Constitutional provision jeopardizes sweeping food safety bill

[Recursion]

Source: Washington Post

A procedural problem is threatening to derail a landmark food safety measure passed by the Senate on Tuesday, sending congressional leaders scrambling to figure out a way to get the bill enacted into law by the end of the lame-duck session this month.

The legislation, which would give vast new authority to the Food and Drug Administration and is designed to reduce nationwide outbreaks of food-borne illness, has wide public support. The House passed a more stringent version more than a year ago, and before House leaders knew about the procedural problem, they indicated the House would accept the Senate version. President Obama has said he would sign the bill into law.

But after the Senate approved the measure, 73 to 25, staffers learned one section could violate a constitutional provision that calls for any new taxes to originate in the House rather than the Senate.

The section in question would impose fees on importers, and on farmers and food processors whose food is recalled because of contamination. If it is determined that those fees amount to taxes, it would essentially nullify the vote by the Senate. The House Ways and Means Committee decides whether the fees are equivalent to taxes.

Read more: http://www.washingtonpost.com/wp-dyn/content/article/2010/12/01/AR2010120108366.html

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I would, however, point out that while this bill does have "wide public support", it is passionately opposed by small farmers who sell directly to consumers.

[blackspade]

1. Could you explain further?

Just curious, since I like my local farmers market and would like to keep shopping there.
Thanks!

[Recursion]

2. I'll let the farmers do the talking

http://www.farmtoconsumer.org/news/news-1december2010.htm

I'm not as histrionic about the bill as these guys, but then again I'm not a small direct-to-consumer farmer and they are. The bill does present big challenges to the local food movement, and basically further industrializes our food system.

[GillesDeleuze]

3. Um, didnt the Tester amendment pass?

Meaning, unless your "small farmer" clears over $500k or sells further than 275 miles, they won't have to comply with HACCP style regulations.

[Recursion]

4. The modified Tester-Hagan amendment passed

Which did mollify some of the opponents; I'm not sure what the remaining objections are but the farmers I know are still very strongly against this. The FDA really likes to throw its weight around against small farmers already and they just don't like the idea of giving them another instrument to use.

[GillesDeleuze]

5. These cats are a little hacky..

Its hard to figure out whats in the bill when arguments like these arise in the middle of otherwise decent analysis:

The "small farms" exclusion will soon be meaningless

The Tester Amendment of the bill did manage to exclude some smaller farmers from the more tyrannical provisions of the bill. As currently stated, this would exclude small farms that sell less than $500,000 worth of food and which sell most of their food locally.

However, Senators failed to consider what's going to happen when the Federal Reserve keeps printing counterfeit money, devaluing the dollar and causing massive food price inflation. A farm that right now produces merely $100,000 worth of food (which could be a small, two-person farm) will soon find itself producing $500,000 worth of food (or more) due to the rapidly falling value of the U.S. dollar.

This is how the Federal Reserve's money counterfeiting actions will further destroy America and place small family farms under the tyranny of the FDA.

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Um. we are experiencing deflation..

[Recursion]

7. Oh, I know they're wacky

I host that website which is how I am even peripherally aware of the issue. I will say I'm glad they've gotten me in to buying locally from small farmers when possible, even if I doubt I'll ever become a real "foodie". But, yeah, there's a good mix of crazy in with the cool.

[dixiegrrrrl]

11. Thank you for that insight.

Very interesting.

[AtheistCrusader]

10. Nothing is going to happen to your local farmers market.

99% of the objections to the bill are unfounded hysteria about Codex Alimentarius, and are not based on the actual text of the bill.

There's a staggering amount of disinformation coming from small farmers on this issue, including outright lies and edited quotes from the bill. Edited as in completely re-worked.

Here's one: http://thegormleyfiles.blogspot.com/2009/10/senate-bill-510-825-billion-dollar.html

However if you look at his claim:
“Amazed that U.S. food safety regulations strangely match those of other countries? Well, Section 306 of S.B. 510 would require “Recommendations to harmonize requirements under the Codex Alimentarius.””

You find multiple problems. First up, it's section 205, not 206. Ok, that could be an error.
Then there's the implication that this is applied to domestic food rules. It isn't. EVERYTHING in section 3 of the bill applied to FOREIGN food producers that are trying to import food to the US.
Then there's the 'quote' from the bill. It isn't. Not any version of the bill I have seen used that language. Full text:


TITLE III—IMPROVING THE
SAFETY OF IMPORTED FOOD

SEC. 305. BUILDING CAPACITY OF FOREIGN GOVERNMENTS
WITH RESPECT TO FOOD SAFETY.

(a) IN GENERAL.—The Secretary shall, not later
22 than 2 years of the date of enactment of this Act, develop
23 a comprehensive plan to expand the technical, scientific,
24 and regulatory food safety capacity of foreign govern
1 ments, and their respective food industries, from which
2 foods are exported to the United States.
3 (b) CONSULTATION.—In developing the plan under
4 subsection (a), the Secretary shall consult with the Sec5
retary of Agriculture, Secretary of State, Secretary of the
6 Treasury, the Secretary of Homeland Security, the United
7 States Trade Representative, and the Secretary of Com8
merce, representatives of the food industry, appropriate
9 foreign government officials, nongovernmental organiza10
tions that represent the interests of consumers, and other
11 stakeholders.
12 (c) PLAN.—The plan developed under subsection (a)
13 shall include, as appropriate, the following:
14 (1) Recommendations for bilateral and multilat15
eral arrangements and agreements, including provi16
sions to provide for responsibility of exporting coun17
tries to ensure the safety of food.
18 (2) Provisions for secure electronic data shar19
ing.
20 (3) Provisions for mutual recognition of inspec
21 tion reports.
22 (4) Training of foreign governments and food
23 producers on United States requirements for safe
24 food.
1 (5) Recommendations on whether and how to
2 harmonize requirements under the Codex
3 Alimentarius.
4 (6) Provisions for the multilateral acceptance of
5 laboratory methods and testing and detection tech6
niques.
7 (d) RULE OF CONSTRUCTION.—Nothing in this sec8
tion shall be construed to affect the regulation of dietary
9 supplements under the Dietary Supplement Health and
10 Education Act of 1994 (Public Law 103–417).



Somehow, 'whether and how' just got left out. Amazing, huh?


This is typical of the critics. Particularly the bloggers that claim to be 'small farmers'.

[Bragi]

6. This is an incompetent legislative strategy, not a constitutional issue

Seriously, it sounds as though the people managing this legislation simply didn't know what they were doing.

Fortunately, all that is at stake here is future food safety.

Had it been something important, like a military procurement bill, I'm sure it would have been done properly.

[AlbertCat]

8. whether the fees are equivalent to taxes.

This got me to thinking...

what is a fee?
what is a tax?

It seems to me a tax is something you pay on something you own... like income, or a car, or the gas or tobacco you just bought and so now you own it.

A fee is something you pay to to belong to something, or to make yourself eligable for some service or privalage, like entering a club, or seeing a show, or being allowed to sell in a certain market.

You don't pay a tax for the right to have a car, for instance, as much as you pay it because you have a car. You pay a fee for the right to park your car in a garage, or in a metered space.


Just musing about it...



Anyway, god only knows what the legal definition of these terms are! And is being "equivalent" to taxes the same as actually being a tax?

[Recursion]

9. The insurance "mandate" in HCR is done through taxes

Though that's why I think "mandate" is the wrong word for it: we're using the tax code to incent behavior we want and disincent behavior we don't want. By that logic you might as well say we have a "mortgage mandate", since renters like me get a tax hit compared to people with mortgages.

[Thor_MN]

12. Just have the useless Tim Palenty explain it to them...

He is done ruining Minnesota and now wants to take on the US. He can very neatly explain that a FEE is not a TAX. He caused massive fee increases so that he could claim that he didn't raise taxes. Pushed costs down to the local level so that state taxes didn't have to rise. See no tax, no foul - it's just a fee.