SANITY: How to see through the nonsense of S.510 - "Food Safety Modernization Act" - UPDATEDSubmitted by samadamscw on Tue, 11/16/2010 - 19:51
The following was posted as a comment in an older thread on the topic, but since it may have fallen off the radar, and there is renewed interest in this legislation, I thought I'd reproduce an edited version of my call for sanity in its own thread.
Just Added: a section on 21 CFR 1.227 which contains the regulations used as guidance to enforce the present Act and which are NOT amended by this bill (S.510)
Also, to answer a question specifically to any other sections (like 105 of the bill) and how they apply, please see this comment: http://dailypaul.com/node/149518#comment-1582648
I really wish people would read the bill and the law which it is amending before they spout off.
Submitted by samadamscw on Thu, 09/09/2010 - 05:53
Present Code - 21 USC Chapter 9
The law as currently before the Senate:
(in particular, please go to page 123, sec. 102 Registration of Food Facilities)
Issue #1 - Scope
Here's the deal: this bill is an amendment to the Food and Drug Safety Act.
Therefore, unless this bill changes the scope of the original act, then this bill is limited by the scope of the original act. Furthermore, words in this bill, being in amendment to present law, may not be common words, but specifically defined legal terms, whose definitions, if they exist, will be found in the present law..
That means, you can't just read a bill and presume that every word you read is used with only the common everyday contemporary meaning in mind. You HAVE to look in the definitions section of the bill, and the present law, to determine if anything is a specifically defined term. Such a term may not be as broad or as general as the everyday meaning.
This is CRITICAL when determining the scope of a law.
All too often, people fly off at the mere mention of a new law, and how Congress is taking authority it doesn't have, before they even read the damned thing.
And this bill does not change the important limiting sections out-lined below
So here goes:
The Food and Drug Safety Act, and thus this bill, as well as its House counterpart, are limited by the following sections of the present law:
21 USC § 350d. Registration of food facilities
(1) In general
The Secretary shall by regulation require that any facility engaged in manufacturing, processing, packing, or holding food for consumption in the United States be registered with the Secretary.
Okay, so far, this does NOT include growing food either by a company, organization, or individual as in a garden or home farm.
Let us look at the next important part:
§ 350d (cont.)
For purposes of this section:
(1) The term “facility” includes any factory, warehouse, or establishment (including a factory, warehouse, or establishment of an importer) that manufactures, processes, packs, or holds food. Such term does not include farms; restaurants; other retail food establishments; nonprofit food establishments in which food is prepared for or served directly to the consumer; or fishing vessels (except such vessels engaged in processing as defined in section 123.3(k) of title 21, Code of Federal Regulations).
So, this specifically does NOT include "farms; restaurants; other retail food establishments; nonprofit food establishments in which food is prepared for or served directly to the consumer; or fishing vessels..."
Looks to me like the "Facility Registration" process, which is the lynch pin to all the rest of the authorities of the original act, and this bill in amendment thereto, DOES NOT apply to whom the scaremongers say it does. It in fact, specifically says it DOES NOT apply to them. There is no question about it. The law is VERY clear in this case.
Issue #2 - Licensing
Additionally, there is yet another important subsection which drives the nail in the coffin of the idea that this bill will somehow require all farms and gardens to be licensed by the HHS Secretary:
§ 350d (cont.)
(c) Rule of construction
Nothing in this section shall be construed to authorize the Secretary to require an application, review, or licensing process.
Any questions? Is it possible to misunderstand that extremely clear, succinct and to the point sentence?
Issue #3 - Constitutional Authority
The big kicker to all of this, is that the entire original Food and Drug Act is even more limited in scope than what you see here. There are general definitions for the Act as a whole, and in them you will find a definition for "interstate commerce" upon which the power to regulate is found in the Constitution, and thus is the authorization for the original act:
§ 321. Definitions; generally
(b) The term “interstate commerce” means
(1) commerce between any State or Territory and any place outside thereof, and
(2) commerce within the District of Columbia or within any other Territory not organized with a legislative body.
So "interstate commerce" which this entire original act, and this bill amending it are drawing their constitutional legitimacy on, is clearly defined to exclude intrastate commerce except in those areas where Congress has exclusive jurisdiction: D.C. and unorganized Territories. If you grow your own food, even if you sell it, but only within the same State, this act and bill DO NOT APPLY TO YOU.
Issue #4 - Applicability
And finally, we see that "person" is clearly an artificial "legal" person by this definition:
§ 321. Definitions; generally
(e) The term “person” includes individual, partnership, corporation, and association.
Accepted rules of construction used by the Supreme Court, indicates that the use of the term "individual" here is not to mean each and every American, but to mean the actual man or woman who is or may be responsible for, or the one who acts on behalf of other "legal persons" such as an officer of a corporation, or an employee acting in its name or on its behalf. This is done so a real live, flesh and blood man or woman can be held responsible for certain actions, or compelled to comply with certain laws even though the laws work on artificial persons.
This definition really isn't necessary to see how limited this act and thus this bill are because that is taken care of up above, but it is illustrative of what is really the kicker for most laws that people mistakenly believe apply to them, when they are written specifically to regulate artificial entities.
(it would be unconstitutional and a direct violation of your natural and inalienable rights to require you to comply with this act if you were not acting in some legal capacity for an artificial entity. Legal fictions have no natural rights, because they are not natural. You do. So the law only applies to you as a real man or woman, to the extent that you are involved somehow with a covered legal person and only with respect to that involvement)
Issue #5 - Regulations
To be sure, the devil is always in the details. And some will invariably point to the Code of Federal Regulations as a source of much of where innocuous law goes bad. And in many cases, I agree. But in this case, the regulations only serve to further back up my position that this law has VERY limited scope, and it does NOT apply to what the fearmongers are claiming.
http://www.accessdata.fda.gov/scripts/cdrh/cfdocs/cfcfr/CFRS... (hit the link for 21 CFR and then in the search box enter 1.227- sadly there is no direct link)
(2) Facility...The private residence of an individual is not a facility. Nonbottled water drinking water collection and distribution establishments and their structures are not facilities.
Looks pretty clear to me. Your personal garden or family farm are NOT faciliites. Thus the original Food and Drug Act do NOT apply to you, and since S.510 does not change the scope of this act, then it doesn't apply to you either.
(3) Farm means a facility in one general physical location devoted to the growing and harvesting of crops, the raising of animals (including seafood), or both. Washing, trimming of outer leaves of, and cooling produce are considered part of harvesting. The term "farm" includes:
(i) Facilities that pack or hold food, provided that all food used in such activities is grown, raised, or consumed on that farm or another farm under the same ownership; and
(ii) Facilities that manufacture/process food, provided that all food used in such activities is consumed on that farm or another farm under the same ownership.
So if you aren't on your personal residence and consume everything you pack or hold or manufacture or process (this does NOT mean growing) then you are a "farm" and thus this law does not apply to you. (if you are doing any of these things on your personal residence, this law doesn't apply to you because it is not a "facility")
(11) Retail food establishment means an establishment that sells food products directly to consumers as its primary function. A retail food establishment may manufacture/process, pack, or hold food if the establishment's primary function is to sell from that establishment food, including food that it manufactures/processes, packs, or holds, directly to consumers. A retail food establishment's primary function is to sell food directly to consumers if the annual monetary value of sales of food products directly to consumers exceeds the annual monetary value of sales of food products to all other buyers. The term "consumers" does not include businesses. A "retail food establishment" includes grocery stores, convenience stores, and vending machine locations.
If you sell anything you pack, package, manufacture, or process, to anyone OTHER than consumers, then the law might apply to you, but only if you are within D.C., one of the organized territories, or are engaged in "interstate" commerce as noted above. Otherwise, this law does not apply to you.
Please, go read the rest of 21CFR 1.227. It is a page long and easy to read. You will understand this much better after you do.
So the lesson here for today?
Learn to read the law, and don't take what just anyone on the internet says at face value about a law, most especially if they are claiming Congress is usurping authority, or about to pass this or that draconian legislation, odds are, it either doesn't do what the fear mongers claim it does, or it doesn't apply to the people they claim it applies to.
It is also important to KNOW the law. So when some idiot agent of the government decides he wants to agree with the fear mongers and try to enforce this law on you when it CLEARLY does not apply, you can rake him over the coals in court, if he gets that far after he finds out he is barking up the wrong tree and instead might think twice about intentionally and willfully violating your inalienable rights.
In closing, I'll leave you with this little scenario:
Congress doesn't have a certain power.
So they pass a law that "appears" to apply to everyone, but doesn't. (because it can't)
Everyone is pissed off, but still complies because they are fools and didn't bother to check the actual scope of the law.
A few people do check out the law and rightfully refuse to comply, (because they don't have to) but no one will believe them, because "everybody knows" you must comply.
Congress, without having a power, just duped Americans into complying anyway.
And then those Americans get pissed off and have the nerve to be mad at Congress passing "unconstitutional" laws.
In reality, is was the laziness and stupidity of Americans who refuse to READ, and LEARN, and who BLINDLY follow like sheep to the slaughter, who allowed Congress to take a power they don't have.
After years or decades it becomes impossible to avoid this law, that doesn't even apply to you. Anyone you try to tell the real scope of the law to, thinks you are a looney bird.
And the country goes down the toilet of tyranny, and we give up yet more essential liberty, all because people wanted to sensationalize rather than do a little homework.
Complying with an unconstitutional act is more egregious than the passing of the act in the first place. Even worse, is claiming Congress is doing something it hasn't the power to do, for then, people will believe you, and comply when they are not required to, until many years later, though no one being prohibited, many are imprisoned for doing that which "everyone knows" is against this non-existant law.
S.510 is a bad bill for lots of reasons. None of them include what is being claimed in other threads here and across the blogosphere.
Good luck to anyone working to defeat this bill. But please do so armed with truth rather than sensationalism. Advocates of small government are done a great disservice when the people who advocate the loudest are spouting nonsense.