Rep Nadler, Jerrold [NY-8]; Rep Norton, Eleanor Holmes [DC]; Rep Pingree, Chellie [ME-1]; Rep Ryan, Tim [OH-17]; Rep Sanchez, Linda T. [CA-39]; Rep Schakowsky, Janice D. [IL-9]; Rep Schauer, Mark H. [MI-7]; Rep Slaughter, Louise McIntosh [NY-28]; Rep Stark, Fortney Pete [CA-13]; Rep Sutton, Betty [OH-13]; Rep Tierney, John F. [MA-6]; Rep Wasserman Schultz, Debbie [FL-20]; and Rep Wexler, Robert [FL-19].

H.R. 875, the so-called Food Safety Modernization Act of 2009 (FSMA), sounds innocent enough at first blush. This roughly50-page bill would establish the Food Safety Administration within the Department of Health and Human Services, to “protect the public health by preventing food-borne illness, ensuring the safety of food, improving research on contaminants leading to food-borne illness, and improving security of food from intentional contamination, and for other purposes.” What could be wrong with that? Just about everything, as I will illustrate. What follows, though, is not meant to be an exhaustive analysis of this bill. I will only cover what drew my attention, and attendant questions. You may see things I’ve missed, react differently, or have different questions, so I strongly suggest you read the bill for yourself ( and then widely share your impressions and questions.

HR 875 talks about the United States’ failure to protect this nation’s food supply, whether produced here, imported, or exported, placing a “burden” on international trade. It adjures us to protect “all the people” in the United States, and complains that the Food and Drug Administration (FDA) is hamstrung from that duty by an “antiquated law,” the Federal Food, Drug, and Cosmetic Act of 1938.

The FSMA establishes a huge new bureaucracy, the Food Safety Administration (Sec. 2), transferring functions, personnel and assets from the Department of Health and Human Services, and the Department of Commerce (Sec. 102). It establishes an Administrator (Food Czar), and renames the FDA as the Federal Drug and Device Administration (does the FDA want to regulate alternative health modalities?).

Section 3 (10) defines a “contaminant” as “a bacterium, chemical, natural toxin or manufactured toxicant, virus, parasite, prion, physical hazard (?), or other human pathogen that when found on or in food can cause human illness, injury or death.” What about food allergies?

Section 3 (12) defines “food” as “a product intended to be used for food or drink for a human or an animal and components thereof.”

Section 3 (13) defines a “food establishment” as (A) “a slaughterhouse (except those regulated under the Federal Meat Inspection Act or the Poultry Products Inspection Act), factory, warehouse, or facility owned or operated by a person located in any State that processes food or a facility that holds, stores, or transports food or food ingredients.” Does a farmer “process” eggs from chickens? YES, IF he/she puts the eggs into a container! (19) defines “process” or “processing” as “the commercial slaughter, packing, preparation, or manufacture of food.”

And Section 3 (14) defines a “food production facility” as “any farm, ranch, orchard, vineyard, aquaculture facility, or confined animal-feeding operation.”

Section 202 requires the registration of “food establishments” (domestic and foreign) “engaged in manufacturing, processing, packing, or holding food for consumption in the United States” within 90 days of the enactment of the Act, requiring all use an “electronic portal.” The Administrator shall then “assign a registration number” to each.

Section 203 states the Administrator shall promulgate regulations “not later than 1 year after the date of this Act,” so Congress will have no opportunity to read and comment on those regulations before voting on this bill.

Food establishments will be required to adopt preventive process controls, including implementing recordkeeping and labeling of all food and food ingredients to facilitate their identification and traceability, including instructions for handling and preparation for consumption. This might sound rather reasonable…until you remember the definition of a “food establishment” above.

Immensely telling of how seriously this bill actually takes “food safety,” though, is Section 204 (2) (C), which promises the Administrator will identify the “5 most significant (food) contaminants, and “not later than 3 years after a contaminant is so identified, the Administrator shall promulgate a performance standard...” Gee whiz, what’s the rush?

Perhaps the Administrator’s promulgation timetable has little to do with acting quickly and decisively to protect U.S. citizens (or even all the people in the U.S.) and much to do with the World Health Organization’s stated desire in a 2004 report entitled “FOODBORNE DISEASE MONITORING AND SURVEILLANCE SYSTEMS” that “the objectives and strategies (of food borne disease surveillance systems) established should be acceptable to all member countries (,” which doubtless would take time. Perhaps it is because “studies linking pathogens in food to the disease in humans would help quantify the risk of food borne diseases.” In other words, the WHO cannot prove a significant problem exists in the United States.

Performance standards (Sec. 204 [3] [c] [1]) may include “zero tolerances,” and “in the absence of data to support a performance standard…standard that define required performance on the basis of reliable information.”
Following inspection of a food establishment, the Administrator shall:
· detain, seize, or condemn food…;
· order a recall of food…;
· increase the inspection frequency…;
· withdraw the mark of inspection…; or
· take other appropriate enforcement action…including withdrawal of registration, without which “any farm, ranch, orchard,” etc., may not operate.

Section 205 states the Administrator’s inspection mandates go into effect 2 years after the date of enactment of the Act that detailed records must be created and maintained, and that the Administrator’s authority to share our “data” with “other governmental authorities” is not limited by the Act.

Section 206 gives the Administrator authority to “visit and inspect food production facilities in the United States and in foreign countries…, set good practice standards to protect the public and animal health, conduct monitoring and surveillance of animals, plants, products, or the environment (does this include your HOME?), and collect and maintain information “relevant to public health and farm practices.”

Each food production facility will be required to have a written food safety plan, including “standards related to fertilizer use, nutrients, hygiene, packaging, temperature controls, animal encroachment, (water, and) minimum standards related to the animal’s health, feed, and environment…”

Section 207 says a “Food Borne Illness Outbreak” exists with the occurrence of “2 or more cases of a similar illness resulting from the ingestion of a common food.”

Section 208 promises “(n)ot later than 2 years after the date of the enactment of this Act” imported food products shall be certified safe “by the accredited foreign government (think CHINA!) or by an accredited certifying agent…” Reassuringly, “(b)eginning not later than 5 years after the date of the enactment of this Act, food from (foreign) food establishments that is not certified by an accredited entity…shall not enter the United States (unless the U.S. tests it at a designated testing lab). Again, what’s the rush?

Section 210 establishes “traceback requirements” which will “enable the Administrator to retrieve the history, use, and location of an article of food through all stages of its production, processing, and distribution.”

Notably, Sec. 210 (d) (2) (D) suggests the Administrator establish the “national traceability system…consistent with” such existing laws as The National Animal Identification System. (Blogger in-reminder!!! NAIS is *not* the law-yet!!!)

Section 301 states the Administrator shall conduct an assessment of health hazards; such analysis “may include---(A) a comparison of the safety of commercial processing with the health hazards associated with food that is harvested for recreational or subsistence purposes and prepared noncommercially” (think pursuits such as mushroom or wild berry gathering, or home canning).

Section 307 states “(n)ot later than one year after the date of the enactment of this Act, the Comptroller General of the United States shall complete a study on the Federal resources being dedicated to foodborne illness and food safety research and submit a report on the results of such study to the Congress. Again, Congress will have no idea what it would be authorizing when the vote is taken.

“Prohibited Acts” listed in Section 401 include:
· Failure of a food establishment to register, or operating without a valid registration;
· Refusing to permit access and copying of a record;
· Failure to establish or maintain any required record or report;
· Refusal to permit entry to or inspection of a food establishment;
· Failure to comply with a provision, regulation, or order;
· Slaughter of an animal capable for use in whole or in part as human food at a food establishment processing any food for commerce, except in compliance…;
· Transfer of food in violation of an administrative detention order;
· Or any other violation of the food safety law.

Section 402 advises that the Administrator may “administratively detain and seize” any food…for a “reasonable period, not to exceed 20 days (or possibly) 30 days, with provision for an “expedited basis with respect to perishable food.” And you guessed it; such food might have to be “labeled or marked as detained,” and “must be removed to a secure facility, if appropriate.” Further, “(a)ny food condemned shall be destroyed under the supervision of the Administrator.”

Section 405, Civil and Criminal Penalties, is chilling. Sec. 405 (a) (1) (A) states, “(a)ny person that commits an act that violates the food safety law…may be assessed a civil penalty…of not more than $1,000,000 for each such act.” And under (B) (e)ach act…and each day during which that act continues shall be considered a separate offense.”

Sec. 405 (b) advises such a food safety “offense resulting in serious illness” mandates “the person committing the violation shall be imprisoned for not more than 5 years, fined…or both.” (c) advises an “offense resulting in death” mandates “the person committing the violation shall be imprisoned for not more than 10 years, fined…or both.”

Sec. 405 (c) (1) states “(a)n order assessing a civil penalty against a person…shall be a final order unless the person--(A) not later than 30 days after the effective date of the order, files a petition for judicial review of the order in the United States court of appeals…and (B) simultaneously serves a copy of the petition by certified mail to the Administrator.” Seems to me anyone unable to retain counsel well inside of 30 days is in a serious situation.

Under Sec. 405 (c) (3), “(t)he findings of the Administrator relating to the order shall be set aside only if found to be unsupported by substantial evidence on the record as a whole.” And, (d) (2) states, “(t)he validity and appropriateness of the order of the Administrator assessing the civil penalty shall not be subject to judicial review.”

And if you were by now thinking this is about as outrageous as this bill can be, you’d be very wrong. Section 406 clearly states, “(i)n any action to enforce the requirements of the food safety law, the connection with interstate commerce required for jurisdiction SHALL BE PRESUMED TO EXIST.”

Then there’s Section 409, permitting Citizen Civil Actions against anyone “that violates a regulation…order, or other action of the Administrator to ensure the safety of food…”

And again in Section 501 we find that “(n)ot later than 180 days after the enactment of this Act, the President shall transmit to the appropriate congressional committees a reorganization plan regarding the…transfer of agencies, personnel, assets, and obligations…pursuant to this Act (and) (a)ny consolidation, reorganization, or streamlining of agencies transferred to the Administration pursuant to this Act.” So, again Congress will have no specific information of the planned reorganization at the time the vote!

Now, for those who noticed, and questioned, why “foodborne” is spelled as if we reside “on the Continent,” and why the United States government is attempting to implement a “solution” wanting for a “problem” - you guessed it - “Foodborne Disease Monitoring and Surveillance Systems” are a priority with the World Health Organization, to which our national government has committed US through its membership.

The 53rd World Health Assembly in the year 2000 adopted a resolution to recognize food safety as an essential public health function and called for the development of a Global Strategy for reduction of the burden of food borne diseases. The resolution (WHA 53.15) encouraged member states “to implement and keep national, and when appropriate, regional mechanisms for food borne diseases surveillance.” In 2002, WHO published a document, “WHO Global Strategy for Food Safety: safer food for better health” to address this issue.

Under the World Trade Organization (WTO) Agreement on the Application of Sanitary and Phytosanitary Measures (SPS), WTO Member Countries, including the United States, should ensure that their sanitary or Phytosanitary measures are based on a scientific risk assessment, taking into account the risk assessment techniques developed by the relevant international organizations. In this respect, Codex, which is the international reference for food safety under the SPS Agreement, has adopted the Working Principles for Risk Analysis for Application in the Framework of the Codex Alimentarius, whilst Codex is also developing working principles on risk analysis intended for application by governments. Pure, unadulterated Agenda 21, anyone?
The U.S. is already actively engaged in the PulseNet, FoodNet, Outbreak Alert!, and Healthy People 2010 components of this global effort. And then there is Healthy People 2020, in development.

Apparently our national government believes “(f)ood borne diseases are an important public health problem as it not only affects human health, but also has a significant impact on economic and trade issues. The global changes affecting population growth, lifestyle, international food trade, food production and processing, agricultural and animal husbandry practices and antimicrobial resistance have posed a threat to the emergence of food borne diseases.”

All this, and yet the WHO admits in their 2004 report cited above, “(t)he true dimension of the burden of food borne diseases is still unknown as a result of poor documentation and absence of reliable data, thus limiting our understanding of its public health importance and impeding our efforts to secure the resources and support necessary for effective control of food borne diseases.”

In the year 1900 two of the ten leading causes of death could have been food related (diarrhea/enteritis, liver disease). But the twin leading causes were Pneumonia, followed closely by Tuberculosis. In 2002, WHO listed the leading cause of death in the U.S. ( as Ischaemic heart disease, killing ~ 514,000 people. The second greatest cause was Cerebrovascular disease (stroke), killing ~ 163,000. None of the top ten causes bore any relation to foodborne illness. I believe this ranking is still correct.

In apparent support of all this command and control, the Centers for Disease Control and Prevention (CDC) reports its estimate that every year in the United States sees approximately 76 million cases of foodborne illness (, with 325,000 hospitalizations and 5,000 deaths (which equates to one death out of every 15,200 who become ill). Admittedly those 5,000 deaths are significant, and devastating to those involved. But this figure must be put in perspective; we must consider the larger picture.
Perhaps too little known is the fact that “iatrogenic events” - medical errors - kill almost 800,000 each year in the U.S. ( That’s the equivalent of six jumbo jets falling out the sky each and every day, and truth be told, as few as 5% and no more than 20% of these deaths are ever reported.

Clearly deaths resulting from foodborne disease are exponentially lower than these other major causes. This begs an obvious question: If Congress is so very concerned about our health, why haven’t they felt inclined to tackle the much more significant incidence of iatrogenic deaths in this nation? Hmmm?

One need only consider the Healthy People 2010 goals ( to understand the true (A)genda.
H.R. 875 has been assigned to the Committee on Energy and Commerce, and the Committee on Agriculture. THIS BILL NEEDS TO DIE IN COMMITTEE!!!

Blogger back in: You eat, I eat, we all must eat. Do you *really* want to hand total control of your food to the government? Think about it, and get back to me.

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