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By Sarah Foster
Posted 1:00 AM Eastern
November 10, 2010

Take a look at that picture with all kinds of good stuff – fruits, veggies, nuts, milk, and yogurt. Now imagine it with one of those red circles over it, the kind with a line through to indicate everything therein is banned or off-limits.

Hold that image in your mind because it’s what you can expect if the much-vaunted FDA Food Safety bill – now on the floor of the Senate -- is passed into law. The wipe-out won’t happen right away, but it will happen – gradually, over the next few years.

Congress is back in session for mopping-up exercises following the elections, and it’s expected that the long-delayed Senate floor fight over the controversial measure will take place some time this week. That is, unless Senate Majority Leader Harry Reid postpones debate and the vote until later in the “lame-duck” session.

If the bill does become law you can say goodbye to farmers markets, organically grown produce, raw milk – the kinds of food increasing numbers of Americans have been producing and seeking out.

Think I’m exaggerating? Here’s what attorney Pete Kennedy has to say about it. Kennedy is president of the Farm-to-Consumer Legal Defense Fund, a D.C.-based advocacy group that defends raw milk producers, organic food co-ops, organic growers, and family farms against overbearing governmental intrusions. Having spent countless hours pouring over the bill and its earlier versions, he knows its every phrase, every shaded meaning, as well as the statutes already on the books. His conclusions:

“The federal government will be imposing on the states its pro-pasteurization, pro-irradiation, pro-GMO version of safe food; in its view, the only good bacteria is dead bacteria,” Kennedy warns. “This is not about food safety; it’s about federal control over the food supply.”

S. 510: the "FDA Food Safety Modernization Act,” which Sen. Dick Durbin (D-Ill.) dropped it in the hopper in March last year, is the companion bill to H.R. 2749: the "Food Safety Enhancement Act,” introduced by Rep. John Dingell, D-Mich., in June 2009. The House version was anything but popular and all kinds of shenanigans on the part of Speaker Nancy Pelosi and Rep. Henry Waxman, D-Calif. (head of the House Energy and Commerce Committee) were needed for passage. But despite a huge opposition, within the Capital and beyond the Beltway, H.R. 2749 was passed July 30, less than two months after its introduction. The vote was 283-142, thanks to over 50 Republicans who voted yes.

The grassroots uproar and bruising floor fight over the measure may have been why Reid opted to keep S. 510 on the back burner so long. But it was not forgotten. Like ObamaCare and Cap-and-Trade, this is a priority item on the administration’s wish list. The title suggests it’s not a “food safety” bill so much as an FDA-empowerment measure.

An e-mail alert sent by Downsize DC last week sums up in a nutshell what the battle over S. 510 is about and offers hope for defeating it in the Senate.

“S. 510 will make your food more expensive and less safe. It will drive many small farms out of business. The leaders of the ‘lame duck’ Congress want to pass this falsely named ‘food safety’ bill [THIS] WEEK, but they'll need 60 votes to break Sen. Coburn's ‘hold’ on the bill. That means we can defeat S. 510 with just 40 votes, but we must apply the pressure now!” (Emphasis mine)

Supporters of S. 510 and H.R. 2749 would challenge every claim in that e-mail, except the statement that Sen. Tom Coburn placed a hold on S. 510. Indeed he did, and as long as the Oklahoma Republican keeps that hold in place it will take 60 votes to move the bill forward. On Sept. 29 Reid filed a motion to proceed to a floor debate. Consumer groups and their allies recently reminded Reid of his motion and asked him to call for a vote Nov. 17 to invoke cloture.

Coburn has written a superb analysis of S. 510 and posted it on his website. His concerns include not only the costs but the gift of enormous power that would be given to the Food and Drug Administration (FDA). When you talk about food safety, bear in mind that the senator is a medical doctor, a family physician. He’s seen firsthand the effect of food-borne illnesses and understands the importance of real food safety.

Back to the e-mail…

As indicated, opponents need only 40 votes to keep the hold in place, but Sen. Tom Harkin, D-Iowa, claims to have lined up a whopping 90 votes for passage – way more than needed to invoke cloture and cut off a filibuster. Harkin chairs the Help, Energy, Labor, and Pensions Committee (HELP) where the bill was heard and amended. It has 20 co-sponsors – 8 of them Republicans. Most signed on in 2009 at the time the bill was introduced, but Rep. Vitter of Louisiana added his name just this past May 5. Louisiana tea partiers may want to ask him why.

Questions from concerned constituents could also be directed to co-sponsors Lamar Alexander, Tenn.; Richard Burr, N.C.; Judd Gregg, N.H.; John Isakson, Ga.; and Orin Hatch, Utah. Also to Mike Enzi of Wyoming – his support is puzzling since Enzi is reckoned a stalwart conservative. Like the others he’s on the HELP Committee, in fact he’s the ranking member. And like Vitter, he signed up long after S. 510 was introduced (on Nov. 30, 2009).

S. 510 was marked up in the HELP Committee, and the manager’s package, a revised version of the “FDA Food Safety Modernization Act, was released Aug. 12. It’s now 225 pages long -- 77 pages longer than the version of S 510 that passed out of the HELP Committee last November.

If the revised S. 510 makes it through the Senate, it will be merged with H.R 2479 in a conference committee, and the final version must be voted up or down by both houses.

“A Major Threat to the Local Food Movement”

What about Downsize DC’s claim that S. 510 would “make food more expensive, less safe and drive many small farmers out of business”?

Attorney Pete Kennedy would certainly agree. He’s done point-by-point comparisons of the various incarnations of the “Farm Safety” bills as they’ve moved through Congress. He knows them inside-out and doesn’t mince words when describing the damage they could do if enacted into law.

Here are some observations from a Sept. 23 article he wrote -- S 510: FDA Coming to a Farm Near You – in which he described how the bill would expand federal jurisdiction, in particular the FDA, over small farms; how it would diminish state regulatory authority; and how it would benefit food imports. (all emphasis and underscoring is Kennedy’s)

As Kennedy sees it: “More than ever S. 510 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. … Passage of the revised version into law will enable FDA potentially to regulate all farms marketing food products direct to consumers even if the farms engage only in intrastate commerce.”

“S 510 is not about protecting the public health but rather about increasing federal control over food and transferring market share from the local food system to the industrial food system. The bill grants broad rulemaking power to FDA, a grant not merited by the agency’s track record. Its passage will cripple local food over time.”

I flagged several points in Kennedy’s that caught my attention: the FDA’s chilling assertion in an ongoing legal case regarding fundamental rights; the elevation of the Department of Homeland Security as a major player in the food safety effort; and the role of the salmonella scare last summer.

FDA’s Views on Food Freedom of Choice

“S 510 would give FDA significantly more power to regulate food, particularly food in intrastate commerce,” says Kennedy. “For those who think it’s a good idea to give FDA more power, here are the agency’s views on your freedom to obtain the foods of your choice; these are direct quotations from the agency’s response to a lawsuit the Farm-to-Consumer Legal Defense Fund filed earlier this year challenging the interstate ban on raw milk for human consumption:

"There is no absolute right to consume or feed children any particular food." [A--p. 25]
"There is no 'deeply rooted' historical tradition of unfettered access to foods of all kinds." [A--p. 26]
"Plaintiffs' assertion of a 'fundamental right to their own bodily and physical health, which includes what foods they do and do not choose to consume for themselves and their families' is similarly unavailing because plaintiffs do not have a fundamental right to obtain any food they wish." [A--p. 26]
"There is no fundamental right to freedom of contract." [A--p. 27]

That’s really stark, and presumably reflects the beliefs of officials at an agency that would like to be entrusted with supervising the production and distribution of our food from farm to fork. You can’t say we weren’t warned.

A “National Security State”

Then there’s the matter of Dept. of Homeland Security involvement in food regulation. Is this something Americans want?

“In addition to increasing FDA's power, S. 510 would increase involvement in food regulation by the Department of Homeland Security (DHS), further integrating food and agriculture into the ‘national security state.’ The bill would implement Homeland Security Presidential Directive 9, a 2004 executive order which appointed the DHS Secretary as "principal Federal official to lead, integrate, and coordinate" among federal, state, local and private sector elements [E--p. 13].

“DHS is a monolithic, disjointed bureaucracy whose employees have little experience in food regulation. The department has enough problems coordinating internally on food regulation let alone coordinating with FDA, USDA and other federal and state agencies to provide food defense [E—p.18]. The best defense for this country would be the decentralization and localization of food production. Putting into motion the “national agriculture and food defense strategy” that is called for in section 108 of S. 510 would likely place our food regulatory system on more of a permanent crisis-mode footing, increasing the chance of a government overreaction to a food-related problem, such as occurred in Britain in 2002 during the hoof-in-mouth outbreak when thousands of livestock were needlessly slaughtered.”

Last Summer’s Egg Fiasco

According to Kennedy: “The push to pass S. 510 is currently being driven by an outbreak of foodborne illness sickening over 1,500 people that has been linked to salmonella-tainted eggs produced by Wright County Egg and Hillandale Farms, two of the ten largest egg producers in the country. What the mainstream media is ignoring in covering the story is that FDA’s current powers to regulate food were more than enough to put a stop to the problems caused by the egg producers.” (Emphasis mine)

It’s not as though the FDA were powerless. The agency already has jurisdiction over shell eggs and the power to inspect farms of egg producers engaged in interstate commerce. It could have carried out inspections and demanded records from the company. Instead, it waited until the situation was basically out of control and the only recourse was to recall and destroy millions upon millions of eggs.

I find the following particularly troubling:

“According to media reports, the problems with Wright County Egg were discovered back in May but only came to national attention in August (the voluntary recall of the eggs by Wright was announced on August13 – not coincidentally, the day after the manager’s package for S. 510 was released); even if Wright had refused to issue a voluntary recall, FDA still had the power under existing law to get the Wright eggs off the market in a shorter timeframe.”

How very convenient for S. 510 promoters, some of who have apparently taken to heart Rahm Emanuel’s advise to “never let a serious crisis go to waste.” Like the peanut scare that spurred the passage of H.R. 2749 by the House, the salmonella outbreak came at just the right time. It’s interesting that Wright County Egg is in Iowa, Sen. Harkin’s bailiwick. The USDA is reported to have visited the egg factory in May and had presumably spotted the filthy conditions that allowed the disease to flourish and spread. Did USDA tell FDA? If not, why not? Was the senator informed?

Where was the senator during the early days of the outbreak? Was news of the crisis kept under wraps until the summer recess when the senator would be in the state? Just asking. There are a lot of questions that should be asked and answered, but I’m not holding my breath.

However, I am hoping Congress will hold back and not give the FDA any more powers until these questions are answered and the agency has shown itself capable of properly exercising those it already has.

If you’re concerned about this, now’s the time to do something. Here’s a link to Downsize DC that provides a way that you can contact your senators and a petition from the Food-To-Consumer Legal Defense Fund.

Please send a letter right now telling your Senators to oppose S. 510.

Sign the petition to Reject S.510

To phone your senators, go to for their contact information or call the Capitol Switchboard at 202-224-3121.

Earlier Stories

1- Sarah Foster: House Set to Vote on Fast-Tracked "Food Safety" Bill: July 30, 2009
2- Sarah Foster: Will Congress Wipe Out Home Gardens, Growers Markets? Mar. 23, 2009
3- Doreen Hannes: Cheese Factory, FDA and Corruption: Nov. 13, 2010

Background Information

1- Pete Kennedy: Revised S. 510: Coming to a Farm Near You: Sept. 23, 2010
2- Pete Kennedy: The Worst of Both Bills: Analysis of H.R. 2749 and S. 510: May 6, 2010 (12 pages)
3- Food safety bills in Congress
4- Doreen Hannes: Food Safety Bills are Going to Bury Our Farmers in Paperwork: Sept. 7, 2009

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Sarah Foster is a political researcher and freelance writer in Sacramento, Calif. She holds a B.A. in anthropology from U.C., Berkeley and an M. A. in folklore and mythology from UCLA. A regular contributor to, her writings have also appeared in WorldNetDaily, Reason Magazine, Orange County Register, and other libertarian/conservative publications.

Sarah can be reached at:











If the bill does become law you can say goodbye to farmers markets, organically grown produce, raw milk – the kinds of food increasing numbers of Americans have been producing and seeking out.