Are small farmers doomed? 

The Farm-to-Consumer Legal Defense Fund recently reported the unveiling of the Food Safety Modernization Act of 2009 (H.R. 875) on February 4, 2009, by Representive Rosa DeLauro, Democrat from Connecticut, to both the House Committee on Energy and Commerce and the House Committee on Agriculture.

Cosponsored by 36 other Congressmen, all Democrats, H.R. 875 would essentially transfer all state control over food regulation to the Food Safety Administration (FSA), a newly-established federal bureaucracy to be created within the Department of Health and Human Services (DHHS).

Its bill could lead to the elimination of all independent, family farms as well as all organic farming operations due to overbearing federal regulations one-sidedly determined by the FSA in favor of corporate factory farms.

Representative DeLauro and her husband Stan Greenberg are friends of the Obama administration. They gave Obama Chief of Staff Rahm Emanuel free rent for several years.

One of Greenberg’s clients is biotech giant Monsanto, which has created and promoted genetically altered foodstuffs for over a decade.

HR 875 represents a tremendous expansion of federal power, particularly the power to regulate intrastate commerce. While the proposed legislation tries to address the many problems of the industrial food system, the impact on small farms if the bill becomes law would be substantial and not for the better.

HR 875 is a major threat to sustainable farming and the local food movement.

HR 875 charges the administrator of FSA with developing a national food safety program to protect the public health. In carrying out the program, the administrator must “adopt and implement a national system for regular unannounced inspection of food establishments.”

Under the bill, farms are designated as ‘food production facilities’.

A “food establishment”, according to the bill, means “a slaughterhouse, a 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.”

The FSA is given the power by the bill to visit and inspect them to determine that they are operating in compliance with the food safety law under HR 875 ‘food safety law.’

The agency also would have the power to have access to and copy all records maintained by farms in order to be able to (1) determine whether the food is contaminated, adulterated or otherwise not in compliance with the food safety law or (2) track the food in commerce.

FSA is charged with establishing a national traceability system that requires farmers to keep records that enable FSA to track “the history, use, and location of an item of food”. Farmers selling direct to consumers would have to make their customer list available to federal inspectors.

The food traceability records are not the only written documentation farmers are to supply FSA under the terms of the bill. Each food production facility must have a written food safety plan that describes the likely hazards and preventive controls implemented to address those hazards”.

Farmers will be required to do the following in developing a plan for their farming operation:

• Conduct a hazard analysis-a list the pathogens that could be present in the farming operation.
• Determine critical control points where pathogens would most likely be present or could be introduced.
• Establish critical limits.
• Establish monitoring procedures.
• Establish corrective actions.
• Establish verification procedures.
• Establish record-keeping and documentation procedures.

FSA’s rulemaking authority includes extensive power to regulate farming practices as well.

The agency would issue regulations that establish ”minimum standards related to fertilizer use, nutrients, hygiene, packaging, temperature controls, animal encroachment, and water” with respect to “growing, harvesting, sorting, and storage operations”; and, “with respect to animals raised for food.’

The regulations are to establish “minimum standards related to the animal’s health, feed, and environment which bear on the safety of food for human consumption”.

The federal government’s expanded power to regulate commerce under the bill would place the legality of the sale or other distribution of raw milk in intrastate commerce in jeopardy. The FDA has long wanted a complete ban on the sale of raw milk.

The agency believes that raw milk should not be consumed by anyone at any time for any reason and does not consider this subject to be debatable refusing to send representatives to any conference concerning the safety of raw milk when they know anyone with an opposing viewpoint will be present.

In the event the FSA does not issue a regulation establishing a ban, raw milk producers can expect regular, unannounced visits from inspectors.

The inspector paying a visit to the raw milk producer will have had training based on a curriculum developed by the Association of Food and Drug Officials (AFDO). AFDO’s position on raw milk is that all milk should be pasteurized.

The FSA's power to enforce the food safety law is considerable. The administrator can assess civil penalties of up to one million dollars for each violation. Each day during which the violation continues is considered a separate offense. The criminal sanctions are severe as well.

If a violation with respect to an adulterated or misbranded food results in serious illness, the perpetrator can be imprisoned for up to five years; if the same results in death, the penalty can be up to ten years.

The FSA has also expanded its authority to seize, detain and condemn food. It would have the power to condemn food without having to resort to the judicial process. This would create every incentive for the agency to levy fines, with all fines collected being deposited in a treasury account.

FSA “may use the funds in the account without further appropriation or fiscal year limitation . . . to carry out enforcement activities under the food safety law”. It could also use the funds in the account “to provide assistance to States to inspect retail commercial food establishments or other food or firms under the jurisdiction of State food safety programs.”

Passage of HR 875 into law will result in a much greater degree of federal control of food production and food regulation in the individual States as well as on a national level. The Feds would control to a much greater degree the inputs farmers can use as well as the products farmers can produce (raw milk).

Unannounced federal inspections of small farms will be the order of the day, reducing the level of protection provided by the Fourth Amendment. There will be little left of the states’ police power to regulate food.

The burdensome requirements the bill imposes on small farms and the intrusive federal control it creates over small farm operations threaten the future viability of sustainable agriculture and the local food movement.

HR 875 has been assigned to both the House Committee on Energy and Commerce and the House Committee on Agriculture.

It needs to be stopped. Anyone who values freedom of food choice and the rights and independence of small farmers should contact their elected representatives and the members of the two committees to ask that they oppose HR 875.