H.R. 875 Food Safety Modernization Act Of 2009

Fighting for our Republic

Fighting for our Republic

Having just spent the past 5.5 hours reading this new legislation, I can see why most legislators don’t read these bills.  However, what else are they being paid for?

I started reading this legislation because someone posted a freaked out comment about new legislation regulating our gardens.  I couldn’t understand WHY the government would want to do that.  After all, the stuff we raise is only for ourselves, and not for resale or any other form of commerce.  Unlike some, I want to know exactly what someone else is talking about before I go off half cocked.  H.R. 875

This bill is huge!  While nowhere near as large as any of the bogus stimulus packages, it contains so many links to other united States codes such as the IRS, Commerce, and the like.  And there is some ambiguous language in it such as when it refers to “A person”.   While some of these are defined, enough are there that I worry the language will allow for abuse later on.  And yes, perhaps will include our gardens.

Also, there were terms used here I’d never heard of before such as *de-identified data* and *zoonosis*.  So, I obviously had to go do some dictionary look-ups.  Most of the bill is extremely wordy, we have GOT to get rid of the lawyers who create these bills.

So, let me clear up the definitions of these words for you just in case you want to read this bill yourself, (LOL).

De-Indentified Data

I’ve left the link here so you can view this for yourselves, but suffice it to say that anything that can identify the individual or company has been removed from the report. The data can only be used for statistical evaluation.

Zoonosis

zoonose is any infectious disease that is able to be transmitted (in some instances, by a vector) from other animals, both wild and domestic, to humans or from humans to animals (the latter is sometimes called reverse zoonosis).  OK hope we are good on the terminology.

The first problem I had with the language of this bill was under Section 3 of the definitions. It seems to imply food that is produced for self use:

(5) CATEGORY 1 FOOD ESTABLISHMENT-

The term ‘category 1 food establishment’ means a food establishment (other than a seafood processing establishment) that slaughters, for the purpose of producing food, animals that are not subject to inspection under the Federal Meat Inspection Act or poultry that are not subject to inspection under the Poultry Products Inspection Act.

No link is provided to double check these statues that are referenced.  It is up to the reader of the bill to look them up.  This takes you to another huge article for meat alone.  You can read it here:

First off I checked the section pertaining to Miscellaneous Provisions thinking this is where it would be better defined.  No, the only definition is about Reindeer.  Now, I’m sure this is very important, but isn’t much good to any of us.

(4) SUBCHAPTER IV – AUXILIARY PROVISIONS

§671. Inspection services; refusal or withdrawal; hearing; business unfitness based upon certain convictions; other provisions for withdrawal of services unaffected; responsible connection with business; finality of Secretary’s actions; judicial review; record.

Nope, that didn’t seem to be the section either. So I pulled up the Poultry section which can be found HERE: Again we have a huge document but the definition I was trying to find wasn’t there.  My question again was how either of these might relate to personal use.  And there is NO WAY to search the document, you have to read through the whole thing…  No help at all considering the amount of information there.

So, I moved on to the next questionable section:

(7) CATEGORY 3 FOOD ESTABLISHMENT-

The term ‘category 3 food establishment’ means a food establishment (other than a category 1 or category 2 establishment) that processes cooked, pasteurized, or otherwise ready-to-eat seafood or other animal products, fresh produce in ready-to-eat raw form, or other products that pose a risk of hazardous contamination.

That still doesn’t rule out home grown, personal use and preparation of food at home.  And for those living on a farm, this is a serious question if you ask me.  And again, no links are provided and no extra information can be found.

So I kept reading hoping that SOMEWHERE it was better explained and came across this and BINGO we have what can only be assumed is home use:

(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).

(12) FOOD-

The term ‘food’ means a product intended to be used for food or drink for a human or an animal and components thereof.

(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.

The language here is just not enough to rule out future abuse and interpretation by some government lackey to take this to mean it is all right for them to come into our homes or small ranches and make problems even if we NEVER were to sell.  No mention is made of the barter system either.  Something I find worrisome.

Now I will grant that it is implied that it pertains to businesses, but as we have often seen with the federal government and agencies associated with them, implied isn’t sufficient to stop them without a court order.  And who wants to be taken to court?

And the following set off alarm bells!  Here it is, in black and white, (or whatever color I have it in, LOL).

(14) FOOD PRODUCTION FACILITY-

The term ‘food production facility’ means any farm, ranch, orchard, vineyard, aquaculture facility, or confined animal-feeding operation.

This is NOT GOOD! Here we have the means to twist and pervert the law.  Having watched the feds in action we KNOW they are more than capable of using any means available to them to do as they please.  This definition MUST be changed to EXCLUDE private homes and single family farms where no export of food goods happens.

And this section here was intriguing to me.

SEC. 102. CONSOLIDATION OF FOOD SAFETY FUNCTIONS.

(a) Transfer of Functions and Resources- For each component of the Department of Health and Human Services or the Department of Commerce specified in subsection (b), there are transferred to the Administration all functions, personnel, and assets (including facilities and financial resources) of those components as of the day before the date of the enactment of this Act (including all related functions of any officer or employee of the component) that relate to administration or enforcement of the food safety law, as determined by the President.

Why would this be done the DAY BEFORE it was to be enacted?  Is there a hidden meaning here?  There is certainly no explanation given.  Me being the curious sort, I looked to see why but although it is repeated several times throughout the text of the legislation, there is no meaning given to the significance of the timing.

TITLE II–ADMINISTRATION OF FOOD SAFETY PROGRAM

SEC. 201. ADMINISTRATION OF NATIONAL PROGRAM.

(2) ensure that persons who produce, process, or distribute food meet their responsibility to prevent or minimize food safety hazards related to their products.

Words like *produce* or *process* can literally mean ANYONE who does that.  Single family farms or home producers should not wind up under this banner which is all inclusive in nature.  This is too broad a definition without somewhere else taking care to exclude those two situations.

(3) the potential for persistence, multiplication, or concentration of naturally occurring or added contaminants in food;

Naturally occurring?  Just what do they mean by that?  No explanation is given.  This is bad language and poorly written as far as I am concerned.

(4) the potential for hazardous contamination to have cumulative toxic effects, multigenerational effects, or effects on specific categories of consumers;

Here again, no explanation is given and no definitions can be found anywhere in the text to make this part understandable as to what the intention is for the text.  Are they speaking of allergies here?  Of food-born pathogens?  And is the muligenerational effects supposed to be on humans or the plants themselves?  There is no definition to help one understand where the statute is going.  The end result is how it affects consumers, but the language as it stands could mean anything!  And isn’t a consumer any one who consumes?  This too is also too broad.

OK, now go back up to (A) In General and reread that definition before going to this next part.  I decided to recopy it here for ease of reading:

(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.

SEC. 202. REGISTRATION OF FOOD ESTABLISHMENTS AND FOREIGN FOOD ESTABLISHMENTS.

(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.

If you have to register you are going to pay a fee.  More money for the government who is infringing on our unalienable rights to privacy.  This bill needs some serious work done to it to clean up the language and preserve our privacy in places the government doesn’t belong.

In SEC.203 we have this little gem:

(c) Specific Hazard Controls- The Administrator may require any person with responsibility for or control over food or food ingredients to adopt specific hazard controls, if such controls are needed to ensure the protection of the public health.

And while it does state, *ensure the protection of the public health*, you and I are the public and it is our health they are speaking of.  Does this mean that the government can order us to prepare or cook food in certain ways or that we have to buy food preserved in certain ways instead of being able to grow our own?  Makes you wonder doesn’t it?

SEC. 204. PERFORMANCE STANDARDS FOR CONTAMINANTS IN FOOD.

(a) In General- To protect the public health, the Administrator shall establish by guidance document, action level, or regulation and enforce performance standards that define, with respect to specific foods and contaminants in food, the level of food safety performance that a person responsible for producing, processing, or selling food shall meet.

While wordy, this is still too broad a definition of *person responsible for producing or processing.* Each and every person who makes dinner in the home is processing the food.  And please don’t tell me I’m being silly or that I’m doing the *tomato/tomato* thing.  This is real and we’ve seen far too much abuse by the federal government.

And if you think I’m being nit-picky about all this, try to remember the Supreme Court case just settle against Wyerth for the damage done to a woman who lost her arm because the drug company didn’t put a strong enough warning on the label to stop physicians from administering the drug in a certain way.  The Food and Drug Administration stood shoulder to shoulder with Big Pharma AGAINST the woman instead of being the protector of the public it is supposed to be.  Is it any wonder that the FDA is being broken up???

(b) Identification of Contaminants; Performance Standards-

(1) LIST OF CONTAMINANTS- Not later than 6 months after the date of the enactment of this Act, the Administrator shall publish in the Federal Register a list of the contaminants in foods that have the greatest adverse impact on public health in terms of the number and severity of illnesses and number of deaths associated with foods regulated under this Act. Where appropriate, the Administrator shall indicate whether the risk posed by a contaminant is generalized or specific to particular foods or ingredients.

I’m not sure what to make of this one. If these are known contaminants, unless they are naturally occurring, how will a list help us?  And will it cover such things as the talc powder that ALL rice is processed in to keep it from sticking together?  That is a huge hazard to human health yet it is still going on.  Unless you wash your rice thoroughly before cooking, that stuff is in with your food when you eat it!  What about fluoride in your water and toothpaste???  Fluoride is the main active ingredient in rat poison.

Oh, and the *list* will only show the top 5 known contaminants!

(2) INSPECTIONS- If the Administrator determines that a food establishment fails to meet a standard promulgated under this section, the Administrator shall, as appropriate–

(A) detain, seize, or condemn food from the food establishment under section 402;

Again, any language that doesn’t more clearly define *food establishment* to exclude single family home gardens and single family farms with less that say, 100 animals, this could mean if you grow a garden the feds can stop you!  Now that is a broad statement, but so is this language.

(d) Alternative Inspection Frequencies- With respect to a subcategory of food establishment under category 2, 3, 4, or 5, the Administrator may establish alternative increasing or decreasing inspection frequencies for subcategories of food establishments or individual establishments, to foster risk-based allocation of resources. Before establishing an alternative inspection frequency for a subcategory of food establishments or individual establishments, the Administrator shall take into consideration the evidence described in paragraph (2)(D) and the overall record of compliance described in paragraph (2)(E) for such subcategory. In establishing alternative inspection frequencies under this subsection, the Administrator shall comply with the following criteria and procedures:

I do not believe this is possible.  Not according to their definitions of a *food establishment*.  At least until the definitions are further refined.  There is no way this agency can monitor, examine, and regulate EVERY single family dwelling or farm in this country.  It simply isn’t possible unless they want to hire about half the population that is currently out of work in this country!!!

At this point I feel the need to tell you that I am only 1/3rd of the way through the legislation and about halfway through all the things which *I* found wrong with it.  I feel I have to stop or I will lose anyone who tries to read this.

There is a bill in the Senate S425 which is also supposed to be the Senates version of this one in the House.  I haven’t viewed it yet.  But if the language is similar I’ll have the same problems with it.  Currently this bill is being looked at in Committee.  They are:

I’m curious as to what you think of my analysis of this bill.  Did you think it was accurate?  Bad?  What?  Let me hear from you, just watch the language.  Cussing won’t get your message approved.
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~ by justmytruth on March 10, 2009.

11 Responses to “H.R. 875 Food Safety Modernization Act Of 2009”

  1. MYTH: This bill will make it illegal to grow vegetables in a back-yard garden.
    FACT: This bill will make it illegal for anyone to sell vegetables from there back-yard garden to restaurants without permits/licensing/regulation

    FACT: Small farmers with “back-yard gardens” grow me nicer produce for my restaurant than anything I can get from SYSCO®.

  2. I appreciate your dissection and analysis of the bill. As a student of health policy and a participant in my local farmers’ market (eggs and honey) I am very interested in this legislation. I believe that the scope of this bill is so grand that it is not written specifically enough. I do not believe that it is the intention of this bill to micromanage small growers, but they definitely need to clarify that language before they can expect support from some key stakeholders! I believe that they need to amend the definitions and/or add exclusions for private/small-time farmers. I do believe that the FDA is too large now, though, to do a good job and that the concept behind this bill is promising.

  3. I’m not sure I know what a student of health policy is, but I can tell you that vague language opens the door to abuse and abusive government. I believe the language of this bill is intentionally vague so that it can be taken to extremes. The precedence has been set in other bills before it.

    Thank you though for taking the time to post a comment. They are appreciated.

  4. 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:

    (13) FOOD ESTABLISHMENT-

    (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.

  5. I will not give up my garden. ever. If you lived on my block I would not let them take yours either. I have sent e-mails to CO senate and house members. Bennet is on the ag committee. Most replied with “thanks for your comments on S425/ hr 875. This bill will ensure the future safety of our food supply.” they don’t see us. change your reps always.

  6. I agree. They don’t see us and that is part of the problem. They believe they know what is best for us and have forgotten they work for us, not their own special interests. We need to make them hear us through a rising up of the People in peaceful display of disapproval. Vote them OUT of office and do not vote in either a Republican OR a Democrat. They are equally NOT listening.

  7. Thanks for helping to clear this up for me. The bill has been sitting on my desk for almost a month, all 76 pages of it. I feel very threatened as an individual – this is real and we need to speak up and not lose interest or think someone else is going to take care of it.

    As a raw milk advocate and living in one of the few states where raw milk is legal, I see that this bill will narrow the definition of ‘adulterated milk’ and make the only solution to reach these new standards be pasteurization. This is crazy. Please stay on this. It’s time to start writing letters and not stop – please note that emails are easily deleted – a hand written letter is much more effective.

  8. That’s a promise. Americans need to band together to remind our legislators just who they work for. The legislators seem to think that the world is more important than we are. Contact your legislators, keep on them. REMIND them constantly who they work for, US, not the lobbyists who line their greasy pockets!

  9. Great analysis. We live in a suburb of San Diego, CA and have been thinking of growing lettuce for sale to the mom & pop stores and the general public. We have been looking in to the start up cost and regulations and saw that in our County there is nothing to keep us from doing so. After reading your blog, I realize you may have saved us thousands of dollars if HR 875 passes. The Government is so involved with looking for ways to either stick it to the little person or to restrict their ability to make some extra money in these difficult times. I just did a blog on another hot issue of gun control and repealing the Tiahrt Amendment. Washington must be held accountable for the bills that they are passing and READ them before voting!

  10. Well done article
    Here is something else to look at.
    http://www.blacklistednews.com/news-3563-0-3-3–.html

  11. I used to work for WAPA as a contractor Network analyst. They did power distribution, monitoring, controlled the damns, etc. Although that was many years ago, I somehow doubt that they have moved into smartgrid technology to this extent or that they would even want to. Western Area Power Administration or WAPA for short was a very small office with only about 40 people all told. They didn’t have the expertise to work with something like what is being described in your link. It isn’t that I doubt you, just that I worked there.

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