FDA Issues First New Rules Under Food Safety Modernization Act: More Protection or More Control?

Last Wednesday, the FDA released details on the agency’s first new rules under the Food Safety Modernization Act (FSMA). The FDA now has the authority to detain food products for 30 days simply because it has “reason to believe” they pose a threat to food safety. Signed into law by President Obama this past January, the FSMA gave the FDA new authority to oversee facilities that grow and sell the nation’s produce, including the power to issue mandatory food recalls. As we have seen the FDA’s overzealous raids on raw dairy farms even prior to the enactment of the FSMA, this raises concerns for increased abuse of power.

First new rule from FDA press release:

Beginning July, the FDA will be able to detain food products that it has reason to believe are adulterated or misbranded for up to 30 days, if needed, to ensure they are kept out of the marketplace. The products will be kept out of the marketplace while the agency determines whether an enforcement action such as seizure or federal injunction against distribution of the product in commerce, is necessary.

With this, the FDA declared it no longer needs evidence to seize food that may be contaminated, thereby ignoring the Fourth Amendment. Based on mere suspicion that a food product has been contaminated or mislabeled, it now can hold the food for 30 days while it then looks for evidence.

The Fourth Amendment states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Of course they have already been doing this illegally when you look at the raids on raw dairy farms. This law now expands their authority to conduct these types of raids.

A Summary of the FDA’s new powers under the Food Safety Modernization Act:

  • Mandatory recalls: under the law, the FDA now has the power to issue mandatory food recalls in cases of suspected outbreak. The FDA had the authority to issue only voluntary recalls, prior to the new law, except in cases of contaminated infant formula.
  • National food safety standards: the new law also directs the FDA to create national food safety standards for growing, harvesting and transporting produce. This is the first time that a universal standard will be created. Previously, there was a patchwork of standards varying by state and grower.
  • Electronic food tracking system: facilities that grow and sell produce now must keep track of where their products go through an electronic tracking system. The system is meant to help the FDA and other public health officials more quickly identify where potentially contaminated food has been shipped and isolate which foods need to be recalled.
  • Facilities must take charge of preventing outbreaks: the new law requires food manufacturing and processing facilities to take pre-emptive action to prevent contamination, including creating written safety plans that identify both potential contamination risks and steps taken to prevent contamination.
  • More on-site inspections: the FSMA increases the frequency of FDA on-site facility inspections. Previously, it was one inspection in every five to 10 years. Now, it’s one inspection every three years.
  • FDA oversight of food imports: prior to the passage of the law, the FDA had little to no authority over produce imported into the U.S. from other countries. (Currently, imported fruits and vegetables account for 60 percent of the fresh produce sold in the U.S.) The FSMA gives the FDA authority to require foreign foods to meet the same safety standards as produce grown in the U.S. The FDA can also conduct on-site inspections of overseas facilities that export to the U.S. and block foods from entering the country that come from facilities that refuse to allow these inspections to take place.

What does this all mean and how does this effect local and organic farmers? By slapping voluminous new paperwork and reporting requirements on small farmers (who aren’t even the source of the food problem to begin with), they are forcing farmers out of business and causing agriculture jobs to be shifted to Mexico and elsewhere.

When you hear American farmers saying they are going to “scale back” their businesses because they “don’t want to get too successful” (to fall under the authority of expanded FDA tyranny over the food supply), you know the country is headed for economic disaster.

America was once founded on ideas of opportunity and that hard work is supposed to pay off. People who invest in their small businesses and grow them should be rewarded, not punished. But now, thanks to the U.S. Congress and the Food Safety Modernization Act, small farmers who find even a little bit of success selling food (because selling $500,000 worth of food is still a very small scale operation, and the actual profit on that might only be $50,000 for a full year of work) are about to find themselves punished for being successful.

My take on all this is that the FSMA was passed to: give the FDA more control so they can regulate our food supply; force small organic and local farmers out of business; and give them authority to conduct recalls and raids on non-FDA approved foods they could not previously control.

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