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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

Where S. 510 is at 11:41 PM Pacific Time

congress13.jpgAccording to a variety of news sources, Senate Democrats say an error in the Food Safety bill passed Tuesday can be resolved in time to send the legislation to President Obama by the end of the year. Two senior leadership aides confirmed that the bill the Senate approved, 73-25, “inadvertently” contained tax provisions that, under the Constitution, must originate in the House of Representatives. That means the bill must be passed a second time by the Senate, giving critics such as Sen. Tom Coburn (R-Okla.) another chance to block it.”

However, “Sen. Tom Harkin (D-Iowa) remains optimistic that a procedural error wouldn’t derail the Food Safety bill that cleared the Senate on Tuesday, saying ‘nothing is going to kill this bill.'” Harkin “said Wednesday he spoke with House Speaker Nancy Pelosi (D-Calif.) and Majority Leader Steny Hoyer (D-Md.) about a plan to first pass the bill in the House, then send it back to the Senate by week’s end.”

As the world turns.

  • Gabrielle Meunier

    Can someone please talk to Senator Colburn about not delaying this bill again? Because it is my understanding that as long as Senator Coburn continues to object the Senate will be forced to burn two more cloture motions, which means 60+ hours of Senate floor time in order to pass this bill again once the House sends it back to the Senate (there is not much time left at all on the Calendar). My message to Senator Colburn, is PLEASE PLEASE let this be . . .

  • I hope the procedural error effectively stops the bill. The Senate should know better.

    Article 1, Section 7 of the U.S. Constitution states that all revenue raising measures have to originate in the House. There are many more important items for the Senate to consider.

    The simple truth is that eating food that you did not produce yourself has always been and will always be risky. If more people took a greater responsibility for what they put into their mouth companies like Monsanto would never have come into being.

    The dangers of Genetically Modified Foods, chemical pesticides, and chemical fertilizers are the poisons that everyone should be concerned with, much more so than E. coli. That is because Toxins are introduced into the food with these modern methods of agriculture. E. coi would probably have stayed harmless forever in all warm blooded animals intestinal tract if not for the introduction of toxic chemicals into their environment.

  • Gabrielle Meunier

    James, I don’t think we disagree with you that food you might produce yourself Might be more wholesome, but the fact of the matter is MOST people will continue to buy from major manufacturers and just like we need the TSA to do its job and the SEC to do its job, we need the FDA and CDC and state and local health departments guided to do their jobs better. S. 510 is about many things to improve food safety. In the current environment.

  • Gabrielle, I feel that the difference between our thought process’ is this. I believe that the individual should take responsibility for their own life, and I get the impression that you believe a persons life should be the responsibility of the Federal Government. In my mind the last thing we need is more Federal Government control.
    I would rather the FDA was never created. They have a doctrine of censorship when it comes to truthful statements about dietary supplements. Their greater agenda is to keep the masses uneducated and protect the profits of the pharmaceutical industry.
    In ALLIANCE FOR NATURAL HEALTH, et al. vs. KATHLEEN SEBELIUS, et al., the judge ruled that the FDA violated the First Amendment rights of the plaintiffs by restricting their free speech when they wished to communicate about the anti-cancer benefits of their selenium supplements. As explained by health freedom attorney Jonathan Emord who argued the case before the Court:
    “The decision… reaffirms that FDA is subject to the strictures of the First Amendment in its evaluation of health claims and it faults FDA for failing to follow that standard, holding its suppression of the selenium-cancer risk reduction claims unconstitutional.”
    “The Court concludes that the FDA… has not provided any empirical evidence, such as ‘studies’ or ‘anecdotal evidence,’ that consumers would be misled by… plaintiffs’ claims were they accompanied by qualifications. Moreover, the explanation the FDA offers to demonstrate that plaintiffs’ claims are misleading – that the claims leave out pertinent information – is not support for banning the claims entirely…”
    In truth nutritional cures can be found for nearly every major disease.The FDA however doesn’t want you to know about them.
    For instance, the March 4, 1993 issue of the New England Journal of Medicine published a clinical study showing significant reductions in LDL and improvement in the lipoprotein profile in response to moderate consumption of walnuts. Later studies revealed that walnuts improve endothelial function in ways that are independent of cholesterol reduction. Another study by the American Heart Association on April 6, 2004 showed a 64% improvement in a measurement of endothelial function when walnuts were substituted for other fats.
    When Diamond Foods, Inc. started reporting the conclusions of these and other studies on their walnut product labels and on their website the FDA responded by labeling those walnuts as drugs. That’s simply ridiculous. Here is a link to the warning letter that the FDA sent Diamond Foods: http://www.fda.gov/ICECI/EnforcementActions/WarningLetters/ucm202825.htm
    My point of all of this is that the Federal Government has become to large to have any kind of common sense or decency. I think that the issues that the FDA, CDC, TSA, etc regulate would be better handled by State and Local Governments. I am more for These United States than The United States.

  • Gabrielle Meunier

    James, I absolutely do not believe that a person’s life should be the responsibility of the Federal Government. At all. I think that is something like Communism. No. Not me! However, you seem to be alluding to the argument that brings us back to our beginning: Adams vs. Jefferson. States rights vs. Federalism/Nationalism. I believe that there is no “i” in Team. With that I believe as a Nation we are stronger if we do some things as a “whole” and not as a “part”. Food safety system, I believe is stronger if all the “parts” are tied together in the “whole”. I certainly wouldn’t want the TSA doing something completely different at my airport than other airports. They should all be strong. Look at what happened in Portland, ME airport because of the perception that the safety would be more lax there. Yikes. Together we are stronger. My state health department did a botch job as it pertained to tracking down what poisoned my son. However Oregon and Minnesota have fabulous health departments working wonders with foodborne illness detection. Together as a nation we can improve all states by pulling together and working from best practices. Gosh this applies to so many things. I can only imagine if our military was divided among State to State — what a mixed up bunch they would be!! But together they are absolutely fantastic. Do they have rules that at times don’t make sense? Heck yes, but on the whole we have a pretty decent military. TSA is getting better and better. After 911, the airline industry crumbled. Something had to be done. TSA was an extremely appropriate answer. this is not a big bad government. This is TEAMWORK. And this is what we need in FoodSafety across the U.S.
    I took a look at the FDA report you linked to. I agree with their statement about the walnuts labeling. Sorry. It is common sense to me. Republican Senator Chambliss called my Testimony “the most common sensical solution he had heard”. Perhaps my common sense is to a flaw. But I do believe the whole is better than the sum of its parts. That is my common sense speaking.

  • Hi Gabrielle. I read your testimony to the Senate Committee on Agriculture, Nutrition & Forestry. I think you have some valid points and good ideas. You are a credit to your family, your state, and your country.

    My big concern is that S. 510 is seriously flawed:

    1. FDA has more than adequate powers under existing law to ensure food safety and effectively deal with foodborne illness outbreaks. FDA has power to inspect, power to detain product and can readily obtain court orders to seize adulterated or misbranded food products or enjoin them from being sold. The problem isn’t that FDA needs more power; it’s that FDA does not effectively use the power it currently has.

    2. S.510 will give FDA extensive power to regulate food in intrastate commerce; state and local governments are more than capable of handling any problems related to food in intrastate commerce. All the major outbreaks of food borne illness involve either imported food or food in interstate commerce.

    3. S.510 will hurt our ability as a nation to be self-sufficient in food production; it has more lenient inspection requirements for foreign than domestic producers creating an unfair advantage for food imports. Giving an advantage to foreign producers will only increase the amount of food imported into this country that does not meet our domestic standards. S.510 does not address food security–the ability of a country to produce enough food to meet its own needs.

    4. S.510 will provide a competitive advantage to industrial food producers–the sector of the food system causing most of the food safety problems; the bill will impose burdensome regulations on many small businesses, a number of whom won’t have the economies of scale to comply with S.510’s requirements.

    5. S.510 does nothing to address many significant food safety problems in this country, such as those resulting from confined animal feeding operations (CAFOs), genetically modified organisms (GMOs), and various contaminants (e.g., BPA, pesticides, herbicides, etc.).

    6. S.510 The will cost $1.4 billion over 5 years. This cost does not include an additional $230 million in expenditures that are directly offset by fees collected for those activities.

    7. S.510 gives complete control over how crops are raised and stored to the FDA, an organization that favors pesticides, chemicals, GMOs, and irradiation, and would be able to force the use of those industrial methods on every farmer, thus destroying real food.

    8. S.510 would give the FDA the power to destroy the availability of raw milk and cheese.

    9 S.510 will drive small farms out of business by imposing a crushing burden of paperwork and regulations. That $500K exemption is Gross, not Net. A small family farm with just the husband and wife working can easily hit that $500K while only getting $50K Net.

    Your son became ill 2 years ago on Thanksgiving. The settlers who created Thanksgiving left their homes to seek freedom. In England, they could not practice their faith. The food they could eat was heavily restricted. They could not hunt. They had no say in the laws that governed every aspect of their lives. They were willing to leave everything they knew—the very world that was known to them—to seek freedom. They moved to a strange land. They suffered terribly. Many of them starved to death. Yet when times became better, they gave thanks for what they had.

    Our freedom is at risk—the freedom enjoyed by every previous generation of Americans—the basic human freedom to choose what we eat is in danger.

    I think that this bill is very dangerous and the ultimate power grab by our government. If they can control the food source then they control us.

    If it contained nothing but your recommendations to the Senate I would have no problem with it at all.

  • Gabrielle Meunier

    James. Goodness where to begin? First thanks for the compliment. Appreciate that. Second while I’m not an expert by any means at all, I’ll just try to touch on some of your points above.
    1) In the 2008 PCA Peanut Outbreak almost 4,000 products were recalled! Some of those companies refused to recall their products. In one case it took the FDA two weeks to fight the company that refused. This is too long to wait when people are still dying. I’d say the FDA needs a little more authority than having to wait 2 weeks to get the warrant to inspect and recall.
    3) It is my understanding that under current law, food importers have very little regulations and their products get inspected in less than 1% of aggregate import. So I’d say under CURRENT law the importers have the unfair advantage.
    4) and 9) The intent is a level playing field. Pathogens don’t just make their way to large manufacturing plants. They are everywhere in large and small. Having a food safety plan should be a requirement of all food producers, not just the large ones. Besides the Tester/Hagen Amendment took the already exceptions to the rules and expanded it. But if you say that $500,000 gross income is too small a number — some would say that their gross income shouldn’t matter but that it should be just based upon if they are producing food to be sold to the public at all.
    6) Cost. What HHS needs to do is create a mission with the new law, if passed, and then figure out a way to allocate the funding resources to best meet the demands upon the various agencies. There definitely has to be user fees. Every other professional in the US. has to pay registration fees why would food producers be exempt? Why shouldn’t they be certified like almost all other professions? Shoot you can’t paint nails without hours of training and certifications and annual registrations!
    7) I think Bill spoke to that. Very troubling yes. But this bill is not about this issue.
    8) Lived 13 years on a dairy farm. Worried me then and would worry me now to drink unpasteurized milk.
    So almost 400 years ago we had settlers who had very few choices but to survive. (Taxation without representation really would stink — sure am glad they got out of Dodge.) But several years later as they were building this nation with expanded settlements and general stores. I would imagine if the General Store poisoned the town with unsafe food due from intentional or non-intentional negligence, you can bet the town would have written a rule to slap the store owner and correct the problem to prevent problems in the future. This is what I hope S. 510 is. It can’t be perfect and it can’t cover all issues. But I do hope it can make a small dent in a safer food supply.