The Farm to Consumer Legal Defense Fund (FCLDF), a group primarily devoted to preserving the right to sell raw milk, has mounted a vociferous internet campaign to defeat HR 2749, the Food Safety Enhancement Act (FSEA), alleging that the bill will hurt small farms. The bill was recently received unanimous approval from the House Energy and Commerce Committee and is on its way to a floor vote. Food Freedom has made even more alarming allegations, suggesting that the bill might require a $500 registration fee for every backyard garden and lead to a Monsanto takeover of the food system.

Good grief! Is any of this true? Here we take a close look at some of the more frightening claims.

Food Freedom asks whether the registration fee ($500 on any “facility” that holds, processes, or manufactures food) would apply to every home in the U.S. and every home garden.
CU Responds: No, of course not. In fact the bill applies to no homes or home gardens, nor any farms. The $500 registration fee is only for domestic and foreign manufacturing or processing facilities that sell products in the US, facilities that are in fact already required to register with the FDA. The bill does not expand the scope of who has to register as a facility, but it does make “facilities” as defined in the bill bear their fair share of the cost to inspect them.

Food Freedom claims HR 2749 would empower FDA to regulate how crops are raised and harvested. “It puts the federal government right on the farm, dictating to our farmers.” The blog goes on to theorize that FDA would use this purported new power to eliminate most organic farming and force all producers to adopt industrialized farming methods such as pesticides, fertilizer and genetically engineered seeds.
CU Responds: The FSEA does empower FDA to establish safety standards related to use of manure, irrigation water and other farming practices specifically to prevent microbial contamination that causes illness, such as the deadly E. coli O157:H7 that contaminated bagged spinach and cause three deaths including young children in 2007. However the FSEA in no way calls for elimination of manure or for use of GMOs, chemical fertilizer or pesticides. In fact the bill calls on FDA “to take into consideration, consistent with ensuring enforceable public health protection, the impact on small scale and diversified farms, and on wildlife habitat, conservation practices, watershed protection efforts, and organic production methods.”

FCLDF says that the bill will create random, warrantless searches of business records.
CU Responds: H.R. 2749 does not in any way empower FDA to conduct random warrantless searches of business records. The FSEA does provide, importantly, that FDA can have access to business records when it conducts an inspection to check whether plants are safe and complying with the law. It must inspect high risk food processors at least once a year. The need for this provision was highlighted by the behavior of the Peanut Corporation of America (PCA), which hid records of 12 positive test results for Salmonella contamination of its peanut products from state inspectors. Salmonella in PCA products eventually caused more than 700 reported illnesses and nine deaths.

FCLDF says that HR 2749 would give FDA the power to order a quarantine of a geographic area, including “prohibiting or restricting the movement of food or of any vehicle being used or that has been used to transport or hold such food within the geographic area.”
CU Responds: H.R. 2749 authorizes quarantine only if there is credible evidence of an imminent threat of serious adverse health consequences or death to humans or animals from a food item originating in a geographic region. The quarantine is limited to the area that FDA can demonstrate must be isolated in order to protect public health, and to the extent practical, it must be of limited duration.

FCLDF notes that HR 2749 charges the Secretary of Health and Human Services with establishing a tracing system for food. Each “person who produces, manufactures, processes, packs, transports, or holds such food” would have to “maintain the full pedigree of the origin and previous distribution history of the food…” Turning up the heat, Food Freedom theorizes that this could apply to every home.
CU Responds: No, it is not every home. H.R. 2749 specifically exempts food sold direct to the consumer (e.g. at a farm stand) or to a restaurant or grocery store from the tracing provisions. The bill does require FDA to issue regulations within two years to establish a system for tracing a food sold in interstate commerce back to its point of origin, whether domestic and imported food, within two days. This is needed because of the difficulty FDA currently has in identifying the source of food borne disease outbreaks. In the summer of 2008 it took the FDA months to ultimately identify and trace back Mexican peppers as the source of a Salmonella outbreak that was making thousands of people sick. In addition to the specific exemptions noted above, the bill also exempts animal products, which are regulated USDA, from the tracing provisions. Finally, FDA can also exempt other processors if FDA determines that tracing their products is not necessary to protect public health.

Both FCLDF and Food Freedom complain about the creation of criminal penalties and increased fines.
CU Responds: Yes, the bill provides for criminal penalties: prison terms of up to 10 years and fines of up to $100,000 for each violation. People who sell food that they know is likely to kill or sicken people should be severely penalized. They harm the public as well as damage the business of other food producers and processors. The owner of the PCA plant shipped peanut products that he knew were contaminated and which wound up killing nine people. We believe that the penalties for such behaviors should be severe. Criminal penalties are imposed as a result of criminal prosecutions in the courts under the standard rules of federal criminal procedure.