What is Happening with the Leahy Bill? A New Action Alert

At one point we almost lost—it’s still touch and go—but there is some good news to report.

Senate Majority Leader Harry Reid (D–NV) attempted a procedural maneuver last week—a unanimous consent agreement to bring the Food Safety Modernization Act (S. 510) to the Senate floor with Leahy’s original bill (S. 3767) and Sen. Diane Feinstein’s BPA amendment attached for consideration. ANH supporters will appreciate the irony of this. We were fighting tooth and nail against the Leahy bill, a dagger aimed at natural food and supplement producers, but have supported the Feinstein amendment aimed to get BPA out of water bottles. The choice, however, was clear. It was much more important to stop Leahy than to win on Feinstein.
Sen. Tom Coburn (R–OK) objected to Reid’s proposed unanimous consent agreement, raising concerns relating to the financing of the bill. The Food Safety Bill is stalled at this point, although it is always possible that Coburn and Reid will work out their disagreement behind the scenes, setting the stage to bring it to the Senate floor.
Meanwhile, Leahy’s bill still exists on its own, since the effort to attach it without changes to the Food Safety Bill failed. But there is some good news to report. Thanks to all the messages opposing the bill that have poured in—that is, thanks to your efforts the Judiciary Committee amended it.  Click here to send our new Action Alert.
The new language now fines or jails for up to ten years “any person who knowingly [adulterates or misbrands food or supplements] with conscious or reckless disregard of a risk of death or serious bodily injury.” This is a big improvement! If interpreted correctly by the FDA, it means that a producer cannot be threatened with a long jail term simply for citing leading university scientific research in its advertising.
The amended language is an important victory. Let’s give Senator Leahy credit for making the change. We spoke to the senator’s office this week, and there is no doubt that he considers himself a supporter of natural health, as demonstrated by his opposition to GMO and his writing the organic farm bill. We wish we could now support his bill, but we still can’t.
Why not? The language, even as amended, leaves wiggle room—it does not require that any actual harm or death occur. It only speaks of a vague “conscious or reckless disregard of a risk of death or serious bodily injury.”  It would be too easy for the FDA to claim anything it wants to claim about what this bill is really saying.  The FDA likes to intimidate. A ten-year jail term is a powerful weapon of intimidation if misused, and we think it is likely to be misused.
The real problem with attaching long jail sentences to the terms “adulteration” and “misbranding,” especially the latter, is that these terms have been so distorted by the FDA.
To our ears, “adulterated” means that it doesn’t meet good manufacturing practices, that the food itself is somehow tainted or injurious to health, or contains an ingredient that presents a significant or unreasonable risk of illness. And “misbranded” suggests deliberate and harmful misstatements about a product.
But as interpreted by the FDA, a food or supplement may be “adulterated” if some vague FDA rule is deemed by the FDA not to have been followed. “Misbranded” can mean that the producer makes a completely true statement about the product but without FDA permission. A cherry producer who cites peer-reviewed scientific research from prestigious universities on the health benefits of cherries would, in FDA-speak, have engaged in “false” and actionable “misbranding” which suddenly turns the cherries into drugs. Producers, of course, have the right to take cherries through the new drug approval process!
Until Congress fixes these interpretations of “adulteration” and “misbranding,” extreme care needs to be taken in legislating long jail terms connected to them. In the case of Leahy’s bill, more amending is needed. For such draconian jail terms to apply, the bill should require both Leahy’s new language (“conscious or reckless disregard of a risk of death or serious bodily injury”) and the actual subsequent occurrence of death or serious bodily injury.
And there is another problem with the Leahy bill that the recent amendment doesn’t change. The Leahy bill, if passed, will be attached to the Senate Food Safety Bill. It will then go into conference to be melded with the House Food Safety Bill. The House bill also has long new jail terms, but applies them to any so-called adulteration or misbranding without requiring “conscious or reckless disregard of a risk of death or serious bodily injury.”  It would be the easiest thing in the world to meld the two bills by dropping the language that Senator Leahy has just added to his bill.
Keep this in mind: the Leahy bill almost certainly came into existence because new long prison terms were intentionally kept out of the Senate Food Safety Bill. Who is it that wants them back in so badly that the Leahy bill had to be created at the last moment? Although it’s a speculation, this may trace back to Congressman Waxman, the chair of the House Commerce Committee, which has jurisdiction over food safety. If there are jail terms in the Senate bill, Waxman would be expected to fight hard to remove the new qualifiers in order to get his version of the bill adopted—the version that would give the FDA a huge new club with which to threaten and intimidate natural health producers.
Do others agree with us that there are risks to passing the amended Leahy bill? Yes. Sen. Orrin Hatch (R–UT), a champion of natural health, has issued a statement for the record on the bill: “I believe this bill could have potential negative ramifications on the food and dietary supplement industries. One of those concerns would be the over-criminalization of some violations that could affect the affordability and accessibility of certain food and dietary products.”
We are very pleased that, thanks to your actions, the Leahy bill has been amended and much improved. We also recognize that the odds of it passing have now improved—but it is still a bad bill, even amended. We must keep the pressure on to defeat it. We have changed our Action Alert to reflect the change in the bill.