"Misguided" Food Safety Modernization Act of 2009 blasted

There continues to be negative chatter about the Food Safety Modernization Act of 2009. Check out this opinion piece from Hans Bader Examiner.com.

A misguided bill, the Food Safety Modernization Act of 2009, may shut down farmer’s markets and “drive out of business local farmers and artisanal, small-scale producers of berries, herbs, cheese, and countless other wares, even when there is in fact nothing unsafe in their methods of production,” warns legal commentator Walter Olson at Overlawyered.
Ignorance about the law’s broad reach (and how it will be construed by the courts) has thwarted opposition to the bill, which will likely pass Congress. For example, a newspaper claims the bill “doesn’t regulate home gardens.”

TK: I would certainly hope the legislation doesn't regulate home gardens, but the author begs to differ....the article continues....

The newspaper probably assumed that was true because the bill, like most federal laws, only purports to reach activities that affect “interstate commerce.” To an uninformed layperson or journalist, that “sounds as if it might not reach local and mom-and-pop operators at all.” (The bill’s sponsor, Rep. Rosa DeLauro, has sought to forestall opposition to her bill by falsely claiming that that “the Constitution’s commerce clause prevents the federal government from regulating commerce that doesn’t cross state lines.”)
But lawyers familiar with our capricious legal system know better. The Supreme Court ruled in Wickard v. Filburn (1942) that even home gardens (in that case, a farmer’s growing wheat for his own consumption) are subject to federal laws that regulate interstate commerce.

TK: Ah, yes, the Wickard v. Filburn decision....

Economists and scholars have criticized this decision, but it continues to be cited and followed in Supreme Court rulings, such as those applying federal anti-drug laws to consumption of even home-grown medical marijuana. Indeed, many court decisions allow Congress to define as “interstate commerce” even non-commercial conduct that doesn’t cross state lines — something directly at odds with Rep. DeLauro’s claims


TK: Roger Hart takes on the same issue "Intent may be right but bill could be gone" from the Port Clinton News Herald. From the piece:


There have been rumors flying around Internet blog sites for some time now claiming that this bill is attempting to do everything from outlawing organic farming to shutting down small farm operations, to making it illegal to grow a backyard garden without a permit, to kidnapping the Lindbergh baby. Well, I have done some research on the bill and would like to pass on a little of what I've learned.
According to a post on the blogsite Crooks & Liars, these are a few of the things that the bill does NOT do:
It does not cover foods regulated by the USDA (beef, pork, poultry, lamb, catfish.)
It does not establish a mandatory animal identification system.
It does not regulate backyard gardens.
It does not regulate seed.
It does not call for new regulations for farmers markets or direct marketing arrangements.
It does not apply to food that does not enter interstate commerce (food that is sold across state lines).
It does not mandate any specific type of traceability for FDA-regulated foods (the bill does instruct a new food safety agency to improve traceability of foods, but specifically says that recordkeeping can be done electronically or on paper).

The post then goes on to state: "There is no language in HR 875 that would regulate, penalize, or shut down backyard gardens or 'criminalize' gardeners; the bill focuses on ensuring the safety of food in interstate commerce."

TK: The author is dismissing these Internet rumors --- but wait.

After reading this, I fully expected to find very little credible evidence that this bill would indeed seek to regulate backyard gardens but ,as I researched a little deeper, I found that the above blog post was maybe a bit oversimplified and now I'm not so sure.
The problem for me comes in the form of the language used in the bill to define the "food production facilities" it seeks to regulate. The bill defines such facilities as "any farm, ranch, orchard, vineyard, aquaculture facility, or confined animal-feeding operation." Now, granted, a home garden is not a farm and a couple backyard apple trees do not constitute an orchard but, since the bill does not specifically define the terms "farm" or "orchard," who's to say?

I'm sure the intent of the bill, at least at this time, is not to regulate small farms or backyard gardens, but, as stated by Deborah Stockton, executive director of the National Independent Consumers and Farmers Association, "intent has no bearing on the language in the law." We do know that one of the intents of the bill is to institute a system of "total traceability" on all food stuffs in order to better monitor food-borne illness. Down the road, in the midst of another spinach or peanut "crisis," this could be interpreted to mean just about anything. "Do you mean to tell us, Mr. Hart, that you fertilized these tomatoes with bovine excrement?"
Based on this, and the fact that we need one more government agency to fund like we need the return of $4-a-gallon gas, my recommendation is to oppose the passage of this bill.


TK: Can Rep. DeLauro salvage popular opinion of the backyard vegetable gardeners regarding the Food Safety Modernization Act? At this point, it appears to be an uphill climb, but she may not need that special interest to help speed passage of the bill.