H.R. 875, Food Safety Modernization Act of 2009

by Walter Olson on April 8, 2009

The panics over salmonella, E. Coli and unsafe foodstuffs from China have heightened the prospects that Congress will enact a measure known as H.R. 875, the “Food Safety Modernization Act of 2009″. radishseedShould the measure in its current form become law, “food establishments”, which to quote Patrick at Popehat “means anyone selling or storing food of any type for transmission to third parties via the act of commerce”*, will have to register with a new federal regulatory agency, submit to federal inspections, and, perhaps most significant, keep “copious records of sales and shipment by lot and label”. Penalties for infractions will be very, very steep.

What could possibly go wrong?

The answer, it seems, is “plenty”. Patrick, and the other writers linked just above, warn that the law may drive out of business local farmers and artisanal, small-scale producers of berries, herbs, cheese, and countless other wares, even when there is in fact nothing unsafe in their methods of production. Many informal makers of ethnically or culturally distinctive food items will go off-books or simply fall by the wayside, overwhelmed by the reporting and batch-tracking paperwork. Many foreign producers who ship in less-than-mass quantities will give up on the U.S. market rather than try to comply with challenging standards that differ drastically from those imposed by European markets or their own countries of origin, which in turn will mean that many interesting and safe specialty foods will simply no longer be available for purchase, at least legally.

The catch-phrase one keeps hearing is “CPSIA for food”.

So now an aggressive campaign of reassurance is underway: FSMA, it’s said, really should be seen as posing no particular threat to farmer’s markets or small producers — at least those that are not sloppy or cavalier about their customers’ safety. lettuceseedAt Treehugger, one finds language which with a word changed here or there is virtually identical to the reassuring language one recalls hearing from CPSIA backers:

I can’t imagine this resulting in anything more than a little paperwork and a brief headache for small farmers—they have no reason to worry about a seven figure fine. That amount is intended to account for corporate ne’er food-do-wells, and is therefore a pretty damn good incentive to keep factories and meat packing plants clean.

So even though home orchard proprietors and others operating at far less than a factory scale of production will in fact be exposed to stiff fines should they fall astray of the record-keeping obligations, this particular writer, Brian Merchant, “can’t imagine” stiff fines actually being imposed. You have to wonder whether Mr. Merchant was one of those who as recently as January couldn’t imagine CPSIA posing more than a “brief headache” for thrift stores or handmade toy crafters.

Among those prominent in this campaign of reassurance is the ubiquitous and media-friendly plaintiff’s lawyer Bill Marler, who’s carved out a thriving practice filing (and publicizing) food poisoning suits. Marler’s blog serves as a bit of a clearinghouse for articles vigorously disputing the idea that small producers have any reason, any good reason at least, to be afraid of H.R. 875.

The chief sponsor of FSMA’s Senate version is none other than Illinois Sen. Dick Durbin, and among the groups prominently backing the bill is none other than Consumers’ Union. We are now being asked to trust a legislative process in which Durbin and CU will count as insiders to ensure that the law’s provisions are shaped so as not to pose an undue or prohibitive burden on small producers far from the Washington scene. If there was ever a time when I would have trusted Sen. Durbin and Consumers’ Union with such a task, it was before the CPSIA debacle. Not only did the Durbins and CUs of the Washington scene help bring us that debacle, but — much less forgivably — they have continued blindly or mendaciously to deny that there is anything that needs fixing about that law at all, even as its damage has mounted month upon month. They do not deserve our trust on this matter.

Some other views: Slow Food, Ari LeVaux/AlterNet (noting that an alternative bill, HR 759, the “Food And Drug Administration Globalization Act,” may be more likely to pass and poses many of the same issues), Farm-to-Consumer Legal Defense Fund (oriented toward raw milk defense), Nicole Brodeur/Seattle Times (pooh-poohing concern over H.R. 875, but acknowledging the legitimacy of similar concerns that the animal-tracking program NAIS will render small animal-keeping operations uneconomic). Another source: Twitter hashtag #HR875.

More: & welcome Andrew Sullivan, Eve Tushnet, Hans Bader, Rob Wilson/Challenge and Fun, John Phipps/Incoming readers. And more from the “campaign of reassurance” camp: Hartford Courant (citing views of bill sponsor Rosa DeLauro, D-Ct.); Ryan Grim at Huffington Post (similar); Factcheck.org (criticizing untruths and hyperbole about the bill found in a widely circulated chain email, and seeming to guide readers to the Snopes-like conclusion that concern about the bill can therefore be dismissed). John Cole/Balloon Juice initially agrees in finding grounds for concern, then is convinced by commenters (who warn him against wicked, untrustworthy sites like this one) that it’s all “hysterical” and “nonsense”. More reactions: Patrick @ Popehat, Rod Dreher, Nick Gillespie @ Reason “Hit and Run”, Hans Bader and more, Vines and Cattle.

*Some reasssuring accounts of the law describe it as applying only to food in “interstate commerce”, which sounds as if it might not reach local and mom-and-pop operators at all; but the law’s definition of “interstate commerce,” as readers may remember, can include extremely localized doings, as in Wickard v. Filburn (farmer’s growing of wheat for his own consumption deemed “interstate commerce”). Section 406 of the bill reads as follows: “PRESUMPTION. In any action to enforce the requirements of the food safety law, the connection with interstate commerce required for jurisdiction shall be presumed to exist.”

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1 Ovaj Onaj 04.08.09 at 4:59 am

as is said before, call me a conspiracy theorist if you want, but driving small-scale producers out of business is not a bad side-effect, it is the real and main (and most probably the only) purpose of this and similar laws.

2 Ian Random 04.08.09 at 5:07 am

Good, something to hopefully get the irritating organic farmer types in the valley. I shouldn’t be too mean, I just want all their profits wiped-out and maybe now they’d be more receptive to that natural gas powerplant they nimby’d.

3 Melanie 04.08.09 at 9:00 am

THANK YOU for writing about this! Please keep following this as closely as you have CPSIA! Geez…this is CPSIA all over again, but for food! And since the same people are behind it, I don’t trust them as far as I could throw them! I just forwarded this link to everyone I know and urged them to keep sharing, and start calling!
We are losing our power to Big Brother, and we have to come together and find a way to stop it. They are taking control and too many of the American people are still letting them. Once everyone wakes up and realizes what we’ve lost, we won’t be able to take it back (at least not easily or without civil war…) Stop it now, while we have a chance!

4 Shtetl G 04.08.09 at 9:46 am

Aren’t there some baseball players taking steroids somewhere? What about the mockery that is the BCS? These are the important issues that congress should be wasting time, I mean tackling.

5 John Beaty 04.08.09 at 10:34 am

So (without any snark on my part) how are we to prevent situations like PCA and the spinach salmonella debacle without SOME form of overriding federal law?

I think this bill sucks, I thought CPSIA sucked but I am at a loss as to how to write one that works.

6 No Name Guy 04.08.09 at 11:13 am


Well, those producers are bankrupt. Something about poisoning your customers being bad for business and all.

Evidence that regulation isn’t required for everything: The recent salmonella (?sp) on the pistachios (again, ?sp) case was found by the producer doing tests on their own accord, without regulation, to insure they’re shipping a quality product. Hmmm….I guess they’ll be able to use it in their advertising to the effect of look, we go above and beyond in looking out for you, our customers. Kind of like what Tylenol did way back when in pulling all their product.

7 Greg 04.08.09 at 11:25 am

This sort of thing makes me very worried for the future. It seems that now every time there’s some new health or safety issue that captures the public’s attention, Congress responds with massive regulatory overkill without regard for the consequences. If this becomes their standard operating procedure, in a few years there will literally be no freedom left in America. Because there is risk and danger in almost everything, and it is impossible to guarantee perfect safety, but in the attempt to achieve the impossible, they’ll end up regulating all freedom out of existence.

8 Patrick 04.08.09 at 12:11 pm

So (without any snark on my part) how are we to prevent situations like PCA and the spinach salmonella debacle without SOME form of overriding federal law?

Even if one assumes that this law would, in fact, prevent people from getting salmonella (I submit that it won’t), tort liability already provides a strong incentive to produce safe food, and its costs are factored into food production through insurance and the like.

What this question ignores is the additional costs this law would impose, on growers, producers, and society. That’s a question worth asking as well.

For instance, New York’s Rockefeller laws impose a heavy cost on offenders, their families, and society, but have not stopped illegal drug use in that state.

Asking, “How can we permit drug use/salmonella/lead in toys?” misses the point. The right questions to ask about any new law are: what behavior is this law intended to curb? how prevalent is the behavior now? to what extent will the new law curb the undesired behavior? what are the probable undesirable consequences of the law? and what is its cost?

I submit that the FSMA comes up short when one asks those questions.

9 John Beaty 04.08.09 at 12:27 pm

Thanks NoName and Patrick. I don’t think being able to sue or having a company go out for business for poisoning its customers is real comfort for those at risk, when they have no way of knowing in advance where to place their trust.

But I think I’ll think more on Patrick’s questions.

10 Robin 04.08.09 at 1:05 pm

John said:
“I don’t think being able to sue or having a company go out for business for poisoning its customers is real comfort for those at risk, when they have no way of knowing in advance where to place their trust.”

Here’s a newsflash: piles of paperwork do not prevent salmonella. At best these efforts are supposed to help identify a source of a large outbreak. In other words, help stop an outbreak from continuing. This is a regulatory burden that will help ONLY with large scale producers and resellers and ONLY AFTER people get sick. I maintain that problems that occur with small scale producers never hit the radar screen of the media (because only a tiny number of people are affected) so that they can drive the hysteria and paranoia that leads to crappy legislation like this.

11 Alton 04.08.09 at 1:30 pm

John said:
“I don’t think being able to sue or having a company go out for business for poisoning its customers is real comfort for those at risk, when they have no way of knowing in advance where to place their trust.”

Although we all are “at risk” in a cosmic sense, I take “real comfort” in the fact that the current food supply enjoyed by Americans is the safest in recorded history. Not much Durbin and the CU can do to improve on this. But as we know, they have the ability to stifle further food safety innovation – forcing innovation dollars into regulatory complaince.

12 kristi 04.08.09 at 4:29 pm

Tristan, parts of sec 401 are limited to importation or interstate shipment of food, but the registration, inspection, recordkeeping sections (see 401(3)-(10)) are not.

13 Darby 04.08.09 at 5:27 pm

Yes, indeed, it is the CPSIA for food. Thank you for bringing much-needed attention to even more proposed nanny-state regulation.

14 Tristan Benz 04.09.09 at 1:00 am

Oh, I cannot resist leaving a comment on this one. I’ve been Twittering and writing about the need to thread these and your expertise is put most beautifully to good use here!


These laws are all connected by a common thread – diminishing our authority and handing it directly over to an ever-growing BIG Brother (apparently, we parents, farmers, etc. don’t know best what’s “best for us” anymore…). It may be interesting to take a look at which committee(s) passed CPSIA and whether or not these same, exact folks will be responsible for putting HR875 and NAIS under the same…er…. scrutiny?… that has led to the nightmare disaster that IS CPSIA. I encourage all citizens to consider it’s a lot easier to get involved BEFORE these “parallel” cases hit the committees’ big “thumbs up” than it is to try and amend (as we have seen with CPSIA), after the fact.

I predict the sponsors of HR 875 (isn’t the wife of the head of Monsanto on the committee for at least one of these? I need to look that up…) are likely not going to have such a la-dee-dah time, as Farmers and those who are all about the local food movement are not exactly… uninvolved in their communities… unwilling to roll up their sleeves and get their hands dirty!

It may be that a nation of small shopkeepers will generally just rush about wondering how to comply and fold like a cheap suit (well, not ALL, as you well know – but enough to divide and conquer an industry – just wait until August, America, when a wave of businesses that cannot afford the regulations of testing by “government approved 3rd party” AND labelling portions of CPSIA take FULL effect, close their doors – the domino effect won’t be pretty… note, as we watch the U.K. predict their own “summer of rage” – what will the response be by Americans when they realize “by feel” what our government has done via CPSIA, to destroy producers for our economy, here in America?! Oye!)…ah, but I digress… to finish the sentence… FARMERS do not fold like cheap suits!! And, I might add, most of them have no need to actually go out and BUY their pitchforks, Washington!

When are our “public servants” or “representatives” going to hear us? Actually, let’s play Devil’s advocate and say they are hearing us…and choosing to ignore our voice…if that were the case, what could possibly bring them comfort in doing so? What might they know that we do not? This climate of fighting our government – of having to raise our voices until we are hoarse – is not a climate that breeds answers and the prevalence of cool heads in a crisis.

Surely, our legislators can appreciate the need to slow down – stop the “rush jobs” in congress and listen to the “weigh in” that is growing by the day? Heck, it’s easier to gather our feedback by searching hashtags on Twitter than it is to read a single sentence in the Stimulus bill (not that one was actually ver read ;-)!!!

Should more citizens want to start using the web (instead of being used by the web, wasting time on all sorts of sites), to communicate their will to our public servants, I’ve posted a convenient little list at www DOT voiceofwethepeople.blogspot.com/2009/04/twitter-your-public-servants-list-for.html and a note there that I hope will help those who have concerns about having to learn “newfangled technology” like Twitter to get going! Twitter is faster than a phone call, direct, powerful,…the power of mass media without the censorship (yet – Mother Earth News just ran a piece indicating a bill is taking shape that is designed to give the president control over the INTERNET – ugh! Google word combo Mother Earth News President control over internet and read that one!).

Great feature!

Kind Regards,
Tristan Benz
Maiden America

15 Tristan Benz 04.09.09 at 1:24 am

See what happens when I comment in the wee hours of the night – I mean Mother Jones – here’s the link! http://seattletimes.nwsource.com/html/nicolebrodeur/2008976520_brodeur03m.html

16 Pelly 04.09.09 at 9:48 am

This kind of thing actually did kill two small businesses in Nova Scotia — Peninsula Farms, a small firm selling excellent yoghurt, and The Golden Goat, a family business selling goat cheese at the Farmer’s Market. Neither business ever sold a bad batch of food, but the provincial government closed both down by requiring them to follow the same procedures used by huge corporations, which would have cost them more than they could afford. Now the only yogurt available in Nova Scotia is that Astro crap that contains aspertame.

17 Patrick 04.09.09 at 3:24 pm

Richness from the Huffington Post:

The bill’s sponsor denounces a shadowy libertarian conspiracy:

DeLauro says she has been told that the disinformation campaign “was a libertarian operation somewhere in the country, but we’re trying to figure it out.”

In the meantime, she sent a letter to all of her colleagues explaining what the bill does and is planning a more public campaign to clear the air. She has marshaled organic farming organizations in her defense.

So, we should be concerned that an unnamed “libertarian operation” is spreading disinformation about this bill. But, we should not be concerned that the chairwoman of the House Agriculture Appropriations Subcommittee is “marshaling” farming organizations to defend her bill? I’m sure that by “marshaling” support, she means, “persuading through reasoned textual analysis,” rather than say, “making implied threats to reduce subsidies and aid to targeted groups of farmers”.

After all, those “libertarian operations” (I guess she means bloggers) have far more power to warp public opinion on agriculture than the congresswoman who controls federal appropriations for farm subsidies.

18 Vines & Cattle 04.10.09 at 12:51 pm

Remember, when they outlaw small farms, only outlaws will have small farms.

Great stuff, far more eloquent than my own meager attempts to articulate my feelings on this matter.

19 no name 04.11.09 at 8:45 pm

all i have to say about this is
1st- socialism
2nd- communism

i cant believe my eyes when it comes to this topic.

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