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A solemn walk through HR 875

By       Message Linn Cohen-Cole     Permalink
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opednews.com Headlined to H3 3/14/09

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"FDA has concluded that private individual residences are not ''facilities'' for purposes of the registration provision of the Bioterrorism Act. Under the Bioterrorism Act, the term ''facility'' includes ''any factory, warehouse, or establishment.''

Congress did not specify any definition for these terms. Under their common meanings, the terms can include private residences. For example, according to Webster's II New Riverside University Dictionary (1994), the most relevant definition of ''establishment'' is ''a business firm, club, institution, or residence, including its possessions and employees.''

However, ''[I]n determining whether Congress has specifically addressed the question at issue, the court should not confine itself to examining a particular statutory provision in isolation....  It is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme." FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 121 (2000). 

Other parts of the registration provisions in Section 415 of the FD&C Act indicate that Congress only intended businesses to register.  This raises a question as to whether Congress intended that private individual residences be considered facilities, even though food is manufactured/processed, packed, or held at such residences.

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For instance, a registrant is required to submit ''the name and address of each facility at which, and all trade names under which, the registrant conducts business...'' (21 U.S.C. 350d(a)(2)). 

Thus it is unclear whether Congress intended all individual private residences at which food is manufactured/processed, packed, or held to be included in the term ''facility.'' Furthermore, the requirement that a facility submit its ''name'' as well as its ''trade names'' raises a question as to whether Congress intended ''facility'' to include private individual residences since it is unlikely that a home would have a name or a trade name.  

Where the words of the statute are ambiguous, an agency may make a reasonable Interpretation of the statute. Chevron, USA, Inc. v. NRDC, Inc., 467 U.S. 837, 842-843 (1984); Brown & Williamson, supra, at 132.

Consistent with the language of section 415(a)(2), the agency concludes that interpreting the term ''facility'' to exclude private individual residences is a reasonable construction for purposes of registration.  This interpretation, however, does not necessarily preclude a reasonable construction of other provisions of the FD&C Act to include such residences. Judicial interpretation can change, and easily include residences.

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MYTH:    H.R. 875 would mean a "goodbye to farmers markets" because the bill would "require such a burdensome complexity of rules, inspections, licensing, fees, and penalties for each farmer who wishes to sell locally - a fruit stand, at a farmers market." 

FACT:   There is no language in the bill that would result in farmers markets being regulated, penalized any fines, or shut down.  Farmers markets would be able to continue to flourish under the bill.  In fact, the bill would insist that imported foods meet strict safety standards to ensure that unsafe imported foods are not competing with locally grown foods. 

Section 406 clearly states all food offered for sale will be viewed as being in interstate commerce and subject to the provisions of this bill.  


In any action to enforce the requirements of the food safety law, the connection with interstate commerce required for jurisdiction shall be presumed to exist

(8) CATEGORY 4 FOOD ESTABLISHMENT- The term 'category 4 food establishment' means a food establishment that processes all other categories of food products not described in paragraphs (5) through (7).

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(9) CATEGORY 5 FOOD ESTABLISHMENT- The term 'category 5 food establishment' means a food establishment that stores, holds, or transports food products prior to delivery for retail sale.

(14) FOOD PRODUCTION FACILITY- The term 'food production facility' means any farm, ranch, orchard, vineyard, aquaculture facility, or confined animal-feeding operation.

Say it again and again, "this applies to farms and can apply to homes." It certainly looks to me that families baking cookies for bake sales could easily be included. 


(a) Authorities- In carrying out the duties of the Administrator and the purposes of this Act, the Administrator shall have the authority, with respect to food production facilities, to--

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Met libertarian and conservative farmers and learned an incredible amount about farming and nature and science, as well as about government violations against them and against us all. The other side of the fence is nothing like what we've been (more...)

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