In all the furor over the healthcare bill, another critical piece of legislation has been largely ignored. I put out a warning a few months ago about the efforts to pass legislation applying draconian new regulations to food production and crushing small and organic farmers to the benefit of giant agrobusinesses. What was troubling in the two food regulation bills passed earlier this year (HR875 and HR759) has become truly terrifying now that those bills have been combined into a new and more comprehensive successor, the Food Safety Enhancement Act of 2009 (HR2749).
This bill has now been quickly rammed through the House of Representatives. When it failed to get the required two-thirds majority on Thursday a vote was taken to set aside the rules and it was passed with a bare majority. Democrat support was very strong, but most Republicans opposed the bill, presumably on the grounds of natural opposition to the expansion of government bureaucracy and power which it represents. It will now go on to the Senate where there will be another opportunity to stop it from becoming law.
Although this bill has been promoted as an effort to increase food safety, it fails to address the main source of past problems which have really not been that severe and have mostly occurred in large-scale industrial agriculture, not small farms or food producers. In the process it introduces harsh regulations which will devastate small and local farmers and food related businesses. The bill also increases the power and authority of the Food and Drug Administration which has already demonstrated itself to be incompetent and easily corrupted. Perhaps worst of all, it contains provisions for clearly unconstitutional violations of the basic rights of many citizens.
Some of the most serious problems in the bill include:
- • Warrantless searches of farms and food processing facilities and wholesale seizure and potential destruction of produce and livestock with nothing resembling probable cause or due process of law, in clear violation of the protection of property guaranteed in the 4th Amendment. The FDA will be able to go anywhere and search your home, your barn or your kitchen at whim, shut down your business and seize whatever it wants with no evidence.
- • A mandatory annual fee of $500 for any facility that “holds, processes, or manufactures food,” a category defined so broadly that it would impact most of the small scale producers who sell things like cheese, bread, eggs and vegetables at farmers markets with a fee sufficiently high to shut many of them down.
- • Takes consumer protection and food safety regulation away from the states and concentrates it in the hands of federal bureaucrats at the FDA. Also includes unprecedented enforcement powers allowing the FDA to essentially declare martial law in areas where they suspect food contamination and shut down businesses and trasnportation, again with very broad wording and no regard to constitutional rights or due process. It also authorizes the FDA to dictate how various crops should be raised and processed, again entirely at the discretion of FDA bureaucrats who will now essentially be running your small farm or henhouse or kitchen-based jam canning operation. The power of the FDA will be massively expanded with little accountability.
- • A complex and expensive food tracking system which theoretically mandates that all food products be tagged at the point of origin and recorded throughout the distribution process, adding massive bureaucracy at every level of the process of producing, distributing and selling food with much of the associated expense on the backs of small businesses and farmers.
- • Severe criminal and civil penalties, including fines of up to $100,000 and 10 years in prison for each violation of an FDA rule. Spending her twilight years in the slammer and losing her house will sure teach Grammy not to leave the official FDA ingredients label off of the jams she sells at the farmers market.
Perhaps most troubling is that large industrial farmers and food product manufacturers are exempted from most of this draconian regulation, despite the fact that they are the ones responsible for the outbreaks of salmonella and e-coli contamination of meat and spinach and peanut butter which have provided the pretext for this legislative excess. At the same time, small farmers and food manufacturers who have a history of providing safe and healthy products will bear the heavy weight of regulation, fees and meddling from a huge new food bureaucracy.
Although some consumer advocacy groups have supported the bill, groups which represent the interests of small farmers like The Farm to Consumer Legal Defense Fund have opposed it vehemently. As finally passed, some aspects of the bill seem to have been made more reasonable, with most farms and cattle ranches are exempted from the worst regulatory provisions, but the harsh enforcement measures and extreme emergency powers for the FDA remain intact.
Putting aside the harm the bill will certainly still do to a lot of small businesses, what concerns me the most and what I consider more than sufficient reason to see this bill strongly opposed in the Senate, are the clearly unconstitutional powers which it gives to an agency which already has far too little citizen or congressional oversight. With the FDA’s history of scandals and undue influence from the pharmaceutical industry, giving it more power and authority over everything we eat just seems like an inherently bad idea. Despite scaremongering in the media, the actual number and severity of outbreaks of food related illness remains remarkably low and the current level of regulation from state agencies and the USDA seems to be entirely adequate. What this bill mostly does is protect the food industry from competition, empower bureaucrats and trample on citizens rights. There’s no reasonable justification for enacting it into law.