Friday, March 20, 2009

HR 875 Food Safety Modernization Act of 2009: Factcheck

Here is the full text of:
HR 875: Food Safety Modernization Act of 2009

I see nothing here that would "make it criminal to grow your own garden." Maybe I missed it. Well, if it's in there, and it becomes law, and the White House goes through with their plans to plant a garden on the South Lawn, Obama will have to take to the airwaves, a la Nixon, and affirm:
"People have got to know whether or not their President is a crook. Well, I'm not a crook."
- Pres. Richard M. Nixon, November 17, 1973, During a televised press conference in which he insisted he did not break any laws.
Here are some facts put together by the nonprofit consumer group Food and Water Watch. (The author is given as Elissar Khalek. Nice job Elissar!)
Here are a few things that HR 875 DOES do:
  • It addresses the most critical flaw in the structure of FDA by splitting it into 2 new agencies –one devoted to food safety and the other devoted to drugs and medical devices.
  • It increases inspection of food processing plants, basing the frequency of inspection on the risk of the product being produced – but it does NOT make plants pay any registration fees or user fees.
  • It does extend food safety agency authority to food production on farms, requiring farms to write a food safety plan and consider the critical points on that farm where food safety problems are likely to occur.
  • It requires imported food to meet the same standards as food produced in the U.S.
Here are a few things that HR 875 does NOT do:
  • It does not cover foods regulated by the USDA (beef, pork, poultry, lamb, catfish.)
  • It does not establish a mandatory animal identification system.
  • It does not regulate backyard gardens.
  • It does not regulate seed.
  • It does not call for new regulations for farmers markets or direct marketing arrangements.
  • It does not apply to food that does not enter interstate commerce (food that is sold across state lines).
  • It does not mandate any specific type of traceability for FDA-regulated foods (the bill does instruct a new food safety agency to improve traceability of foods, but specifically says that recordkeeping can be done electronically or on paper.)
More on Food and Water Watch's site:
Background on H.R. 875
Photo of Backyard Vegetable Garden via Laura (& Garrett)'s Flickr photostream


Anonymous said...

I'm not sure if:
"(14) FOOD PRODUCTION FACILITY- The term ‘food production facility’ means any farm, ranch, orchard, vineyard, aquaculture facility, or confined animal-feeding operation."
would cover a family plot as a farm or not. There is no indication of a limitation based on size, use of the food for sale, or any limitations.

But it does seem that:
"(8) CATEGORY 4 FOOD ESTABLISHMENT- The term ‘category 4 food establishment’ means a food establishment that processes all other categories of food products not described in paragraphs (5) through (7)."
would cover any preserves, as that is clear food processing. There is no indication of exemptions, size, scope, or limitations.

As far as size and scope on the first in the guts of the bill...

"...require each food production facility to have a written food safety plan that describes the likely hazards and preventive controls implemented to address those hazards;

(3) 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;

(5) provide a reasonable period of time for compliance, taking into account the needs of small businesses for additional time to comply;"

It does cover "small businesses". How "small"? It still requires compliance, so a roadside stand will need all the paperwork in order; and if you sell preserves, you have to have a quarterly random inspection (who will pay for that?)...

They will micromanage your "small business" with regards to fertilizer, storage, sorting, etc... in other words, completely out of business.

Bix said...

I think it's great that the proposal is risk-based. It concentrates resources (e.g. inspectors) where they are needed and protects small businesses.

Matt said...

I agree that it's important to protect small businesses and consumers (which is why this bill exists), but if every processor is required to use a central processing facility, it becomes limiting. Here in VT we're lucky to have a nonprofit food processing facility, but in most places, small processors cannot compete with larger processors. Most processing facilities are set up for large-scale processing, and if food processors are required to work in a central facility, then there would be a gap in people able to enter the market.

I do not think the bill says this and many farmer's markets will continue to be less regulated (many people are able to get their kitchen certified for processing up to a certain amount of gross sales).

Anonymous said...

For all you optimists.....I've got a bridge to sell you! Get off your idealistic duffs and wake up to the reality of our world! HR 875 is Monsanto's favorite bill, because it WILL put the small, organic farmer out of business and that farmer is who Monsanto is most afraid of. You say, get out of here! I say, check out the sponsor's sleazeball hubby, who has Monsanto as one of his choice clients. As far as seeds, there are other regs that would combine with the regulations in this bill to fry the independent farmers abilities to deal with their seeds effectively and everything else, if you really spend serious time checking out this bill. Check out some articles on this bill at OpEd and you will see the nefarious hand of Monsanto trying to take away your God given right to eat beautiful organic, locally owned food. If you are still in lala land, then I suggest you start giving time into thinking about the million dollar fines, criminal charges, AND having the farms confiscated (i.e. stolen). If you finally see the light about this and the other bills discussed, such as HR 759, which is called NAIS on steroids, you may want to write to your congressman, and put in your support at the following sights. Please spend a few minutes doing this, if you think it's not really important and that our representatives really care about you EVEN THOUGH they have robbed you, your children and grandchildren blind by burdening all of you with overwhelming debt, than remember this......factory food is yummy and good for you with all the toxic junk in it. Smile when eating your factory food from Monsanto! The company that cares about YOU...............

Anonymous said...

The Farm To Consumer Legal Defense Fund does not support this bill becuase it is too far reaching and too broad in its language. Yes it will effect farmers markets because small farms will not be able to afford to meet all the standards. The food safety efforts need to address food being imported into the U.S. and factory farming. Please wake up and smell the roses while you still can. Even though it does not say Small Farms, Family Farms, Backyard gardens it is so open to interpetation it is scary.....

Angela and Melinda said...

The Organic Consumers Association thinks many people are too quick to see conspiracies in HR 875 and S 425. That's not to say they think the bills are perfect, but simply that they are not as "nefarious" as many believe.

Bix said...

Here you go, Melinda:

"This bill will not just sweep up commercial food operations ... [It] will subject hobby gardeners, home canners, anyone with a few chickens, or anyone who ‘holds, stores, or transports food’ ... to registration, extensive management, and inspection by a huge new bureaucracy, the Food Safety Administration, even if the food items will only be consumed personally."

I consume all my food personally.

Angela and Melinda said...

"I consume all my food personally" :-)

Anonymous said...

There is obfuscating language in this bill designed to confuse and redirect your attention to thinking by implication rather than specification. This is cleverly illustrated using the words "include(s)", "exclude(s)" and custom definitions. So let's take a look at an example.

(a) In General- Any food establishment or foreign food establishment engaged in manufacturing, processing, packing, or holding food for consumption in the United States shall register annually with the Administrator.

Notice that annual registration is limited to a Food Establishment or foreign food establishment. One cannot imply that this extends beyond these two entities as defined in the definitions section and only those that engage in manufacturing, processing, packing or holding food for consumption.

Before I get to what is a Food Establishment or foreign food establishment, let me give you an example of the use of include and typical efforts employed to muddy the waters.

To start with we must recognize that if a word is meant to be understood as having its common meaning, there is no need to define it at all. It is axiomatic that if a word is explicitly defined, it has a restricted meaning. If language such as the term "Fruit" is used and defined as "includes, apples, oranges, and pears", it can only be understood as restricting the definition to those things listed, or no definition would be required; the word "fruit" would be understood to include apples, oranges and pears, as well as all other fruits. If the word "common" is left out of the definition, then the things used in the definition are what establish the class to which belong, and as the word is being deliberately defined, the common meaning of the word must be excluded.

Under the definitions section:


(A) IN GENERAL- The term ‘food establishment’ means 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.

(B) EXCLUSIONS- For the purposes of registration, the term ‘food establishment’ does not include a food production facility as defined in paragraph (14), restaurant, other retail food establishment, nonprofit food establishment in which food is prepared for or served directly to the consumer, or fishing vessel (other than a fishing vessel engaged in processing, as that term is defined in section 123.3 of title 21, Code of Federal Regulations).

(14) FOOD PRODUCTION FACILITY- The term ‘food production facility’ means any farm, ranch, orchard, vineyard, aquaculture facility, or confined animal-feeding operation.

So a Food Establishment is not a farm, ranch, orchard, vineyard, aquaculture facility, confined animal-feeding operation. This is a custom definition, is specific and no other implications can be drawn as meaning something else. Note that farm, ranch .... since not custom defined, have a common definition without exclusion or inclusion. I do not have cites to their common definition.

In addition to the above, a Food Establishment is not a resturant, retail food establishment, nonprofit food establishment or fishing vessel (as limited in definition to section 123.3 of title 21 of CFR). Again, resturant, retail food establishment .... have a common definition without exclusion or inclusion.

There is a specific class of actions as custom defined by 'Process', all of them being Commercial.

(19) PROCESS- The term ‘process’ or ‘processing’ means the commercial slaughter, packing, preparation, or manufacture of food.

Note this means Commercial slaughter, commercial packing, commercial preparation, commercial manufacture of food.

There is another specific class of actions not defined but listed as holds, stores, or transports. Common definitions apply here.

Also, there is a geographical constraint that limits this to any State. What is a State?

(20) STATE- The term ‘State’ means--

(A) a State;

(B) the District of Columbia;

(C) the Commonwealth of Puerto Rico; and

(D) any other territory or possession of the United States.

This is important since we move to the only other entity required to register annually, a foreign food establishment.

(16) FOREIGN FOOD ESTABLISHMENT- The term ‘foreign food establishment’ means any category 1 through 5 food establishment or food production facility located outside the United States that processes or produces food or food ingredients for consumption in the United States.

Look at what has happened here. The Food Establishment custom definition does not apply since the location is specific and "located outside the United States" and does not fall within the confines of a 'State'. Therefore the exclusions of "(14) Food Production Facility" do not apply.

This makes this particular entity far more reaching than the restrictive entity of a "Food Establishment" located in a 'State'.

What does all this mean?

If you do not fall under the custom definition of a "Food Establishment" you are not required to register. If you are not required to register then there is no categorization of you as a Category 1 thru 5, you can't be assigned a registration number, there is no inspection, monitoring, or reporting requirements. This is however not a statement that you are not obligated to practice good health standards.