Tester-Hagen as stealth NAIS in S-510

The latest insights from David E. Gumpert on his “The Complete Patient” blog:

“The Tester-Hagan Amendment was supposed to be the savior of S510, giving smaller producers an exemption from the worst requirements of the so-called food safety legislation. Now, it turns out, the amendment may be the great black hole of the entire food safety steamroller. 

While the lawyers are trying to figure out ways to finagle around the U.S. Senate’s error in venturing into the U.S. House’s territory by initiating revenue-generating legislation, another hole has opened in the crumbling dike that is S510. (Even The Wall Street Journal, normally a supporter of the FDA, has come out against it, stealing some of my lines, it seems.)

On close reading, the Tester-Hagan Amendment looks to be doing a lot of the things that the discredited National Animal Identification System (NAIS) tried to do and failed when it was pulled by the U.S. Department of Agriculture in the face of vehement farmer opposition last year. In other words, Tester-Hagan might well be seen as a wolf in sheep’s clothing, as it were.

Congrats to Eric Blair, of Activist Post for combing through the actual text, and launching the vetting process. A little late, perhaps, but better late than never.

As Blair sees it, the big problem with the amendment is that it doesn’t exempt small producers as easily, or completely, as suggested in the media reports. The small producers need to make the case to the U.S. Food and Drug Administration that they qualify, and to qualify, must show they have “identified potential hazards associated with the food being produced” and are “implementing preventive controls to address the hazards,
and is monitoring the preventive controls to ensure that such controls are effective.” These are similar to what larger food producers must do.

Now, I’d go further and say that those are just the beginning of the problems. For years, the USDA tried to implement NAIS to force farmers to register their farms and each and every animal–known as the National Animal Identification System.

Well, Tester-Hagan may wind up accomplishing the NAIS goals. I had assumed, in offering advice to farmers in my previous post, that to qualify for the Tester-Hagan protections, a small food producer would simply stay away from FDA offices, or tell an inspector they didn’t qualify. Presumably, if the FDA felt differently from information it might have, it could audit a small producer to make sure it qualified. Absolutely not so. Under Tester-Hager, small producers need to produce for the FDA “documentation (which may include licenses, inspection reports, certificates, permits, credentials, certification by an appropriate agency (such as a State department of agriculture), or other evidence of oversight)…”

That’s not all. They will be required to show additional as yet unspecified “documentation” specified in a “guidance document” to be produced by the FDA within a year of passage of S 510….”

Read it all on The Complete Patient blog.

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4 responses to “Tester-Hagen as stealth NAIS in S-510

  1. nedlud

    David E. Gumpert:

    I sure appreciate your thoughts and appearances here on the Bovine.

    The Natural News guy, Mike Adams, is good too.

    A story on DHS, found this morning:


    And to think many people STILL don’t realize or appreciate how bad this is all getting. I guess that’s how fascism and totalitarianism always works. It preys on and makes a mockery of people’s natural gift of optimism.

  2. thebovine

    S-510 dead in the water?

    From Natural News: “It is now being revealed that US Senators slipped up in a big way when passing the Food Safety Modernization Act on Tuesday: They added what are effectively “new taxes” into the bill, and according to the U.S. Constitution, only the House of Representatives can initiate legislation requiring new taxes.

    Thus, the House is now obliged to give this food safety legislation the so-called “blue slip,” meaning that it rejects the law and sends it back to the Senate for yet another vote. This would take time and effort, of course, and the Democrats have very little of either remaining in their lame duck session.

    Learn more: http://www.naturalnews.com/030588_Food_Safety_bill_blue_slip.html#ixzz173ki0fw0

  3. Judith McGeary

    The confusion is understandable, but this post does not reflect the Tester-Hagan amendment accurately when you put it into the context of the existing law.

    “Facilities” (i.e. businesses that do any processing or manufacturing of food) are ALREADY required to register with FDA under the 2002 Bioterrorism Act. S510 would impose extensive HACCP-type requirements on any facility that is curently required to register. The Tester-Hagan amendment does two things:
    1) clarifies that facilities selling more than half their products directly to individual consumers through farmers markets, farm stands, and CSAs are NOT required to register (and therefore not required to do the HACCP) (see pages 11-12 of the bill, combined with FDA’s existing regulations under the 2002 Bioterrorism Act)
    2) creates a new category of “qualified facilities,” which are those that gross under half a million dollars and that sell more than half their products directly to consumers, local restaurants, and local retail establishments combined. This category of facilities is already required to register with FDA under existing law, but the amendment would exempt them from the new HACCP requirements by submitting documentation to the agency showing (i) that they meet this tst and (ii) that they comply with applicable state or local laws OR that they have the sort of documentation quoted in this posting. That “or” is a critical piece of the language. (See pages 19-24 of the bill)

    For farms that do not process or manufacture food, they are not “facilities” in the first place and do not have to register or go through the new HACCP-type process, even without the Tester-Hagan amendment. Gumpert’s full blog post raises a concern about the imposition of “Good Agricultural Practices” or GAPS. The concept behind GAPs (although not the term) is found in Section 105 of the bill, which directs FDA to issue “produce safety standards” telling farmers how to gro and harvest their crops. The Tester-Hagan amendment exempts farmers that gross under half a million (adjusted for inflation) and that sell more than half of their products directly to consumers, local restaurants, and local retail establishments from these requirements. The exempted farmers are NOT required to register with FDA or produce paperwork to qualify. See pages 51-53 of the bill.

    And none of this applies to producers selling meat because that is under USDA’s jurisdiction, not FDA’s. It does cover eggs and dairy. (Note that Senator Tester has been one of our best allies in Congress in fighting NAIS. He introduced an amendment last year, which succeeded, to cut funding for NAIS in half.)

    None of this is a perfect solution – S510 and the Tester-Hagan amendment involved very ugly sausage making. The Tester-Hagan amendment fixes some of the existing problems caused by the 2002 Bioterrorism Law and a very significant part of the problems that would be caused if S510 passes. But not all. The bottom line is that the amendment is damage control. That isn’t the fault of Senators Tester or Hagan or any of the people who advocated for this amendment. It’s due to the Agribusiness capture of FDA and much of Congress, a problem that has developed over decades and that we will need to spend the next decade fighting.

    I have a more detailed discussion posted at


  4. thebovine

    Confirmation of S-510’s status from Jennifer Hoffman on Facebook:

    US food “safety” bill has now been thrown out. The House of Reps, gave it a “Blue Ticket”, it had unconstitutional inclusion of taxation. Now it must be amended and the Senate process started over in the next session in 2011.

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