Senate Bill 510: a threat to your free choice of food?—part two

By Susan Johnson
Copy Editor

S.510, just passed as H.R. 2751,  the Food Safety Modernization Act, passed by the House Dec. 22, as of press time was not signed by President Barack Obama, but he is expected to sign it soon. However, a veto is possible if citizens voice their protests. The bill has been called by some “the most dangerous bill in the history of the United States of America.” Is the new legislation unfairly maligned, or are there legitimate reasons for concern?

Doreen Hannes is an avid student of the effects of World Trade Organization Free Trade Agreements on the livelihoods of U.S. citizens since the establishment of WTO and ratification of NAFTA in 1994-95. She has been a full-time volunteer advocate for independent agriculture since 2005 and is a well-respected leader in the national movement to halt the National Animal Identification System (NAIS), now known as ADT (Animal Disease Traceability). She has written extensively on the topic of NAIS and other topics affecting the consolidation of agriculture. She is a regular guest on The Power Hour and Derry Brownfield Show and other talk radio shows. Hannes, writing on on Dec. 7, 2010, described the FDA shutdown of Morningland Dairy, a tiny Missouri farmstead cheese plant with 30 years of experience and no record of complaints.

Morningland Dairy—harbinger of things to come?

The problems began June 30, 2010, when several agencies conducted a raid on Rawesome Food Club in the Venice section of Los Angeles. Several hours were spent rummaging through the place and confiscating about $11,000 worth of product. The U.S. FDA took some material, and other items were taken by the California Department of Food and Agriculture.

All the seized products were apparently sent to CDFA, though no one formally confirmed this. The report of contamination of Morningland Dairy cheese came from CDFA. The test results given to Morningland by CDFA showed reports for two types of cheese.

But Hannes found it “extremely odd” that “the lab test report fails to cite the name of the company in the product description. Secondly, there are no batch numbers for the cheese. These indicate the production date of food and help isolate potential problem areas. Thirdly, while they cite two types of cheese, there are two photocopies of the same 1-pound block of Morningland Dairy Garlic Colby…

“The invoices indicate that Rawesome… purchased cheese in October and November of 2009, and May and June of 2010. The invoices reveal Rawsome purchased Morningland Dairy Hot Pepper Colby in half-pound blocks, but there was no picture of this cheese with the CDFA lab report. The majority of cheese purchased by Rawesome from Morningland Dairy was goat cheese, which runs under Morningland’s Ozark Hills label. All cheeses invoiced to Rawesome were in half-pound packages, and Morningland had sold no ‘Morningland Dairy Garlic Colby’ to Rawesome at all. So where did this 1-pound block of Garlic Colby in the CDFA picture come from?…

“Denise Dixon of Morningland Dairy contacted the CDFA for more information on the tests conducted of Morningland Dairy or Ozark Hills products seized from Rawesome…. She was told that only two samples of Morningland products were taken and that no samples of Ozark Hills (Morningland’s goat cheese line) were collected. So, they sampled a type of cheese that was never sold to Rawesome (Morningland Dairy Garlic) and had none of the most recent order of Ozark Hills goat cheese in their inventory.”

In going through the inventory of seized product, written by the CDFA, there are six items that fit Morningland Dairy’s cheese descriptions (none identified by brand). The product that was tested by CDFA and never sold to Raw some is listed twice and identified by a number “5” (number of packages? weight?). Some of the seized products have a weight associated with their description, and some do not. Two other entries on CDFA’s inventory list “Morningland Dairy,” but on both of those, “Morningland” is crossed out, and one of them (item 80) is the Garlic Colby never sold to Rawesome. Next to that entry is written “54”–which means what? No explanation is given.

Dr. Stephen Beam, head of Rawesome’s dairy division, stated that there were no other samples of Morningland or Ozark Hills product collected by CDFA. Hannes says this “just doesn’t make sense. The FDA also seized product from Rawesome. Its report clearly states that it took ‘10 subs (16 oz.) of Morningland Dairy Raw Milk Cheese-Mild Cheddar from Mountain View, Mo.’”

“At best,” Hannes concludes, “the documentation here is terribly sloppy, and at worst, seriously inaccurate. Add to that the fact that all the legal proceedings—the issuance of the search warrant that allowed the seizure of the cheese and the issuance of the Missouri Milk Board’s order to destroy the cheese—have taken place in secret, and the fact that no illnesses have been attributed to Morningland cheese, one must question the motives of these agencies.”

The Tester-Hagen amendment

In another article about S. 510, Hannes expressed her concerns about the Tester-Hagen Amendment, which, she says, “was included to dupe those who think it will stop small farmers and processors from being put right out of business; it will only slow down the demise of some small farms.

“Then,” she warns, “it came to light that a Constitutional issue that had been staring all of us in the face was present. The Senate did not pick up H.R. 2749, which passed the House in July of 2009; instead, they took up their own monster in S.510. They also began revenue generation in the Senate (Section 107 of the bill), which is expressly forbidden by the Constitution.”

Speaking on the Derry Brownfield Show, Hannes further explained: “The Tester Amendment has a $5,000 cap on what is to be included in the exemptions. You have to submit records for the last three years verifying that you sell to customers within a 275-mile radius. Everything would come under the supervision of NAIS.”

Another commentator, Mike Adams in Natural News, said: “The Tester Amendment, which was finally included in S. 510, excludes farmers who sell less than $500,000 worth of food each year from the more onerous paperwork and compliance burdens described in the bill. But this dollar amount is not indexed to inflation, meaning that as the U.S. dollar continues to lose value due to the Federal Reserve counterfeiting machine running at full speed (more ‘quantitative easing’, anyone?), food prices will continue to skyrocket—and this will shift even small family farms into the $500,000 sales range within just a few years.

“In fact, a single-family farm with just four people could easily sell $500,000 worth of fresh produce a year right now, even before inflation. Remember, $500,000 is not their profit, but rather the gross sales amount. The profits on that might be only $50,000 or even less.” He adds that successful small farms that are doing well and would like to expand will refuse to hire any more people or expand their operations to stay small; therefore, no new jobs will be created.

Wickard vs. Filburn—a look back in history

Few people today may recall the 1942 case of Wickard vs. Filburn, in which the U.S. Supreme Court dramatically increased the power of the federal government to regulate economic activity.

In 1941, Roscoe Filburn, a farmer in the Dayton, Ohio, area, was growing wheat to feed his chickens. As Wikipedia explains: “The U.S. government had imposed limits on wheat production, based on acreage owned by a farmer, in order to drive up wheat prices during the Great Depression, and Filburn was growing more than the limits permitted. Filburn was ordered to destroy his crops and pay a fine, even though he was producing the excess wheat for his own use and had no intention of selling it.

“The Supreme Court, interpreting the United States Constitution’s Commerce Clause under Article 1, Section 8 (which permits the United States Congress ‘To regulate Commerce with foreign Nations, and with the Indian Tribes;’) decided that, because Filburn’s wheat growing activities reduced the amount of wheat he would buy for chicken feed on the open market, and because wheat was traded nationally, Filburn’s production of more wheat than he was allotted was affecting interstate commerce, and so could be regulated by the federal government.

“The Agricultural Adjustment Act of 1938 limited the area that farmers could devote to wheat production. The stated purpose of the act was to stabilize the price of wheat in the national market by controlling the amount of wheat produced. The motivation behind the Act was a belief by Congress that great international fluctuations in the supply and demand for wheat were leading to wide swings in the price of wheat, which were deemed to be harmful to the U.S. agricultural economy. The Supreme Court’s decision states that the parties had stipulated as to the economic conditions leading to passage of the legislation…

“In July 1940, pursuant to the Agricultural Adjustment Act (AAA) of 1938, Filburn’s 1941 allotment was established at 11.1 acres (4.5 ha) and a normal yield of 20.1 bushels of wheat per acre. Filburn was given notice of the allotment in July 1940 before the Fall planting of his 1941 crop of wheat, and again in July 1941, before it was harvested. Despite these notices Filburn planted 23 acres (9.3 ha) and harvested 239 bushels from his 11.9 acres (4.8 ha) of excess area.”

Procedural history

“The Federal District Court ruled in favor of Filburn. The Act required an affirmative vote of farmers by plebiscite in order to implement the quota. Much of the District Court decision related to the way in which the Secretary of Agriculture had campaigned for passage: The District Court had held that the Secretary’s comments were improper. The government then appealed to the Supreme Court of the United States, which called District Court’s holding against the campaign methods which led to passage of the quota by farmers a ‘manifest error.’ The court then went on to uphold the Act under the Interstate Commerce Clause.

The Court’s decision

“The intended rationale of the Agricultural Adjustment Act was to stabilize the price of wheat on the national market. The federal government has the power to regulate interstate commerce through the Commerce Clause of the Constitution. In Filburn the Court unanimously reasoned that the power to regulate the price at which commerce occurs was inherent in the power to regulate commerce.

“Filburn argued that since the excess wheat he produced was intended solely for home consumption, it could not be regulated through the interstate Commerce Clause. The Supreme Court rejected this argument, reasoning that if Filburn had not used home-grown wheat, he would have had to buy wheat on the open market. This effect on interstate commerce, the Court reasoned, may not be substantial from the actions of Filburn alone, but through the cumulative actions of thousands of other farmers just like Filburn, its effect would certainly become substantial. Therefore, Congress could regulate wholly intrastate, non-commercial activity if such activity, viewed in the aggregate, would have a substantial effect on interstate commerce, even if the individual effects are trivial… The issue was not how one characterized the activity as local, but rather whether the activity ‘exerts a substantial economic effect on interstate commerce’…

Wickard arguably marked the end to any limits on Congress’s Commerce Clause powers. The Court’s own decision, however, emphasizes the role of the democratic electoral process in confining the abuse of the Congressional power, stating that, ‘At the beginning Chief Justice Marshall described the Federal commerce power with a breadth never yet exceeded. He made emphatic the embracing and penetrating nature of this power by warning that effective restraints on its exercise must proceed from political rather than from judicial processes.’”

What about GMOs and HACCP?

In an article for, posted Aug. 6, 2010, Steve Green wrote, “Monsanto says it has no interest in the bill and would not benefit from it, but Monsanto’s Michael Taylor, who gave us rBGH and unregulated genetically modified (GM) organisms, appears to have designed it and is waiting as an appointed Food Czar to the FDA (a position unapproved by Congress) to administer the agency it would create—without judicial review—if it passes. S. 510 would give Monsanto unlimited power over all U.S. seed, food supplements, food and farming.

“In the 1990s, Bill Clinton introduced HACCP (Hazardous Analysis Critical Control Points) purportedly to deal with contamination in the meat industry. Clinton’s HACCP delighted the offending corporate (World Trade Organization ‘WTO’) meat packers since it allowed them to inspect themselves, eliminated thousands of local food processors (with no history of contamination), and centralized meat into their control. Monsanto promoted HACCP.

“In 2008, Hillary Clinton urged a powerful centralized food safety agency as part of her campaign for president. Her adviser was Mark Penn, CEO of Burson Marsteller, a giant PR firm representing Monsanto as a progressive client and globalization as an area of expertise, introduced early versions of S 510.”

Summary of arguments

In a general statement connecting the bill to the health reform legislation, Secretary of Health & Human Services Kathleen Sibelius said: “The mission of the Department of Health and Human Services (HHS) is to protect the nation’s health and provide essential human services… it is a core responsibility of HHS, through the Food and Drug Administration (FDA), to ensure the food we eat is safe. Toward that end, I am firmly committed to working with my colleagues at the Department of Agriculture to achieve the President’s goal of upgrading and strengthening our food safety system; restoring trust in the FDA as the leading science-based, regulatory agency in the world; and fulfilling our obligation to the American people to ensure that the food they purchase and serve to their families is safe to eat. For more information, please visit”

Mike Adams, an author in Natural News, before the bill was passed, stated, “This law would also give the U.S. government the power to arrest any backyard food producer as a felon (a ‘smuggler’) for merely growing lettuce and selling it at a local farmer’s market.”

Is this true? Doesn’t the law apply to interstate commerce? But until the new bill was passed, the law did not affect individual farmers or manufacturers, did it? Then what happened with Morningland Dairy and Roscoe Filburn?

Under the original bill, and still in force in the version passed by Congress, American food producers would be required to register their facilities with the U.S. government. The feds want a database of food growers, which would facilitate the process of inspection.

As stated in the bill itself, Sec. 102. Registration of Food Facilities. 18(a) Updating of Food Category Regulations, Biennial Registration Renewal. Section 415(a) (2120 U.S.C. 350d(a)): “The registration shall contain an assurance that the Secretary will be permitted to inspect such facility at the times and in the manner permitted by this Act.”

Again, before the bill passed, Adams wrote: “What this language shows is that the point of registration is so that government agents can conduct surprise inspections of food facilities. At least 4,000 new FDA agents will need to be hired if this bill becomes law, greatly expanding the FDA’s agent presence in much the same way the TSA expanded over the last few years.

“Once an FDA inspection occurs, if the government believes the food grower is producing anything that might pose a risk to the public (and note carefully that “belief” is the only thing required, not actual scientific evidence of harm), that food grower is then ‘suspended’ from producing food. After that, they get dragged into a kangaroo FDA court where a panel of FDA officials then decide their fate. This takes place with no due process, no attorney, no Constitutional protections and no rights whatsoever.”

Finally, two quotations, one from each side of the debate:

“If the people let the government decide what foods they eat and what medicines they take, their bodies will soon be in as sorry a state as are the souls of those who live under tyranny.”—Thomas Jefferson, 1776

“There is no right to consume or feed children any particular food; there is no generalized right to bodily and physical health; there is no fundamental right to freedom of contract.”—U.S. Department of Health & Human Services and U.S. Food and Drug Administration, 2010

From the Dec. 29-Jan. 4, 2011 issue

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