Keep Food Legal submitted comments yesterday on behalf of members and supporters like you in two controversial FDA rulemakings that could reshape the food landscape for decades to come.
The proposed rules stem from passage in 2011 of the Food Safety Modernization Act ("FSMA"). The rules would increase the regulatory burden around produce safety and around what the agency refers to in sterile fashion as "preventive controls for human food."
In our comments to the agency, Keep Food Legal urged the FDA to reject the proposed rules for three reasons.
First, we argued that the proposed rules would hurt small farmers, other small food entrepreneurs, and their customers. Second, we argued the proposed rules, despite their great cost, are unlikely to make food any safer. Third, we argued the proposed rules violate the U.S. Constitution.
1) The FDA should reject the proposed rules because they would hurt small farmers and small food entrepreneurs
The two main concerns we've heard voiced by small farmers and their supporters over the past year with regard to these proposed FSMA rules are 1) that farmers would have to comply with rules that are completely inappropriate for their business(es) and 2) the cost of complying with the proposed rules would be prohibitive. Examples of these concerns abound. For example, the low ceiling for gross sales under the proposed rules—especially the inclusion of sales not subject to the FSMA—would ensnare many small farmers. Excessive composting rules would make compliance particularly difficult for small organic farmers (whether or not certified organic by the USDA). And water sanitation requirements would hurt still more farmers.
The FDA has heard these arguments against adoption of the proposed rules from hundreds of small farmers in listening sessions around the country over the past year. It is incumbent upon the agency not just to listen to these legitimate concerns. The FDA should reject these proposed rules outright because they would impose costly, discriminatory, burdensome, and inapt new requirements on small farmers.
2) The FDA should reject the proposed rules because they are expensive and unlikely to make food safer
As we note in our comments, the FDA says the specific purpose of the proposed FSMA rules is to “reduc[e] the public health burden of foodborne illness.” But according to the FDA's own data, these rules would likely only make a tiny dent in foodborne illness.
Based on Keep Food Legal's analysis, the proposed rules--if implemented with an entirely unprecedented degree of precision—-could under the FDA’s own best-case scenario reduce incidences of foodborne illness only by up to 5.7 percent. Using more realistic FDA estimates, that already meager percentage drops to somewhere between a likely reduction in foodborne illnesses of between 3.7% and 5.7%. All that for just a billion dollars per year!
3) The FDA should reject the proposed rules because they are unconstitutional
The U.S. Constitution’s Commerce Clause empowers Congress alone to regulate interstate and foreign commerce. The Tenth Amendment to the Constitution, part of the Bill of Rights, leaves to states and individuals alone decisions pertaining to purely intrastate commercial activities. Consequently, Keep Food Legal is as confident that the FDA has no authority to regulate purely intrastate commercial activity pertaining to food as we are that the FDA has plenary power to regulate interstate commerce. That means the FDA has absolutely no authority under the Constitution—and certainly under the Food Safety Modernization Act—to regulate farms and other food businesses that operate entirely within any one state. In addition to protecting individual rights and respecting the power of a state to regulate farms and other food businesses that operate solely within that state, this constitutional limit on the FDA’s authority has an important practical effect. After all, even if Congress and the FDA view the agency’s authority under the Constitution as more expansive than we do, individual farmers and entrepreneurs (primarily) and the local and state officials they elected (secondarily) know what is the best approach for maximizing both the safety and profitability of these farms and other food businesses.
For the foregoing reasons, Keep Food Legal urged the FDA, in comments we filed yesterday, not to adopt its proposed FSMA rules.
Read the complete comments we submitted here. And read Keep Food Legal executive director Baylen Linnekin's 2012 law review article on the history of America's flawed food safety regulations, The Food-Safety Fallacy: More Regulation Doesn't Necessarily Make Food Safer, here. Also be sure to check out other comments and testimony we've offered at the federal, state, and local level--on issues from food trucks to soda taxes to food marketing--here.
In addition to filing our own comments on the proposed FSMA rules, Keep Food Legal also signed on to comments by the Farm and Ranch Freedom Alliance--a fellow nonprofit advocacy group--that provide a more detailed critique of the FSMA's neutered provisions for exempting small farms.
Who should decide what the term "all natural" means in the context of food?
Last week Keep Food Legal executive director Baylen Linnekin appeared on AirTalk with Larry Mantle on KPCC Radio, Southern California's NPR affiliate, to discuss that controversial question. Appearing alongside Linnekin was Stephen Gardner, head of litigation for the Center for Science in the Public Interest, a group that often supports increased food regulations.
In recent years, class action lawyers and groups like CSPI have sued food companies over all natural claims. There's also been a renewed push of late by CSPI and others to force the FDA to define the term "all natural" once and for all.
But that would be a grave mistake, Linnekin told AirTalk host Mantle and his listeners.
The failures of the USDA organic program should stand as a warning to those who believe the federal government can apply some sort of one-size-fits-all definition to "all natural" foods, Linnekin told AirTalk listeners.
Even those who support mandatory labeling can't seem to agree how to define the term, or whether a particular use of the term is or isn't acceptable.
During the AirTalk segment, for example, CSPI's Gardner defined "all natural" as "something you could make in your own kitchen." Is he right? Maybe so. But he may first want to speak with his boss.
In 2010, CSPI head Michael Jacobson wrote that a product that contains chicken, salt, and water--something one can make quite easily in their kitchen--is not all natural.
"[W]hen you combine the three what you get is chicken that is anything but 'all natural,'" Jacobson claimed. Why? Because CSPI detests 100% natural salt, which Jacobson referred to as "probably the single most harmful ingredient in the food supply."
Unlike the FDA, the USDA has defined the term "all natural." Does CSPI support the USDA's definition? That also apparently depends who you ask.
Gardner said during last week's AirTalk segment that he supports the USDA definition of "all natural," stating that the agency "has defined it, and has defined it in a way that I think adequately summarizes how consumers view 'natural.'"
Yet Gardner's boss, CSPI head Jacobson, wrote in the same 2010 posting on the unnaturalness of chicken, salt, and water that "unscrupulous poultry producers, with the regrettable acquiescence of the U.S. Department of Agriculture, have drained the meaning from those words"--referring to the term "all natural."
So it turns out it's not so easy to define "all natural."
Linnekin used the example of soy milk, one food that's often touted as "all natural" but that might not fit a definition of "all natural" should the FDA force one on consumers and food producers, to drive home that point to AirTalk listeners.
"You can't really milk a soybean," Linnekin noted. "Is that natural?"
What do we suggest as an alternative to one single FDA definition of the term "all natural"? Instead of an FDA standard that could take a decade to develop and would likely be little more than a wink and a nod to special interests, Keep Food Legal urges the FDA to “[o]pen up all food labels to any and all statements that aren't demonstrably false.”
We're not the only ones who think the FDA should stay out of the "all natural" game. Prof. James McWilliams pointed out a few more problems with a potential FDA definition of the term "all natural" in a recent column at Forbes.
A San Francisco city council proposal to enact a two-cent-per-ounce tax on all soda sales in the city would raise the price of a six-pack of soda by $1.20 if adopted. Not surprisngly, the tax hike has been met with stiff resistance from many, including San Francisco Chronicle columnist Debra J. Saunders, who sought Keep Food Legal's opinion on the issue for a recent column blasting the proposal:
Who pays for this tax? Soda drinkers, of course.
Large businesses and tony restaurants won't feel much of an impact from a soda tax, said Baylen Linnekin of the antiregulation group Keep Food Legal. It's the "the small business, entrepreneurs, the taco trucks" that will pay. Linnekin believes that higher soda taxes will push sugar-lovers to buy other sweets, also high in calories.
In addition to her column, Saunders had some very kind words for Keep Food Legal in a recent Chronicle blog post, too.
Keep Food Legal, San Francisco
While working on my Sunday column on Supervisor Scott Wiener’s proposed sugary beverage tax, I chatted with Baylen J. Linnekin, executive director of Keep Food Legal.
In California, [attacks on food freedom include] the foie-gras ban, San Francisco’s Happy Meal ban, and other nanny state laws from politicians who think they know what’s best for you.
BTW, KFL is also big on promoting food trucks, and hell bent on ending federal agriculture subsidies that distort American eating habits. For example, Linnekin suggests that if S.F. pols want to decrease sugar consumption, they should pressure Washington to end ethanol subsidies and sugar price supports.
If you’re interested in KFL’s thinking, you may want to read this piece about California’s crackdown on food. I like the group’s emphasis about getting big government out of the kitchen and the stomach.
We're grateful to Saunders for the kind words. And we'll keep you posted on the status of San Francisco's proposed tax.
Keep Food Legal's lawsuit against the administration of New York City Mayor Michael Bloomberg, which we filed last week in the wake of the city's failure to comply with our many requests for information about food policymaking under the Bloomberg administration, has earned some fantastic print coverage--in the form of a New York Post op-ed that appears in today's paper.
The spectacular op-ed, City Hall Legislating in the Shadows, was written by Jeff Stier of the National Center for Public Policy Research.
It's a fantastic read. Here's a snip:
Bloomberg stands accused of not letting the public see how his team made various nanny-state laws and regulations from his (failed) soda ban to his rules against donating food to city-run homeless shelters.
A consumer group, Keep Food Legal, last week sued the Bloomberg administration for allegedly failing to comply with a series of Freedom of Information Law requests going back more than a year. These sought documents from the Mayor’s Office and the Health Department touching on which groups, individuals and outside agencies helped develop the city’s most restrictive food laws and regulations — from the mandatory calorie counts on menu boards to the trans-fat ban, as well as reportedly pending proposals to restrict salt in restaurants and limit happy hours.
The Health Department belatedly offered to provide some information, but the Mayor’s Office completely failed to comply with requests. Yet the state Freedom of Information Law allows only very narrow exemptions to requests like Keep Food Legal’s.
Keep Food Legal’s action, if successful, will send a message to the next [mayoral] administration: You’re free to listen to the most radical outside advisers—but you can’t do it in secret.
Want to support this litigation and our nationwide efforts to defend food freedom? Please donate today.
Keep Food Legal executive director Baylen Linnekin is speaking at two events at Yale University this week. On Thursday, Linnekin will give a talk at Yale Law School thanks to law school chapter of The Federalist Society--the flagship Federalist Society chapter. His lecture will focus on his research into the American constitutional origins of food freedom and the applicability of those founding ideals today.
Here's the official description of the talk from the law school's website:
Please join the Yale Federalist Society as we welcome Baylen Linnekin, Reason Magazine contributor and executive director of Keep Food Legal, a Washington, D.C. nonprofit that advocates in favor of food freedom—the right to grow, raise, produce, buy, sell, share, cook, eat, and drink foods of one's own choosing. Mr. Linnekin will be discussing "Food Freedom," including how American colonists' conception of food rights influenced the Revolution and the Founding and what that tells us about food rights today.
Linnekin will also moderate a roundtable discussion on Saturday at Yale University on the field of Food Law & Policy in the legal academy as part of a two-day Yale Food Systems Symposium. The roundtable Linnekin is moderating features several law faculty from around the country whose teaching and scholarship focus on Food Law & Policy. You can learn more about the roundtable and symposium here.
Where can you catch Keep Food Legal next? Learn more about our upcoming happenings (and peruse our archives) at our Events page.