Wednesday, November 24, 2010

S510--Industrial ag businesses show their true colors!

S510 is all about food safety. That's what the bill's sponsors want us to believe. That's its title: The FDA Food Safety Modernization Act.

But when you get down to it, is it really about food safety? Or is it, as so many federal bills and rules and regulations seem to be today, window dressing on the problem ("lipstick on the pig"), a protection scheme for major agribusinesses, and a brilliant (hidden) means for those self-same agribusinesses to put their smaller competitors out of business or, at least, at a serious disadvantage?

The Weston A. Price Foundation sent out the following update on Monday evening:
Last week, the Senate voted 74-25 to move to consideration of S.510, the Food Safety Modernization Act. After thirty hours of debate and behind-the-scenes negotiations, the Senators released a final Managers Amendment that includes a compromise version of the Tester-Hagan amendment.
The compromise Tester-Hagan amendment . . .
  • Exempts producers whose revenue is less than $500,000 a year and who sell more than half of their products directly to consumers or "qualified end-users."
  • Specifies that "retail food establishments" -- which are exempt from the existing requirements to register with FDA and from the other new federal requirements in this law -- includes businesses that sell directly to consumers through farmers' markets, roadside stands and other local outlets.
  • Requires the FDA to conduct a study that looks at the incidence of foodborne illness in relation to the size and type of the facility, as well as the risks associated with commingling, processing, transporting, and storing food, "including differences in risk based on the scale and duration of such activities." In other words, for the first time, the FDA will have to collect and evaluate data on how different management practices affect the risk of foodborne illness.
  • Requires the FDA to consider the data mentioned above as it defines "very small businesses," which will also be exempt from the new requirements.
(For the full text of the amendment, go here.)

On constitutional grounds,I don't see how the Senate has any right to make any such rule concerning businesses whose commerce is conducted wholly within one state or another. The federal government, according to the Constitution, has the right and responsibility only to oversee interstate commerce, not intrastate commerce.

But ignoring that not-so-fine point of constitutional law, and granting the federal government powers it has no right to have, still, considering the requirements of the unamended law--requirements that place a relatively minor burden on large ("industrial scale") food processors, but could put smaller, family-run operations out of business--it seems to me that the Tester-Hagan Amendment is the least the Senate should do in behalf of small-scale and local farm sand food distributors.


So the Tester-Hagan amendment is currently included in S510. Good news, yes?

Maybe not!

According to Weston A. Price Foundation:
[E]ven though an agreement was reached on the Tester-Hagan amendment last week, the issue is . . . not over. The final vote on the bill has been delayed until Monday, November 29. . . . And, in the meantime, Agribusiness has shown its true colors.

For over a year, the big Agribusiness trade organizations have supported passage of S.510. From Agribusinesses'' perspective, the bill was a win-win: they could absorb the costs of the regulations because of their size; they'd gain good PR for supposedly improving food safety practices; and the competition created by local food producers, which is rapidly growing, would be crushed by the regulatory burdens.

This was only speculation until now. But when the Senators agreed to include the Tester-Hagan amendment in the bill, . . . twenty Agribusiness trade organizations fired off a letter stating that they would now oppose the bill.

The letter from the Agribusiness groups states:
[B]y incorporating the Tester amendment in the bill, consumers will be left vulnerable to the gaping holes and uneven application of the law created by these exemptions. In addition, it sets an unfortunate precedent for future action on food safety policy by Congress that science and risk-based standards can be ignored.
What science and risk? No one has produced any data or evidence of any widespread problems caused by local producers and marketed directly to consumers. All of the major foodborne illness outbreaks have been caused by products that went through the long supply chains of Agribusiness.

Agribusinesses' real concern about the Tester-Hagan amendment isn't food safety, but the precedent set by having Congress recognize that small, direct-marketing producers are different, and should be regulated differently than large Agribusinesses.

Agribusiness is trying to convince the Senators to pull the Tester-Hagan amendment back out. While the amendment is currently part of the Managers Package, the amended version of the bill agreed to by six bipartisan sponsors, nothing is certain until the actual vote.


This Thanksgiving week, please take a moment to call or email your Senators to tell them to hold firm on KEEPING the Tester-Hagan amendment part of the bill.

You can call the Capitol Switchboard at 202-224-3121 or go to to find their website (if the phone lines are busy, the best way to reach them is through the Contact Page on their website)
Oh, come on! I can hear some of my readers say. What's the big deal? Indeed, if you have read the Snopes article on the subject of the Food Safety Acts, you may be tempted to say the entire concern is overblown and tantamount to a hoax. After all, their attempt at a level-headed evaluation says the grounds for concerns expressed about these bills possibly "eliminat[ing] home gardens and put[ting] organic farmers out of business" are "Mostly False." Most of the claims about "dire results citizens would face should the bill pass . . . [were/are] unwarranted by anything stated within the bill itself."

Whew! Relax! Take a deep breath!

. . . Interesting, then, to see the same Snopes article suggest that "Sources such as the Farm-To-Consumer Legal Defense Fund are better starting points for grasping some of the issues regarding how [the bill] might affect small farmers."

So let's go to the Farm-To-Consumer Legal Defense Fund (FTCLDF) website and find out what they have to say.

The Snopes article, written in early 2009, actually links to an article that has to do with a bill that is now out of date.

So let us take an article that deals with the situation we face today.

Sign the petition to Reject S.510, it begins. "More than ever S510 represents a major threat to the local food movement, states' autonomy to regulate food, and the country's ability to become self-sufficient in food production," it continues.

Whoa! What?!?

Because S510 is really a parallel to a House Bill (HR2749), and the arguments for and against one are generally good for and against the other, I am taking the best material from articles about both bills to help you understand the issues at stake.

In HR 2749’s Real Impacts: a Response to Consumers’ Union, FTCLDF writes,
The FTCLDF agrees that the industrial food safety system has serious flaws and needs to be fixed. The country has seen numerous outbreaks of foodborne illnesses caused by imported foods or domestic foods that were processed in huge facilities and shipped throughout the country. Unfortunately, [the bill] does not focus FDA’s efforts on these very real problems. Instead, it creates a regulatory framework that will heavily burden the small farms and local food processors, the very people who provide a safe, healthy alternative to the industrial food supply.

Food safety is a priority shared by everyone. The FTCLDF calls on [proponents of the bill] to explain exactly how the bill would address the industrial food supply problems without harming the local food movement. The fact that massive, industrial food companies, such as Peanut Corporation of America, have killed or sickened people is a strong argument for regulating such companies, and we applaud CU’s efforts to improve the industrial food supply. But the wrongs committed by these companies are not a valid basis for harming the hundreds of thousands of safe, healthy small farms and artisan producers who will be burdened, or even driven out of business, by [the bill].
FTCLDF then goes into detail about the problems:
  • $500 Annual Registration Fee (not to mention paperwork required to report to the FDA) for any "facility" that holds, processes, or manufactures food.
    While the statute excludes “farms,” the FDA’s current regulations take a very narrow view of what qualifies. Under the existing regulations, a place that grows food and does any processing of that food for sale [is] not . . . a farm, and thus would be subject to [the bill]. . . . In other words, a farm that washes greens, cut vegetables, or dries fruit before selling it would be forced to register and pay the annual fee under the regulatory definition of “farm.”

    Currently, FDA has a guidance document that modifies the regulation and allows “farms” to process food so long as the ingredients are grown on the same farm. [However, e]ven under the guidance document, many small farms and artisanal producers could be required to register. FDA has not strictly enforced this requirement so far, but that is no guarantee about future actions by the agency. And if the agency were to revoke the guidance document and enforce the registration requirement in accordance with the definition of “farm” contained in the regulations, many farms would be required to register and, under the FSEA, pay an annual fee.

    Moreover, farms are not the only issue. There are thousands of individuals who are making artisan foods, such as making jams, breads, fermented vegetables, cheese, or other foods, which they sell to directly to customers at local farmers markets and similar venues. All of these individuals would be forced to pay an annual fee of $500 to the FDA and comply with extensive paperwork burdens. Notably, the fee is the same regardless of whether it applies to an individual selling a few hundred dollars worth of product or a multi-million dollar company shipping products all over the country.

    It is not equitable for a local grandmother making jam from farmers’ excess fruit to have to pay the same fee as a Heinz processing plant. Nor does the FTCLDF believe local artisan food processor should be subject to the same extensive paperwork requirements as the massive industrial processing plants.
  • Regulation of how farms grow and harvest crops.

    FTCLDF agrees . . . that [the bill] does not call for the elimination of organic practices. However, the bill’s provision directing the [FDA] to set standards for how food is grown and harvested is very troubling. For example, after the E. coli outbreak linked to spinach that was grown in California and then processed and sent all over the country, the agency developed guidelines that were based entirely on the industrial agriculture model. . . . The guidelines were expensive, burdensome, and wholly unnecessary for small, diversified farms.

    After FTCLDF issued its first alert, [the Food Safety bill] was amended to direct FDA “to take into consideration, consistent with ensuring enforceable public health protection, the impact on small scale and diversified farms . . .” While this is an encouraging step, it does not provide sufficient protection.

    The FDA has yet to demonstrate that it has any understanding whatsoever of the needs of small scale and diversified farms. And the new language does not prevent FDA from developing standards that drive such farms out of business under the guise of developing “enforceable standards.”

    No one has demonstrated any need for FDA to regulate growing practices on small and diversified farms. No major outbreaks have been traced to such farms. There is nothing to be gained, and much to be lost, by granting FDA this authority.
  • And the list continues . . .
How truly problematic is this legislation? And how necessary is it to begin with? What is it really meant to address?

I thought the following articles were enlightening.

The September 2010 Acres USA magazine includes a brief report that references an article in Food Safety News. How did E. coli O145 infect romaine lettuce that then sickened people around the country? The Acres USA author notes,
One of the largest cattle feedlots in the country is located about 20 miles from the heart of Arizona's leafy green production in the Gila and Dome Valleys. Conditions in the feedlot produce huge volumes of mud, as dirt mix manure and water. When dry, hot, windy weather hits, the mud dries, the cattle breakdown clumps into dust, and the dust blows, often for many miles.

The FDA is pushing ahead with the process of establishing new leafy green food safety regulations. The new requirements fail to target . . . sick or stressed cattle shedding E. coli . . . and other [pathogens] in their manure.
Then there's the article Risk, bacteria, and the tragedy of food-safety reform from
It is impossible, it seems, to come up with a policy that zeroes in on the real systematic risk of the food system: the exponential expansion of hazard that comes from concentrating huge amounts of production in relatively small spaces.

Clearly, highly profitable industries like Big Food wield tremendous power in our political system. Just as no health-care reform could pass that didn't respect the privileges of the insurance and pharmaceutical industries, just as no climate policy could even be attempted without including massive giveaways to the very industries that cause climate change (see Ryan Lizza's tragicomic post-mortem in The New Yorker), food safety reform is evidently hostage to Big Food.

The Grocery Manufacturers of America, a potent trade group whose members range from Monsanto and Cargill to Kraft and McDonald's, supports S. 510. That alone tells me that the bill at best promotes marginal, techno-based solutions to the food-safety problem, ones that don't challenge the interests, or practices, of the food giants. As Food and Water Watch's Elanor Starmer recently pointed out on Grist, the bill's new inspection powers for the FDA are so weak that they would not even have prevented the notorious salmonella-tainted peanut butter scandal of 2009. And yet -- as David Gumpert argued forcefully in our forum -- those same powers may well prove too strong for the small-scale, vulnerable operations that are busily building up alternatives to Big Food. . . .

to tease out my point, let's consider the role of the federal government in regulating two kinds of dairy farms: industrial-scale ones in Wisconsin, and a small artisanal operation in Washington State.

In a fantastic investigative piece last year, The New York Times' Charles Duhigg looked at a spate of illnesses in a dairy-intensive Wisconsin county. He wrote:

There are 41,000 dairy cows in Brown County, which includes Morrison, and they produce more than 260 million gallons of manure each year, much of which is spread on nearby grain fields. Other farmers receive fees to cover their land with slaughterhouse waste and treated sewage.
After an early thaw last year, some of those quarter-billion gallons of cow shit found their way into people's drinking water. Reports Duhigg:

In Morrison, more than 100 wells were polluted by agricultural runoff within a few months, according to local officials. As parasites and bacteria seeped into drinking water, residents suffered from chronic diarrhea, stomach illnesses and severe ear infections.
So here we have a case of vast concentration of production, and a situation wherein known microbial pathogens (including E. coli and fecal coliform) are destined to foul people's water and make them ill. This is systematic, predictable risk. The federal government's response?

[R]unoff from all but the largest farms is essentially unregulated by many of the federal laws intended to prevent pollution and protect drinking water sources. The Clean Water Act of 1972 largely regulates only chemicals or contaminants that move through pipes or ditches, which means it does not typically apply to waste that is sprayed on a field and seeps into groundwater.
Now let's look at case No. 2: Estrella Family Creamery in Washington state, where Kelli Estrella and her family tend 36 cows and 40 goats and turn their milk into highly regarded unpasteurized cheeses. New York Times food-business reporter William Neuman reports that -- unlike those Wisconsin dairies -- the Estrella operation has made no one sick. Yet FDA inspectors have found listeria in some of her cheeses -- and moved to shut down her operation after she refused to submit to a "voluntary" recall. And they've banned Estrella from selling both her hard and soft cheeses, even though only her soft cheese tested positive for listeria.

Now, I don't want to make light of the threat of listeria, a truly nasty bacteria. But let's look as the risks here. Unlike the case of the Wisconsin dairies, the risks are incidental, not systematic. People made cheese for millenia before the advent of pasteurization in the 19th century -- and in much of Europe, nearly all cheese is still made with raw milk. Small children and pregnant mothers aren't regularly falling over from cheese-eating in France. Listeria can infect raw milk cheese, but by no means does it always infect raw milk cheese.

Moreover, listeria from Estrella Creamery cheese threatens only those people who knowingly buy the product, while runoff from Wisconsin's industrial-scale dairies infects everyone who lives nearby. And the threats from Estrella remain theoretical; unlike in that dairy-intensive Wisconsin county, no one has reported falling ill from eating Estrella cheese.

And yet federal officials take an our-hands-are-tied approach to the menace of tainted water in Wisconsin, and bring down an iron fist on the small dairy in Washington. It's hard not to conclude that the disparate responses stem from the fact that industrial-scale dairy farmers -- and the very few large processors that purchase their milk -- have bought influence in Washington, while artisanal cheese producers haven't. This is food safety as protection racket.

For Big Food, the answer to these microbial dilemmas might well end up being: sterilize it all. Most cheese consumed in the United States is made from pasteurized milk; make them pasteurize all of it. And if runoff from fields sprayed with waste from massive dairies is fouling drinking water, then make those big dairies "treat" the waste with antimicrobials before spreading it.

But Bilger's profile of Sandor Katz suggests a different approach. The real systematic risks in our food system don't come from bacteria itself; indeed, bacteria is fundamental to life. The problem comes from concentration of bacteria to the point where sicknesses become inevitable. So de-concentrate the food system, don't sterilize it.

And as for cases like Estrella Creamery, the push should be to identify the source of the listeria and address it, not to shut the dairy down.

Of course, in our political system, creating a food-safety regime that targets the real systematic risk in food production seems impossible. So, while we take small steps forward like S. 510, let's not lose sight of the need to rein in the giant corporations that generate most of the risk, and nurture the small producers who are doing the necessary work of de-concentrating our pathogen-concentrating food system.
Or, back to FTCLDF and the article FDA's Ace in the Hole:
Despite there being not even a single report of illness, there have been numerous instances over the past four years where licensed raw milk dairies in New York and Pennsylvania have had their sales suspended due to positive tests for Listeria monocytogenes (L-mono), a sometimes virulent foodborne pathogen. The farmers typically lost a week to two weeks in sales plus the price of any milk the farms received back after issuing a recall due to the discovery of L-mono in a milk sample. Some farmers were also fined for adulteration because the raw milk was deemed to contain a “harmful substance which may render the milk injurious to health.”
Sounds good, doesn't it? Why should the government play games with L-mono? If the bacterium is "sometimes virulent," doesn't it make sense to assume it is dangerous?

Well . . . If that's the standard, then the government had better shut down virtually all milk and meat producers, all farms, all water processing plants, all everything. Shouldn't it? Virtually all meats and milks and farm products and water we drink: they all contain pathogens. So why these particular milk producers? Could it, by any chance, have anything to do with the political power of the milk producers who prefer pasteurization over holding themselves to a higher standard of cleanliness throughout the production process (and not only after pasteurization)?
For the last thirty-eight years, and possibly further back, there have been no reports of illness caused by the consumption of raw milk that was attributed to L-mono. . . .
Part of the reason there have been no reports of illness may be because "[t]here are many subtypes of Listeria monocytogenes; many of these subtypes have not been implicated in human illness." And, "Even if the subtype of L-mono is virulent, it still needs to be determined whether the amount of bacteria in the food is enough to cause illness in humans. FDA has a “zero” tolerance policy for L-mono, a standard widely rejected by the scientific community throughout the world. The European Union (EU) allows up to 100 organisms per gram in food at the end of its shelf life."

So what is going on here? Politics?

Check this out:
L-mono is widespread in the environment. If environmental testing at a food plant is positive for L-mono, foods produced in the plant at that time could be found to be adulterated due their having “been prepared, packed, or held under unsanitary conditions whereby it may have become contaminated with filth, or whereby it may have been rendered injurious to health.” FDA didn’t find any L-mono in the environment at the Morningland plant but it was not for lack of trying; the agency took one hundred environmental swabs in the plant, all of which came up negative. The agency inspector collecting the swabs promised the dairy’s owners, Joe and Denise Dixon, that they would be getting a copy of the report but to this date no report has been received.

. . . FDA’s position is that if a food sample tests positive for L-mono or any other pathogen, any other food produced on the same equipment is adulterated. This position was also taken by the Missouri Milk Board in its handling of the Morningland case [even though, as indicated, they found no evidence that the equipment at Morningland had been contaminated!].

A Milk Board inspector told Joe that the embargoed cheese would still be suspect even if samples of it did test negative. When Joe asked the inspector, “Why do we even test?” There was no response.

Recently, the United States Food and Drug Administration (FDA) has pressured farmstead cheesemakers in Washington state and Missouri into recalling thousands of pounds of cheese due to samples testing positive for L-mono even though in neither case was there a single report of foodborne illness blamed on the farmstead operations.

Compared to the raw milk incidents mentioned above, the stakes are much higher here. Unlike the raw milk producers who can only sell in their own states due to the federal interstate ban, raw milk cheese aged at least sixty days can be sold anywhere in the U.S. and has a longer shelf life, meaning a great deal more money can be lost due to a recall.

The Missouri farmstead operation, Morningland Dairy, not only recalled over sixty thousand pounds of cheese but there is an additional fifty thousand pounds at the facility that is currently under embargo. The value of the embargoed cheese is around $250,000. In the thirty years it has been in business, there has never been a single case of foodborne [illness] attributed to the consumption of any of the dairy’s products.

The Missouri State Milk Board, pressured by FDA, has ordered that the cheese “be condemned as an adulterated, unlawful product” and has sought a court ruling that the product be destroyed. An inspector from the Milk Board has told the dairy that it must destroy all of the remaining cheese in order to get back into business; [at the time of writing, on October 13, 2010] cheese production at Morningland has been shut down since August 26, shortly after the Milk Board was notified by the California Department of Food and Agriculture (CDFA) that samples of Morningland’s cheese products had tested positive for L-mono and Staphylococcus aureus. [Note in orginal article: Staph aureus, is present normally on everybody’s skin and is considered protective. Most subtypes of this organism do not produce the toxin which can occasionally cause vomiting. Gastrointestinal illness from Staph aureus is self limiting—meaning medical treatment is not necessary].
The article concludes:
The cheese cases are an indicator of what could happen if S510, the FDA Food Safety Modernization Act, passes into law giving FDA mandatory recall power. The cases show how the recall power along with the food safety plan requirement [see HARPC] in the bill would be an effective way for the agency to cripple raw dairy producers who have harmed no one with their products. If S510 passes, state agencies and laboratories will be getting more funding from FDA and the influence of the agency on states in pushing its anti-raw milk agenda will increase. In working toward this end, “Listeria monocytogenes,” in Joe Dixon’s words, “can be FDA’s ace in the hole.”

For more on this subject, please see the Farm and Ranch Freedom Alliance . . . or look up tester-hagan amendment or food safety modernization act.

It is time to put an end to colossal businesses calling the shots in Washington for their own benefit!
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