Alert! Food Safety Bill Bad for Supplements (Ties U.S. to Codex) and Gives FDA Control Over Farming

August 25, 2009
Category: Uncategorized

The Senate’s “Food Safety” bill is better than the House’s in some important respects. For example, it drops the draconian jail sentences and fines for vague infractions including paperwork errors. But it includes a Codex provision that absolutely must be removed by amendment in order to protect free choice about supplements. Please take action to help ensure that this bill does not get through the Senate in its present form. Because of the importance of this bill, we will devote the entire newsletter to it.

A reminder: The Codex Alimentarius Commission was formed as a joint project of the World Agricultural Organization and the World Health Organization, both created by the United Nations. Codex’s stated mission is to protect the health of consumers and to ensure fair practice in food trade.
The problem is that Codex is dominated by Europe and Europe is putting into place an increasingly restrictive regime on supplements. Under this regime, a  supplement  containing more beta carotene than a couple of carrots is deemed dangerous, as is a supplement containing more lycopene (0.5mg) than might be found in a day’s consumption of tomatoes. Just to make it sillier, lycopene as a food additive is approved without limit by the world body Joint Expert Committee on Food Additives (JECFA) despite the European limit on supplement use.
These are European rules; they are not yet Codex rules. But because Europe has the dominant voice in Codex, it is quite likely that these same standards will be embraced by Codex. Why not? Even the US government, as presently represented by the anti-supplement FDA, would readily go along with these standards.
Why, by the way, does the FDA agree with the Europeans? We think the Agency’s judgment is warped by the fact that it depends so heavily on drug approval fees, and it also takes the view that unapproved supplements are competing with the approved drugs, even though absolutely no health claims by supplement producers are allowed. In other words, we think that the FDA has been captured by commercial drug interests, and that the FDA would welcome a chance to use Codex to shut down the supplement industry as we know it.
What does the Senate bill actually say about Codex? In section 306 (c) 5, it commits the U.S government to an objective of international “harmonization” of food and supplement standards through the Codex Alimentarius process.  The actual words of the bill instruct government agencies to develop “Recommendations to harmonize requirements under the Codex Alimentarius.”  This presumably means harmonize all countries, not just the U.S., but certainly includes the U.S.  This is more than the elephant getting its nose under the tent.  This almost amounts to a pre-endorsement of Codex standards, not yet completed, by the U.S Senate.  Clearly this provision should be deleted from the bill and the sooner the better.
In previous years, we might have waited until the bill was scheduled to send out the alert. But this year, bills are being brought to the floor with no notice and passed immediately. So, although we don’t know whether S-510 will be brought to the floor in September or held back until after health “reform” has been dealt with, we think that immediate action is called for.
Remember that when the House’s “Food Safety Bill” was brought up, Members of the House were given approximately an hour and a half to review the bill before having to vote on it. It failed on first passage but was passed only a day later.
This procedure of rushing a bill to the floor before even Representatives’ staffers can read it, is intended to stop grass roots organizations such as this one from informing the public or organizing any action. The result: not even Representatives, much less the public, know what is being voted on, especially since bills are becoming longer and longer.
A particularly egregious example of hiding something really important in a long bill: the original Bush bail-out bill (TARP) presented to Congress in September of last year contained a buried provision vastly increasing the power of the Federal Reserve Board to control bank lending and the economy. How many Representatives or Senators knew about this provision? We would guess only a handful. Even those who knew probably had no idea what a momentous change in our financial system they were approving with no disclosure, review, or even mention anywhere.
Returning to the Senate and House “Food Safety” bills, it is important to review again what was so bad about the House bill. Here is a summary of the highlights only:
(1) Increases jail sentences (from three to ten years) and fines (to $100,000 for individuals and $7.5 million for corporations) for “adulterating” or “misbranding” food or supplements.
(Please keep in mind that what the FDA calls “adulterating” or “misbranding” completely differs from what any user of the English language would think. You will recall how the FDA enjoined cherry producers from citing Harvard and other good scientific research on the health benefits of cherries. The FDA said that citing prestigious, peer-reviewed science was an example of illegal misbranding.
Equally as illogical, under the “Food Safety Act”, even minor paperwork violations could, per the FDA, represent adulterating. Clearly an amendment is called for here: either adulterating and misbranding need to be defined rationally or these penalties need to be graduated. Selling truly adulterated food is one thing.  Violating unclear, obscure and unreasonable FDA rules that do not result in any harm to the end product is quite another thing.
Note that the fines apply to food or supplement operations large or small. A $7.5 mm fine would put a small operation out of business but hardly knick a big agri-business company. That is exactly why the legislation was written in this way: to intimidate the small fry and make things comfortable for the big businesses with whom the FDA likes to partner.)
(2) Imposes new fees on food operations of all sizes.
The new fee, $500, is identical for all, from the very smallest to the largest. Farms are exempt, but if the farmer makes some sauerkraut, he or she pays. And all the fees collected from the tiny operations represent another nice subsidy for the agri-businesses.
(The FDA should not be  charging “user fees” at all. Fees paid by drug companies now account for a third of the Agency’s budget, and the more dependent the Agency becomes on industry money, the less independent it will be. If the FDA is to function as an unbiased watchdog, its employees should be paid through our taxes, not by the businesses it is supposed to regulate impartially.)
(3) Imposes record keeping, hazard analysis, food safety plans, and more on farms as well as businesses, small and large.
(4) Gives FDA control of farming standards and practices.
(Maybe the Department of Agriculture knows something about farming. The FDA certainly does not. But this legislation gives the FDA the right to mandate farming practices. Given the FDA’s cozy relationship with big business, where will this lead? Will we wake up to discover that only large farming operations are able to comply with whatever new rules the FDA applies? We should also keep in mind Thomas Jefferson’s much quoted observation: “Were we directed from Washington when to sow, when to reap, we should soon want bread”. This bill does indeed give the FDA the power to control how to grow, fertilize, and harvest.)
(5) Permits the FDA to Conduct Random, Warrantless Searches.
(Some legislators who would be appalled by the idea of random, warrantless searches of individuals seem to think it is fine for a “business”. But it is not. It is a weapon of intimidation. Moreover many farmers run their farms from their homes. Do we really want FDA inspectors, who are often armed, intruding on farms and small businesses without either cause or notice?)
(6) Ignores the recommendations of a government report on the failings of the FDA and the urgent need for reform at the Agency.
A few years ago, the FDA itself asked the House Subcommittee on Science and Technology to prepare a report on its operations. Among the report’s findings:

  • “The FDA cannot fulfill its mission because its scientific base has eroded and its scientific organizational structure is weak.”
  • “The FDA cannot fulfill its mission because its scientific workforce does not have sufficient capacity and capability.”

The report goes on in a similar vein and also states that, partly because of the above:
The FDA does not have the capacity to ensure the safety of food for the nation.
(There it is in a nutshell. The FDA needs a top to bottom overhaul before it can carry out its present job. In particular, it needs to become scientifically capable, not just reliant on what drug companies and agri-businesses tell it. But are the report’s recommendations about strengthening the FDA’s scientific capabilities being implemented? No. These recommendations are being ignored. Instead the FDA is being given vast new powers and responsibilities which will spread it even thinner and make it even less able to do its job.)
The good news about the Senate bill (S-510) is that it drops the new jail sentences and fines and also the fees. Of course this does not mean that the provisions won’t end up in the final Senate bill. Senate leaders know that these provisions have been passed by the House. So they may be planning to keep them out of the Senate bill for now, but bring them to the Senate later as part of a bill that has been “reconciled” with the House. For that reason, it is important to oppose these provisions as well in our message to the Senate.
And, keep in mind, the Senate bill still specifically grants the FDA authority to control agricultural methods and practices. It also retains the warrantless searches but at least requires that there be some reason for them.
We have a much better chance of getting this bill changed in the Senate than we did in the House.  PLEASE LET YOUR SENATORS KNOW THAT YOU OPPOSE THIS BILL AS WRITTEN. Amendments are clearly needed. The chances of changing this bill in the Senate are much better than in the house, because agricultural interests are stronger there. So please don’t delay. Take Action Now.

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