Friday, July 31, 2009

HR2749 - a thorough reading reveals many problems

Written in response to a blog elsewhere that states the latest version isn't so bad...

I believe I have the last copy of HR2749 in my lap; it was “ordered to be printed” yesterday. I have a number of concerns still.
1. It gives the Federal government jurisdiction over interstate commerce, still, which violates the Constitution. There is no exemption for farmers, homesteaders or small processors who sell only in their own states.
2. The exemption for those who sell over 50% direct to the public will of course require some of us to PROVE the mix of our business, which means government inspection of our paperwork, farms, etc anyway. I own a small local food store. I am the sole owner and the sole employee and currently have nothing of my own in the store other than tomatoes and cucumbers, but will have goat meat within the month and eggs and bread as soon as my egg processing room and kitchen are licensed. Now you’d THINK since I am sole owner, this would be direct to the public, but since I have a storefront instead of a farm stand, it is not. Complying with HR2749 would make my tiny 9 acre farm cost me more money and heartache than it is worth. Those folks who sell at a farmers market and at a retail store or establishment will have to watch their sales very, very carefully and keep their records for years, just in case. I know someone who underreports farm market sales because the market takes a percentage and he thinks that is so unfair even though he signed a contract. This person will pay eventually, but to the Feds rather than to the market he’s cheating, because he also sells to a restaurant. There goes his more than 50% direct!
3. Despite what seems to be the popular consensis that the 50% rule protects most small operations, I know a lot of family farms and homesteads that will have to comply. They have zero employees and due to lack of time (full time jobs, full time families) or lack of sales skills, sell more items to stores than to individuals.
4. This isn’t directly a part of NAIS because this bill regulates how the FDA and HHS handle food. The USDA has jurisdiction over most livestock products (meat, poultry AND eggs). However, there are still quite a few NAIS-like provisions in the bill (for those who don’t sell more than 50% directly to consumers according to the government officials who inspect them. I take the worst case scenario when inspections are involved since I know at least a dozen farmers who have had USDA agents on their properties, despite no wrongdoing or disease issue.) If you “misbrand” your products, which would include simply not registering your facility and securing a “unique identifier” (NAIS language) or paying the fee, you could be fined, your product could be seized, you could be thrown in jail, you could be quarantined, your animals could be seized… and possibly you could lose your property itself. You still have to provide full traceback (information about your growing methods and ingredients, including where you purchased them) and traceforeward (who distributes and/or buys your product, including their name, address and telephone number).
5. Something I haven’t seen discussed nearly enough is THIS ISN’T A ONE TIME FEE! This is an annual fee of $500. How many small producers honestly make a profit big enough to cover it? A lot of times people who sell small quantities of foods are trying to recoup some of their costs for their lifestyle in the country and would roll their eyes if you suggested they made a profit. I’ve had assorted livestock for 11 years. I lost money all 11 years on goats and sheep, but I love them so I keep them anyway. I used to make money on chickens. Oregon requires I build a separate room with three sinks, a separate refrigerator, have it inspected and pay a fee before I can sell eggs to any retail facility, even my own. I will lose money on chickens for at least this year and the year following. I gutted a bathroom to wash eggs in and have gotten no further because I ran out of money. I can’t wait to see how much it costs me to get the licensed kitchen done. Virtually all states require licensed kitchens to sell even one loaf of bread or jar of jam. The costs to sell anything more complicated than produce were ALREADY quite high before this bill. HR2749 also allows the fee to be altered in future years, and you can bet it will go up. Does it reassure me that the maximum amount is $175,000 for someone who owns multiple facilities? Hmmm…. do my home and my store count as multiple facilities? There is a note that fees may be refunded for years 2011 and up if the fees exceed the salaries and expenses of the FDA, but I am not holding my breath. The FDA, despite its inefficiency, is not known for frugality. Any fees due and unpaid within 30 days of the due date are “treated as a claim of the United States Government subject to subchapter II of chapter 37 of title 31, United States Code.” Folks, I don’t know what this means and I am afraid to look it up. I suspect it gives them seizure rights.
6. We still have to submit HAACP plans, no matter how small our facilities are, unless we can prove we sell more than 50% direct to the public. The FDA is allowed to decide your HAACP plan is not good enough and to change it. This means you are subject to their whims about stainless steel versus fomica or ceramic, certain brands of cleaners they like or dislike, whether your dishwasher is appropriate, whether you can use your licensed kitchen for preparing home goods, even if the state allows it, what could happen if your sink backed up and how you could prevent that, whether you have enough sinks, what could happen if you became near sighted and your lights were no longer placed and aimed well enough to help you and what you could do about that, what could possibly go wrong if your refrigerator didn’t get cold enough one day and the steps you could take to prevent that, what could possibly go wrong if a visitor came in without a hairnet on and how you could prevent that, what could go wrong if a bird flew in through an open door and how you could prevent that, etc, etc… if it seems I’m getting silly, it’s because that’s how HAACP is. And if somehow the government finds out a bird did fly in, you have to prove somehow that you have “established and implemented procedures to ensure that… no product from such facility enters commerce!”
6. The Secretary of Health and Human Services, not your very clean grandmother who taught you how to clean your kitchen, gets to decide what is acceptable. He gets to “review international hazard analysis and preventive control standards” to decide. I’ll bet vinegar and lemon juice, things used by our ancestors, won’t be on the approved list. I was given a ridiculous list of approved brands of cleaners for eggs. Yaay.
7. We have to submit our products for testing. They get to decide who performs the test. I know two Virginia goat cheese manufacturers who had cheese seized and sent off to labs. They both sent samples of the same cheese to facilities they knew. Surprise! The results were different. One of the farmers said the inspectors did not pack her cheese on dry ice before mailing the package off. If you dispute the results, you get to pay for both tests, a retest, fines, and perhaps a lawyer once your facility is shut down. Plus you lose business and possibly receive bad press over the closure, even if you are not guilty. You’d be surprised if you knew how reluctant newspapers were to handle cases like this where the farm is right and the government is wrong. I thought reporters had an obligation to report the truth. I began farm rights activism in 1999. I have seen very little media coverage, no matter how badly a farmer has been wronged. If it weren’t for the internet, people would never know.
8. The FDA still gets to decide how we may grow, harvest, process, pack, store, sort and transport produce that they consider potentially risky. Considering recent news, this could mean lettuce, spinach, tomatoes, peppers, almonds, pistachios, peanuts…
9. The FDA still gets to decide what they consider a risky facility that requires inspection at least once a year. If you make raw goat cheese, watch out. They’ll be interupting your sleep, your breakfast or your four year old’s birthday party to demand an inspection without warning and they WILL go in your kitchen, bathroom, bedrooms, living room, etc. They will. They are not required to have a search warrant. A warrant limits the search in time, place and scope. Guess what? No warrant? They can be in your house for hours, even days. And guess what? At least some of them will be packing guns! How do I know this? It’s happened before (USDA, though.)
10. The FDA can also modify the inspection schedule and inspect a facility more often than what is stated in HR2749. Yep, it says so on page 30.
11. The FDA can take your address book, your computer, your written records, your cell phone. Will you get them back? Possibly. Will they read your personal business? Possibly. At this very moment, I probably have four or five dirty jokes stored in the text function of my cell phone. Do I want the FDA reading them? Probably not.
12. The FDA can chose to interview your kids, your neighbors, your customers, your interns, or whomever else they want. Can you honestly say that if two or three agents dressed in black and packing pistols show up at your neighbor’s door asking questions about you that your neighbor will assume you are still the sweet person they know and will defend you? Probably not.
13. The FDA can access your records remotely. HR2749 does not specify that they will do so, but it has been rumored in Washington state and Vermont that both state and USDA officials have remotely accessed farmer’s computers. You know, hacked.
14. There are a number of places in the bill where the words “EXCLUDING farms and restaurants” have been removed and where “farm” has been inserted where “factory” was used in previous versions of the bill. There is a section in which the Secretary of the HHS no longer has to have reason to believe that a health concern may exist and now only has to believe that there are misbranding or recordkeeping errors. See pages 35 and 36. On page 64, dealing with surveillance, search and seizure,”credible evidence” was replaced with “reason to believe” and ” serious adverse health consequences or death to humans or animals” is replaced with “adulterated, misbranded, or otherwise in violation of this Act.”
15. It is clear that handwritten records will not satisfy these people. For one thing, they do not comply with traceability requirements.
16. Restaurants and grocery stores must keep records of all food purchased and sold or used as ingredients. No more casual cash transactions, even for something that seems totally harmless like green beans.
17. If the FDA deems your facility does not comply and they shut you down, you get to go through the reinspection process and pay all the associated fees for this. Don;t assume this is another $500 - although you’ll pay that, too. No, they’ll charge you man hours for however many people they decide are necessary to inspect you. You may also have to pay man hours for your facility to be inspected and shut down. If you make a few dozen jars of jam a week, you may see one inspector, or perhaps three or four or six… depends on whether you are a risk, I suppose. I noticed that the peopleI know who were treated the worst by state and federal ag agencies also had licenses to carry a gun. So if you chose to exercise your Second Amendment rights, you may pay emotionally and finacially with a veritable SWAT team in your kitchen. Supposedly none of the inspectors will have a conflict of interest. This sounds like it is to protect you, but what it is likely to mean is that the inspectors will be from another state. The fact that you will never see your inspector in the grocery store makes them a lot less likely to treat you with kindness. By the way, none of these man hours will be at minimum wage.
18. The Secretary of the HHS can provide information to state, federal and local agencies at will, but may not necessarily disclose this information to you. This could result in your having no idea what the people in your house think you are guilty of! Even better, they may also release information to foreign governments, international organizations, the public in general and the IRS. You don’t have to be proven guilty of selling unhealthy food in a court of law. You could simply sell “misbranded” food.
19. Quarantines are still in effect. There is no set mileage, but often it is a wider geographical area than you would expect, like 6-25 miles. From my house driving 25 miles south I pass TWO WHOLE TOWNS! And I live in a rural area. Quarantines do not affect only the farm or factory suspected of causing a health concern. They affect everyone who produces food within that region. The Feds can limit your movements and require your “food transport vehicle,” which is usually the only vehicle that runs on a farm (!) not move off your property. So you can’t go to the grocery store, the post office, the bank or your job…
20. The fines are way steep! Places that violate rules but can not be determined to do so knowingly: up to $20,000 for an individual but also up to $50,000 for any one "proceding"regarding that individual (I suppose this means if they find two or more violations). Places with more than one individual involved (I’m thinking Joel Salatin, who has family members on the same property operating slightly different business ventures) can face fines of up to $250,000 or $1,000,000. Fines double if they think you knowingly violate the rules.

Etc. I’m tired. It is 3am. You get the idea. This bill is not harmless. We must keep a similar bill from passing the Senate and we must chastise our Representatives soundly for voting for it.

8 Comments:

Anonymous Anonymous said...

You are over reacting a bit here. HACCP is an approach that puts you as the business owner in control of your processes. There will be guidance given to create your plans. I will assume that most will be quite basic and very simple to write and follow. We have been using HACCP for years in our meat facility. It's not that bad. Calm down a little, understand the language used in the bill, investigate a little, and you'll be fine.

July 31, 2009 at 8:10 AM  
Blogger Becky said...

I just called Sen. Wyden's office and got the ROYAL brushoff. His number is (202) 224-5244. It's going over to the Senate next... Jeff Merkley's number is (202) 224-3753 his staff member Jeremy, was really kind and instructive. Pass your comments and concerns to THIS office.
Here's the Thomas report... http://thomas.loc.gov/cgi-bin/bdquery/z?d111:H.R.2749:
informative.

July 31, 2009 at 9:14 AM  
Blogger Becky said...

Oh, and additionally, the Senate DOESN'T know about the rewording of the bill... Re: Larisa's concern #14. etc.

July 31, 2009 at 9:15 AM  
Blogger Becky said...

oh, and from the Congressional Budget Office...
CBO estimates that:
 Implementing the bill would increase spending subject to appropriation, on net, by about $2.0 billion over the 2010-2014 period, assuming annual appropriation action consistent with the bill; and
 Federal revenues from civil penalties for food related violations of the Federal Food, Drug, and Cosmetic Act would increase by $10 million over the 2010-2014 period and by $20 million over the 2010-2019 period.
H.R. 2749 would impose a number of mandates, as defined in the Unfunded Mandates Reform Act (UMRA), on individuals and entities involved in producing, manufacturing, processing, packing, transporting, distributing, receiving, holding, importing, or exporting articles of food. CBO estimates that the total cost of those mandates would exceed the threshold established in UMRA for private-sector entities ($139 million in
2 2009, adjusted annually for inflation) in each year, beginning with 2010. Given the
limited number of public entities affected by the requirements, CBO estimates that the
costs of intergovernmental mandates would fall below the threshold established in UMRA ($69 million in 2009, adjusted annually for inflation).
http://www.cbo.gov/ftpdocs/104xx/doc10478/hr2749.pdf

July 31, 2009 at 9:22 AM  
Blogger Larisa from Localvore Fresh Oregon Foods, LLC said...

I'll admit I have never worked in any place that could be considered a food processing facility (up until now) but from conversations with people who own them and are responsible for HAACP, HAACP is ineffective, is a waste of time and money and you are definitely at the whim of your inspector. No first hand knowlege here of HAACP, but I've been in the farm rights community since 1999 and converse with people in multiple states. I've been to court in support of a few of them. So although I don't claim to have personal knowledge in some of the issues I addressed above, I can claim to be educated on them.

July 31, 2009 at 2:28 PM  
Blogger charli_horse said...

I'm not familiar with HAACP, but I am familiar with the Constitution. HR 2749 violates it as well as our personal liberties and right to feed ourselves!

August 1, 2009 at 5:19 PM  
Anonymous Anonymous said...

Another "Anonymous" posted above, first comment, stating that you were OVERREACTING.

I strongly disagree. Actually, I think your reaction is right-on, and should be shared by each and every American - or world citizen. This bill affect everyone - in all the ways you mentioned in your article/summary. And in many ways that haven't been seen or discussed yet.

The main points are: 1. This bill & specific provisions therein are UNCONSTITUTIONAL. (the problem with that is this: our gov doesn't recognize the Constitution anymore and so they have no responsibility to follow it and the courts for the most part, follow along.) However, if state govs still believe in the Constitution, then we may be able to get states involved to protect the citizenry.

2. The FDA and/or all other gov entities have proven that even when their actions are entirely constrained by specific & identifiable language, they will act outside of the constraints. Even worse, is when, like in this bill, the language is so broad and vague, and the power is vested in appointed bureaucrats. Not much in this bill is defined or outlined with specificity. This bill essentially declares "open season" on farmers & food producers - anyone in the food chain, actually.

They can make it up as they go, they have absolutely no accountability for their actions, and they have unlimited power - to search & seize, to disrupt and/or halt commerce, to finacially target & destroy at will.

You don't think they'll do that? You don't believe that war is being waged on family farms & small producers-distributors? it's all "conspiracy theory" or overreaction?

Just for a stater, read the article below (from wholefoodusa.wordpress.com). Then go to you tube & listen to the story of the Ohio Manna Storehouse. And go to the Farm to Consumer Legal Defense Fund website and read a few articles, court documents or other writings there.

Then, you'll see that none of this is exaggerated or overreacted conspiracy nonsense. It's real. And it will have devastating impact on our lives if we allow it to happen.

FDA Hits Small Family Food Ministry for $100K for HyperLinking to Health Research

Annette and Ken Fischer, and their family, started a business up near Silver Bay, Minnesota called Wilderness Family Naturals in 2000 to supply healthy nutrient-dense products like coconut oil, dried berries, and spices (and later, dozens of other products) over the Internet. Just five years into it, their problems began– with the U.S. Food and Drug Administration (FDA). (read the rest of the story at:
http://wholefoodusa.wordpress.com/2009/08/05/fda-busts-small-family-food-firm-linking-to-health-research/)

THEN TAKE ACTION! Get involved. NOW! Call, write your state & fed reps. Talk to neighbors, get them to take action. And keep at it!

Also for this site owner/blogger: I point this out as a gentle critique ... several times you used the word "interstate" when it seemed like you were meaning that the commerce was only within that state - if that's the case, in-state commerce only? It's intrastate. "Interstate" commerce means between the states, from one state to the other. Or maybe I misread the sentence & could be mistaken about the word use.

anyway, thank you ever so much for writing the blog & the hard work you put into helping the small farmers community. you're a hero! /s/ Lynn Roberts, lynn@lawyerlynn.com

August 9, 2009 at 1:46 PM  
Blogger Larisa from Localvore Fresh Oregon Foods, LLC said...

I'll admit I found out I did not see the last version of the bill, just the last published version the night after the vote. I now have the final final bill... considerably longer, of course... and I promise to read it at some point in the next week or so to see what has changed. And yes, Lynn, you are right. I get interstate and intrastate mixed up all the time. (People keep correcting me, too, but it seems to be a mental block of mine!)

August 10, 2009 at 1:55 PM  

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