It’s being predicted that they’ll drive a lot of smaller operators out of business; I suppose the resemblance to CPSIA is just coincidental. [The Cape Codder]
Posts tagged as:
agriculture and farming
The great plant scientist has died at 95. Tributes: Doug Mataconis/Liberty Papers, Ronald Bailey/Reason, Coyote, Jonathan Adler/Volokh.
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Following an outcry from various sectors of the farm community, the U.S. Senate may have slowed or even broken the momentum toward federally sponsored numbering and tagging of farmyard animals. 
The upper house embraced “an amendment sponsored by Sen. Jon Tester, D-Mont., and Sen. Mike Enzi, R-Wyo., that slashes funding for the U.S. Department of Agriculture’s National Animal Identification System by one-half in the 2010 agriculture appropriations bill.” [AgWeek, Drovers] NAIS, or the National Animal Identification System, has been promoted on (among other grounds) improving “traceability” of food safety problems. Earlier coverage here, here, etc.
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Deputy Headmistress has some thoughts.
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The vote was 283-142. From the New York Times account, which quotes four named supporters of the bill and no opponents, you’d barely get any sense of why the bill might be considered controversial. But the San Francisco Chronicle, L.A. Times, Des Moines Register and Omaha World Herald have all reported on what the first-named called the “uproar among small farmers”. McClatchy’s summary confusingly suggests that farms “in part” are not covered by the bill (those already regulated by USDA won’t be subject to the FDA), but it does establish clearly why the main impacts of the bill are likely to be felt gradually rather than immediately:
The bill orders federal agencies to prepare certain food safety regulations. But these highly detailed regulations will be years in the making.
Notably, the bill gives the Department of Health and Human Services three years to establish “science-based standards for the safe growing, harvesting, packing, sorting, transporting and holding of raw agricultural commodities.” These standards could cover everything from manure control and employee hygiene to water quality.
Federal officials must also prepare regulations establishing a tracing system to “identify each person who grows, produces, manufacturers, processes, packs, transports, holds or sells” dangerous food.
More: Greg Conko, CEI, Carter Wood, ShopFloor; on the outcry from organic producers, Reuters and Taylor Blanchard/Charlotte Examiner.
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Maclean’s reports on the “thriving black market in Canada for borderline illegal, locally produced foods,” from raw dairy products through illicit cured meats available to those with “the right social network”. “You’ve got to hook up with someone who’s got a hook-up. It’s like buying drugs,” says food writer Chris Nuttall-Smith. “Illegal eggs taste amazing.” (& welcome Hit & Run readers).
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Eye-opening account by Carolyn Lochhead in the San Francisco Chronicle of some of the collateral damage in the farm-safety panic. For fear of bacterial contamination, farmers are now increasingly obliged to act rigorously against any sign of wildlife, whether frogs, squirrels, birds or mice:
…ponds are being poisoned and bulldozed. Vegetation harboring pollinators and filtering storm runoff is being cleared. Fences and poison baits line wildlife corridors.
Even organic techniques of surrounding crops with hedges of pest-resistant vegetation are being foiled by buyers’ demands that an entirely sterile ring be installed instead.
Auditors have told [farmer Ken] Kimes that no children younger than 5 can be allowed on his farm for fear of diapers. He has been asked to issue identification badges to all visitors.
Full article here.
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- UK libel law still casting a chill on free speech around the world [Floyd Abrams, Index on Censorship via Ken at Popehat, Kirk Hartley]
- Much talked about Ramesh Ponnuru op-ed on Constitution and government consideration of race [NYT]
- “EFF Busts Bogus Internet Subdomain Patent” [Electronic Frontier Foundation]
- Why you can’t get low-cost health insurance, part LXVII: legal pressure on insurers to cover behavioral autism treatment [NLJ, Detroit Free Press]
- New Jersey disbars reparations lawyer Ed Fagan, New York having already done so [Black Star News, JTA, Newark Star-Ledger, NJLJ]
- Author Wendell Berry: force NAIS animal-tagging on every small farmer, and you’ll have to call the cops on me [Food Renegade; more on NAIS and small producers, Farm-to-Consumer Legal Defense Fund; earlier here, etc.]
- Indiana enacts what Gov. Mitch Daniels calls nation’s strongest law protecting teachers from lawsuits [WANE, WTHR]
- Town of Kenner, La. says it’s learned its lesson from being sued and will ticket drunken bicyclists even if they’re badly hurt in accidents [nine years ago on Overlawyered]
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Per CQ Politics, “A House committee approved a sweeping food safety overhaul bill Wednesday after tweaking it to address most remaining GOP concerns, including the bill’s effect on small food producers. …Republicans had expressed concerns about the effect of [a provision increasing frequency of inspections] on small producers, but were assuaged by language adopted as part of a manager’s amendment that would allow the FDA to modify that inspection schedule for some producers at its discretion.” An annual fee per establishment has also been cut from $1000 to $500. More: WSJ. Earlier here, etc.
By this point there have been emphatic denials from many official quarters that the new food safety bills getting serious attention in Congress will pose any undue burden to small, localized, or specialty food enterprises (see discussion here, here, here, here, here, etc.). And yet even one prominent advocate of the new legislative push, food poisoning attorney Bill Marler, is expressing unease about the effects on small enterprise of one of the major bills, HR 759. Among other provisions, it would finance some government safety efforts by slapping a $1,000 fee on all “food facilities”, farmers alone excepted. More on the bill: Northeast Organic Farming Association, Food Law Blog. And: lawmakers at markup indicate willingness to cut fee from $1,000 to $500 (Naomi Starkman, Civil Eats; for a quick guide to other food blogs predictably differing from many views found in this space, see this post at Bitten).
- Pennsylvania Department of Labor launches probe on whether reality-TV show “Jon & Kate Plus 8″ violates child labor laws [Pennsylvania Labor & Employment Blog, Hirsch/Workplace Law Prof via Ohio Employer's Law]
- Dispute over termination of Navy aircraft contract called “Jarndyce v. Jarndyce of U.S. legal system” [WSJ Law Blog]
- Medical tourism, cont’d: “It appears that ‘we’re easier to sue’ is the uniquely American defense to medicine outsourcing.” [KevinMD]
- New Oklahoma law protects farmers from neighbors’ suits complaining of nuisance from farm activity [Enid, Okla., News]
- For unusually bad advice on how to save GM and Detroit, Michael Moore as usual comes through [Popehat]
- Lawyer reprimanded for telling party she should be cut up, shipped overseas [NJLJ, ABA Journal]
- Call for reform of UK laws banning press interviews of jurors after verdict [Times Online first, second articles and commentary]
- Coming soon: campaign against depiction of smoking in Raymond Chandler books, Edward Hopper paintings [CEI "Open Market"]
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Texas lawyers are seeking discovery against hog-raising giant Smithfield Foods to determine whether a swine operation it partly owns in Mexico might have contributed to the death of a Harlingen woman in the H1N1 flu outbreak. “Mexican health officials have found no connection between the swine flu virus and the pig farm. Nevertheless, residents there have long blamed the farming operation for a variety of illnesses, UPI reported.” The lawsuit might seek $1 billion. [Brownsville Herald, May 12]
- At Reason “Hit and Run”, Damon Root deems a certain website “indispensable” [accolades file]
- Montgomery Blair Sibley, colorful lawyer for the “D.C. Madam” and a figure much covered on this site, has new book out [Doyle/McClatchy]
- Although Indian tribal litigators attacked it as “disparaging”, the Washington Redskins football team can keep its trademark, for now at least. “My ancestors were both Vikings and Cowboys. Do I have a course of action?” [Volokh comments]
- “Is Patent Infringement Litigation Up or Down?” [Frankel, The American Lawyer]
- Maryland high court dismisses autism-mercury lawsuit [Seidel, Krauss @ Point of Law]
- Chrysler dealers are lawyering up against the prospect of being cast off [WSJ Law Blog]
- “Should doctors who follow evidence-based guidelines be offered liability protection?” [KevinMD]
- Obama proposes $1.25 billion to settle black farmers’ long-running bias claims against the U.S. Department of Agriculture [AP/Yahoo]
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The controversial farm-animal tracking proposal NAIS seems to be marching ahead at a rapid pace toward mandatory adoption. La Vida Locavore: 
“During the hearing, I never once heard that there was any distinction between large commercial, small commercial selling direct to consumers, homesteaders or hobbyists. All I ever heard was that everyone wants a mandatory NAIS. For everyone.” The tagging and paperwork would apply not only to four-footed livestock, but to poultry, fish, shellfish “and some crustaceans. Just about any animal you might find on a farm except dogs, cats and rabbits.” Earlier here and here.
After you fully discount the chain-email false alarms, you’re left with plenty of well-founded concerns about how small producers would fare under the various food-safety measures before Congress. Farm World:
The public outcry has mostly focused on the Food Safety Modernization Act of 2009 (House Resolution 875), but Kastel [Mark Kastel of the Cornucopia Institute] pointed out that of all the food safety bills currently before Congress, the Food and Drug Administration (FDA) Globalization Act of 2009 (HR 759) appears to be the one that’s most likely to be voted on, possibly with elements of the other bills incorporated [emphasis added].
Sponsored by Congress’ most senior member, Rep. John Dingell (D-Mich.), HR 759 amends the Federal Food, Drug and Cosmetic Act to include provisions governing food safety. The bill provides for an accreditation system for food facilities, and would require written food safety plans and hazard analyses for any facilities that manufacture, process, pack, transport or hold food in the United States.
It also calls for country of origin labeling and science-based minimum standards for harvesting fruits and vegetables, as well as establishing a risk-based inspection schedule for food facilities. …
The [Cornucopia] institute claims the preventative measures [on handling of food on farms] are designed with large-scale producers and processors in mind and “would likely put smaller and organic producers at an economic and competitive disadvantage.”
The American Farm Bureau Federation opposes Dingell’s bill, arguing that improving existing inspection and import methods would be preferable. [Earlier entries in series here, here, and here]
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[Third in a series on the possible effects of proposed federal food safety legislation on small/local foodmakers and farmers. Earlier coverage is here and here; and see related post on animal-tracking proposals]
- Could the outcry be having an effect? Until now, Rep. Rosa DeLauro (D-Ct.) has repeatedly insisted that backyard and kitchen-table producers have nothing to fear from her bill, H.R. 875, the proposed Food Safety Modernization Act, because they do not engage in “interstate commerce”.
Many observers pointed out that under U.S. Supreme Court precedent, an exceedingly broad range of agricultural and food activity (right down to the growing of grain with which to feed oneself or one’s animals) has counted as within the bounds of “interstate commerce” reachable by federal regulation.* Now, at the end of a Huffington Post piece sympathetically relaying DeLauro’s views, there comes an “Update” nodding toward the courts’ practical application of the “interstate commerce” concept and reporting that DeLauro’s staff is promising “clarifications” of the bill’s reach, perhaps even “technical corrections”, to be ready “in the next few weeks”. - When those corrections and clarifications appear, one crucial question will be whether they include any de minimis provisions exempting small, local, or informal producers and sellers (of course, these entities might continue to face stringent state or local regulation). As it stands now FSMA, like CPSIA before it, is notable for its lack of de minimis exclusions, as well as its failure to prescribe “scale-appropriate” principles (”tiering”, streamlined reporting, etc.) by which entities that deal in less than industrial volumes might be given the benefit of simpler and less onerous rules.
- Given the stated views of the advocacy groups behind FSMA, I very much doubt that a revised version will in fact exempt producers of food intended for consumption within one state only. Even if it does, however, the law will still cover many persons like Harold Gundersen, who sells food from his Southwest Michigan farm at two suburban-Chicago farmer’s markets and in doing so manages to have legal contact with three states in all:
“We’re highly regulated by state government and federal government,” he said. … [Gundersen] pays $65 twice a year to an inspector from DuPage County, who comes up to Michigan to inspect the apple butter and cider that he sells.
Gundersen is indignant at that last requirement because he doesn’t even process the apple butter and apple cider — he takes his apples down to an Amish man in Indiana who seals them in cans and jugs. Because that facility is already visited by Indiana inspectors, Gundersen sees no reason for a DuPage inspector to take a second look.
“There is nothing for her to look at,” Gundersen said. “She looks at my jars and says, ‘OK, I’ll sign this stuff.’”
Through much of the country — in most of the big cities of the Northeast and Midwest, for example — food grown within a radius of (say) 100 miles will often have crossed state lines.
- FactCheck’s lullaby of reassurance on the subject contains the following passage aimed at readers who might be perceiving FSMA as a far-reaching power grab by the federal government, or something like that:
The bill has 41 cosponsors** and has been endorsed by major food and consumer safety organizations, including the Center for Science in the Public Interest, Consumer Federation of America, Consumers Union, Food & Water Watch, and The Pew Charitable Trusts. Food & Water Watch is a nonprofit organization that advocates for clean water and safe food and is headed by a woman who used to work for Public Citizen, the consumer group founded by Ralph Nader.
Well! If a bill has 41 cosponsors, it must have been well vetted, right? (CPSIA had 106). And its backers include not only Consumers Union and Consumer Federation of America — both instrumental in bringing us the CPSIA debacle — but also a group headed by an alum of Nader-founded Public Citizen. It’s not as if Public Citizen was the acknowledged leader of the Washington coalition that pushed for CPSIA and has defended it ever since, right? Oh wait. Center for Science in the Public Interest? That’s the outfit that’s called for federal regulation of the use of salt in foods, and its busybody litigiousness has long furnished copious material for this site. Pew Charitable Trusts (is it now OK for charitable foundations to support legislation?) has long had its hand in a hundred activist causes. And so forth. This is not reassurance; to coin a phrase, it’s de-assurance.
- Deputy Headmistress: “I would believe these consequences were ‘unintended’ if I didn’t see the same consequences from government action over and over again.”
- No, I don’t agree with the chain-email theories that insist that Monsanto, the giant agribusiness firm, is masterminding the push for this law. (Or the counter-push against it, depending on who you talk to. Maybe both!). Since the company’s name is always coming up, however, here’s a link to what the company’s own spokesman had to say on the lefty site Crooks and Liars, which was not quite what I expected (though I’m not sure what I did expect).
- Brian Doherty writes about the furor at Reason (with comments here) and John Schwenkler also weighs in at his blog. And in the comments section of our initial post, check out what “Pelly” has to say about yogurt in Nova Scotia.
*Of course, it’s possible that a statute might not grant the federal regulator as much authority as courts would be willing to uphold as constitutional. HR 875 incorporates by reference the FDA’s current definition of “interstate commerce”. I’m not an expert in this area, but various documents suggest that the FDA already asserts much authority over items and processes whose production or use does not cross state lines.
**Among the 41 co-sponsors are such figures as Rep. Jan Schakowsky (D-Ill.), who as a co-sponsor and defender of CPSIA has been ferociously unsympathetic to distress cries from small businesses arising from that law.
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But there’s a romantic underground doing it anyway.
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