Your Farmer Behind Bars?

What S510 Could Do

By Stanley A. Fishman, Author of Tender Grassfed Meat
There are many reasons to oppose S510, the so-called “Food Safety” bill that will come up in the Senate after the election.
It will do nothing to improve actual food safety, relying almost totally on burdensome paperwork.
It will drive small farmers out of business, because they do not have the resources to comply with the crushing burden of meaningless paperwork that will be required.
The paperwork will have to be done to the satisfaction of regulatory agencies that are heavily influenced by the large agricultural companies, who will be able to use the government to destroy their smaller competition. This has happened before, when the adoption of paperwork-heavy HAACP standards led to the closing of most of the small meat processing plants in the nation. Of course, their business was taken by the giants, and most American meat is packed at huge plants owned by a handful of large companies. And there are more meat contamination outbreaks than ever before.
It will give the FDA the power to control every aspect of how crops are grown. The FDA favors genetically modified crops, pesticides, chemical disinfectants and preservatives, and radiating produce. The FDA would have the power to force these industrial methods on every farmer in America.
But perhaps the worst thing S510 would do is create criminal penalties that could result in 10 years in federal prison, and huge fines. People could go to prison for farming, and for selling food, or possibly even receiving food.
But surely the government of the United States of America, a country that prizes liberty, freedom, and justice, would not send people to prison for a technical violation that hurts no one?
Yes it would, and yes it has. Three people were sentenced to more than eight years in federal prison for importing frozen lobster tails that were wrapped in plastic, not cardboard.

Prison for Packaging

There is a federal law called the Lacey Act. The Lacey Act prohibits the importation of seafood in violation of foreign laws, and imposes criminal penalties for its violation.
A small group of businesspeople had been importing lobster tails from Honduras for ten years, without problems. Every shipment was passed by the FDA and Customs. In 1999 they were arrested and charged with violation of the Lacey Act. According to the government, they had violated Honduran law by packaging the frozen lobster tails in plastic, rather than cardboard. They were also accused of violating other provisions that turned out to pertain to turtles, not lobsters. These lobsters were not an endangered species.
The government sought heavy prison terms. This case was such an outrage that some of the finest lawyers and organizations in the nation came to the defense of these businesspeople, and gave them the best representation possible. The Attorney General of Honduras sent a letter to the court, stating that the resolution in question was void and had never been in effect. His letter was backed by a decision of the Honduran Supreme Court.
Since no Honduran law had been broken, since nobody could possibly be harmed by packing frozen lobster tails in plastic rather than cardboard, surely our government would drop the case?
They did not.

What about the trial judge, surely he would dismiss the case?
He did not.
Three defendants were sentenced to more than eight years in federal prison each, and fined heavily. Their business was destroyed. They were separated from their families. They lost their liberty.
They appealed their convictions. Surely the Court of Appeals would overturn this unjust conviction, and set them free?
They did not.
The three defendants appealed their conviction to the United States Supreme Court. Surely the highest court in our land, the court that is charged with enforcing the constitution, would overturn the Court of Appeals, and do justice?
They did not.
The Supreme Court of the United States refused to hear the case.

Prison for Selling Any Food the Government Considers “Adulterated”?

This “lobster tail” case has established that our Federal government will enforce a bad law. This case has also shown that the courts will not stop the government from doing so. A bad law is a threat to the freedom of everyone.
It is expected that S510 will include, as an amendment, Senate Bill 3767. The amended version of S3767 states in part that:
“Any person who knowingly violates subsection (a),(b), (c),(k), or (v) of section 301 with respect to any food and with conscious or reckless disregard of a risk of death or serious bodily injury shall be fined under title 18, United States Code, imprisoned for not more than 10 years, or both”.
The included subsections of section 301 prohibit the introduction of adulterated or misbranded food into interstate commerce, misbranding or adulterating food in interstate commerce, and receiving misbranded or adulterated substances into interstate commerce, among other things.
This means that anyone who sells, produces, or possibly even receives “adulterated” or “misbranded” food with “conscious or reckless disregard of a risk of death or serious bodily injury” could go to jail for ten years.
“Adulterated” has been defined as including any food or that is “unsafe.”
“Misbranded” has been defined as including any food that is marketed or labeled in a way that is “deceptive.”
The statute is very broad. It uses the phrase “a risk of death or serious injury.” This statute does not require a “substantial risk” for prison terms to apply.
It only requires “a risk.” Any risk.
This could mean any risk, even a one in a million risk. Even one in ten million. Even one in a billion.
All the government would have to do is show ANY possibility of death or serious bodily injury.
It is impossible to eat ANYTHING without at least having some tiny chance of death or serious injury, due to choking, allergic reaction, etc.
There is a real danger that all the government would have to do to imprison someone for 10 years is to show that they sold, raised, or even received food that the government considers “adulterated” or “misbranded,” and that they knew the government considered the food to be “adulterated” or “misbranded.”
While I hope the courts would not interpret the law that broadly, and they should not, the lobster tail case shows that we cannot rely on the courts to protect us from a bad law.

The End of Raw Milk?

How does this relate to raw milk? “Adulterated,” according to the FDA would include any substance that the FDA considers “unsafe.” The FDA considers raw milk and cream to be “unsafe.”
The FDA, on its website, warns that the consumption of raw milk can cause “serious illness.” In fact, the FDA‘s page on raw milk warns of a risk of death, as well as serious harm to health. The FDA considers ALL raw milk to be unsafe.
The FDA sent a letter to Morningland Dairy stating that their recalled raw cheese products were an “acute, life threatening danger to health.” This statement was included in the FDA letter, despite the fact that nobody has ever gotten sick from a Morningland Dairy product. The only basis for the danger cited in the letter were tests of cheese that was seized in the infamous Rawsome raid, in California. The cheese was placed in unrefrigerated coolers when seized, in the sweltering heat of a Los Angeles summer. It is unknown if the cheese was even refrigerated before being tested, seven weeks later. The tests were done by the California Department of Agriculture, SEVEN WEEKS after the cheese was seized. No samples were sent to the dairy for independent testing, as required by FDA regulations. But the FDA had no problem in relying on these tests as the basis for their letter, and for their persecution of Morningland Dairy.
These actions show what the FDA will do when they see a chance to attack any raw milk product.
The FDA has also stopped the renowned Estrella Family Creamery in Washington from selling their award winning raw cheese, claiming that the cheese is “adulterated.” Nobody has ever gotten sick from the cheese of the Estrella Family Creamery either, but that does not seem to matter to the FDA.
The persecution of the Morningland Dairy and the Estrella Family Creamery, and others, shows that the FDA will go after small raw dairy producers, even when no one has been harmed.
In addition to the “adulterated” issue, anyone who sells and markets raw milk and says almost anything about the product is in danger of being accused of selling a “misbranded” product, if the FDA considers even a single statement to be “deceptive.”
If S510 passes, would the FDA try to jail farmers who produce raw milk or cheese? I certainly hope not, but I do not want the FDA to have the power to do so.
Given the broad and vague language of the statute, any food or supplement that the government decides is “adulterated” or “misbranded” could trigger criminal penalties, if the government decides that the food or supplement carries a risk of death or serious bodily injury.
S510 must be defeated. If any part of it passes, it must be amended to remove criminal penalties and to exclude small farmers and producers.
This article is not intended to be legal advice. The proposed laws have not yet been passed, and hopefully they won’t be.
Stan Fishman is the author of Tender Grassfed Meat. His book describes in detail how to cook grassfed beef, grassfed bison, and grassfed lamb. The book follows the nutritional principles of Dr. Weston A. Price, and uses only the best natural ingredients. The book can be purchased through Amazon.com. Follow Stanley’s blog at Tendergrassfedmeat.com.

Action you can Take

If you would like to preserve America’s small farms, there is something you can do. See the Action Alert on Food Safety Modernization Act released by the Weston A. Price Foundation.
In regards to the dangers S510 poses to raw milk farmers,  see also, FDA’s Ace in the Hole by Pete Kennedy of the Farm-to-Consumer Legal Defense Fund.
Send this post to your US Senators office, directly to the legislative aid that works on agricultural or consumer protection issues. And, please share it with your friends using the share buttons, below.

FDA Says "You may not eat the food of your choice."

FDA Steps Up Enforcement Against Raw Milk

THE RAID
On April 20, two FDA agents, two federal marshals and one state trooper descended on the Kinzer, Pennsylvania farm (Rainbow Acres) of Dan Allgyer to execute an administrative search warrant against Allgyer's premises. The group set foot on the farm at 5 a.m. to conduct the inspection even thoughthe warrant called for the inspection to take place "at reasonable times during reasonable business hours." The warrant allowed the FDA agents to inspect "all portions of Rainbow Acres facility (except for the private residence located therein) and all things therein, including all equipment, finished and unfinished materials, containers and labeling therein." The warrant also called for the "use of reasonable force" to gain entry to any area the agents were authorized to search.

Later that day after the agents reported their findings to officials at FDA's Philadelphia district office, Philadelphia District Director Kirk Sooter sent Allgyer a warning letter stating that FDA had determined that "you are causing to be delivered into interstate commerce, selling or
otherwise distributing raw milk in final package form for human consumption, such distribution is a violation of the Public Health Service (PHS) Act, Title 42 United States Code, Section 264(a), and the implementing regulation codified in Title 21, Code of Federal Regulations (CFR), Section 1240.61(a)."
THE INTERSTATE BAN
The regulation [21 CFR 1240.61(a)] issued by FDA in response to a 1988 court order provides, in part, that "no person shall cause to be delivered into interstate commerce or shall sell, otherwise distribute, or hold for sale or other distribution after shipment in interstate commerce any milk or milk product in final package form for direct human consumption unless the product has been pasteurized."

The statute [42 USC 264(a)] authorizing FDA to issue the regulation prohibiting raw milk for human consumption in interstate commerce provides, in part, "The Surgeon General, with the approval of the Secretary, is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases...from one state or possession into any other state orpossession." In FDA's view all raw milk is a communicable disease and is "adulterated"; so, a product that is legal to sell under the laws of two
neighboring states is a "communicable disease" and illegal when it crosses from one neighboring state into another. The federal ban on raw milk is a prohibition on a product that is legal to sell or distribute in at least twenty-nine (29) states and legal to consume in all fifty (50).

FDA'S STRATEGY TO TARGET FARMERS
AND ACHIEVE STATE-BY-STATE BANS
In spite of the booming demand for raw milk, FDA's position has not changed. The agency is at the center of the opposition to raw milk and wants a complete ban on the product's sale and distribution. In the Chicago area,the FDA has targeted for enforcement (one at a time) twenty (20) different buying clubs the agency suspects of having obtained raw milk from

out-of-state sources. FDA has a similar strategy for the states, with the plan being to pressure one state at a time to ban raw milk sales. If the food safety legislation currently before Congress passes, FDA will have increased leverage over the states so this threat will be greater; the agency does not have the manpower to conduct the inspections mandated by the food safety bill(s) and will in effect be putting state agriculture and health department employees on the federal payroll to carry out its workload.

In taking action against farms, like Rainbow Acres, whom FDA suspects of transporting raw milk across state lines, the agency is attempting to deny the people's right to obtain the food of their choice from the source of their choice. FDA allows Vioxx, Avandia, melamine, aspartame, and
genetically modified foods on the market but is now trying to take off the market a food that has benefited human health for thousands of years.

Interestingly, there is nothing in the U.S. Constitution nor in any Supreme Court decision that specifically mentions freedom of food choice. Freedom of food choice is 'the rights issue' of the twenty-first century; ultimately, consumers will be the ones to win the fight.

RAW MILK AND YOUR FREEDOM OF FOOD CHOICE
Raw milk is at the heart of the battle for food freedom. The key to securing the right to obtain raw milk from the source of choice is to overturn the federal ban; without the ban, FDA will not be able to put the pressure on states that it currently does to make raw milk sales and distribution illegal. Efforts are being made to overturn the ban. In February of this year, the Farm-to-Consumer Legal Defense Fund filed a lawsuit in federal district court seeking a court ruling that the federal ban is unconstitutional as applied to its members and other individual plaintiffs. Congressman Ron Paul last year introduced HR 778, a bill that would effectively overturn 21 CFR 1240.61.

Readers can do their part to help by contacting FDA and asking that the
agency not harass farmers like Dan Allgyer whom the agency suspects of
transporting raw milk across state lines. John F. Sheehan, the Director of FDA's Division of Plant and Dairy Food, is the official most responsible for carrying out FDA's agenda of completely banning the sale and distribution of raw milk. Sheehan has stated: "Raw milk should not be consumed by anyone, at any time, for any reason."

TAKE ACTION
Call, fax and/or write Mr. Sheehan at the contact information provided below, telling him to leave Dan Allgyer alone. Here are some points to make:

1. FDA should respect the right of consumers to obtain the food of their choice.

2. FDA has no business trying to deny consumers the right to drink raw milk since consumption of raw milk is legal in all fifty states.

3. Consumers are perfectly capable of making food choices for themselves and their families and don't want FDA dictating what foods they should and should not consume.

4. If FDA has no choice but to "enforce the law" then the agency should advocate for overturning that law.

NOTE: FDA has never taken action against any individual obtaining raw milk for their own consumption from another State; but it is possible that FDA could interpret the ban to include prohibiting even consumers from crossing state lines to get raw milk. FTCLDF strongly disagrees with this interpretation and takes the position that people have the right to cross state lines to obtain the foods of their choice.

MR SHEEHAN'S CONTACT INFORMATION
John F. Sheehan, Director
Div. of Plant and Dairy Food
Office of Food Safety
CFSAN-FDA
Bldg. CPK-1, Rm. 3D-055
5100 Paint Branch
College Park, MD 20740
Main phone for Office of Food Safety
1-301-436-1700 (If the receptionist refuses

to put you through to Mr. Sheehan, respectfully
leave a message.) Fax 1-301-436-1700
eMail:  john.sheehan@fda.hhs.gov 

A sample letter to Mr. Sheehan can be found at 
http://www.farmtoconsumer.org/aa/sample_consumer_letter_to_sheehan_042610.pdf

Thanks,
Pete Kennedy, Esq. - President 
Farm-to-Consumer Legal Defense Fund 

http://thebovine.wordpress.com/