La Chica Organica™

Last week we told you about ^[1] the threat posed by Sen. Leahy’s new bill. This week we want to explain how important it is that all of us take action—immediately.

The first problem, as we noted in our original piece, is that the bill calls for a jail term of up to ten years ^[2] for any food or supplement producer who “misbrands” a product. Excuse us, but what does misbranding have to do with food safety? Is this another example of Congress not wanting a good crisis (recent food contamination) to go to waste? To this bill’s credit, it is short and more-or-less understandable. So why does it wander off the food safety subject almost at once?

And keep this important point in mind: the FDA contends that any food or supplement producer who mentions the potential of a product to prevent or treat disease is guilty of misbranding—even if they have piles and piles of scientific research from Harvard or some other top institution. So this bill would create a potential ten-year jail term simply for citing the best science.

The FDA will use this new stick to intimidate, harass, and unfairly punish. The word “misbranding” has no place in this bill. It vastly increases FDA power over food and supplement producers without enhancing food safety in any way.

The second problem is that this bill defines contamination as “adulteration.” But the legal definition of “adulteration,” like “misbranding,” is highly technical, and the FDA’s current definition of adulteration includes minor and unintended administrative and clerical errors.

The third problem is that the bill is sloppily written, which can be dangerous when the time comes to enforce the law. Placement of the key word “knowingly” is ambiguous: does the long jail term apply to those who “knowingly introduce” the product into commerce, or to those who “knowingly adulterate” it? On top of that, the bill seems to apply to someone who sells a contaminated product, but not to someone who contaminates it in the first place if not a distributor.

The original House food safety bill ^[3] included these kind of jail sentences. The Senate HELP Committee rejected them, and we were assured by key senators that the Senate would not allow them to be added in conference with the House. The new Leahy bill attempts to make an end-run around the HELP Committee by getting the Senate on the record as being in favor of these jail terms for misbranding and adulteration. If the Leahy bills passes, it will likely be combined with the Senate food safety bill, and the final conference bill will then almost certainly contain the long jail terms.

As with the recent McCain bill, it is very possible that Sen. Leahy does not fully understand what his bill is doing. It is also possible that the impetus for the Leahy bill may have come from Congressman Waxman in the House, but this is speculation.

What particularly concerns us at the moment is that the Senate might pass this dreadful legislation right away before leaving on October 7 to go campaign. That’s why we need everyone to take action without delay.

If you have not done so already, PLEASE write to your senators immediately and ask them to stop this bill! Take action now! ^[4]