Wednesday, December 1, 2010

Why the Tester Amendment Does NOT Help Small Food Producers Under S.510

The Tester "Small Farm" Exemption  to S.510 Exposed as a Scam: Part 1

Dark Days for Small Farmers (photo:
Eric Blair
Activist Post

Some of our readers and others have requested that we reference specific sections of the Tester Amendment to food safety bill S. 510 to outline why this does not help or exempt small food producers.  The amendment has been sold to the critical public as "exempting" small farms and food producers from the entirety of the heavy-handed regulations of the Food Safety Modernization Act. Yet, nothing could be further from the truth.

These small producer exemptions are only for "qualified facilities" and only pertain to subsections (a) through (i) and subsection (n) of S.510 -- as outlined on page 5, line 15 in the Tester Amendment:
    (2) EXEMPTION. --A qualified facility--
    (A) shall not be subject to the requirements under subsections (a) through (i) and subsection (n) in an applicable calendar year.
Therefore, even a "very small business" making less than "$500K per year," doing business "within 275 miles" and directly with "end-user customers" is still required to adhere to all of the regulations in the remaining subsections of the bill. That's point number one which I'll return to in Part 2 of this essay.

Curiously, the only mainstream story to cover the contents of the Tester Amendment was a four-sentence article by the Associated Press which was released on a Friday and seemed purposely short on details.  It only makes the claim that the Tester Amendment allows "some" small farms to "avoid expensive food safety plans:"
The agreement brokered by Tester would allow farmers who make less than $500,000 a year in revenue and sell directly to consumers, restaurants or grocery stores within their states or within 275 miles of their farms to avoid expensive food safety plans required of larger operations. (My emphasis in bold)
 These expensive food safety plans are apparently a reference to subsection (h) of S.510: 
Written Plan and Documentation- The owner, operator, or agent in charge of a facility shall prepare a written plan that documents and describes the procedures used by the facility to comply with the requirements of this section, including analyzing the hazards under subsection (b) and identifying the preventive controls adopted under subsection (c) to address those hazards. Such written plan, together with the documentation described in subsection (g), shall be made promptly available to a duly authorized representative of the Secretary upon oral or written request.
Ironically, the Tester Amendment clearly states that in order for a small producer to become a "qualified facility" for these exemptions, they must submit the following to the Secretary upon request:
  • 3 years of comprehensive financial records indicating less than $500K in gross sales (Pg. 4, Line 11)
  • I. Documentation that the owner, operator or agent of the facility has identified potential hazards associated with the food being processed, is implementing preventative controls to address those hazards, and is monitoring the preventative controls to ensure that such controls are effective (Pg. 5 line 20).
  • II. Documentation (which may include licenses, inspection reports, certificates, permits, credentials, certification by an appropriate agency (such as the State Department of Agriculture) or other evidence of oversight), as specified by the Secretary that the facility is in compliance with state, local, county, or other non-Federal food safety law (Pg. 6, Line 5).
Those requirements bear a striking resemblance to the "expensive" food safety plans outlined in subsection (h) of S.510 that small producers are supposedly exempt from.  In other words, they must submit similarly comprehensive plans just to qualify to be exempt from creating them. But it gets worse.

If Grandma wants to sell her famous raspberry jam at the county fair (within 275 miles of her canning kitchen) she will indeed be qualified for small producer exemptions, but not before she forks over 3 years of financials, documentation of hazard control plans, and all local licenses, permits, and inspection reports. She must submit this documentation to the satisfactory approval of the Secretary; and if she fails to do so, the entirety of S.510 can be enforced on her.  That's hardly what I would call an exemption.

Because small producers are being forced to jump through stringent local and Federal regulatory hoops just to qualify, the bill appears to be designed not to make it "illegal" to sell homegrown goodies, as some suggest, but to make the system so cumbersome that small producers will say forget it and give up their local food business -- which is what many, including yours truly, have speculated is the hidden corporate agenda of the bill.  

Forget the alarmist claims made by S.510 critics for moment.  The one thing this bill will undeniably do is squeeze the little local guy out of the food industry through excessive regulation -- regardless of the political backslapping or media joy over bipartisanship and propaganda over "exemptions."  The bottom line is that it's common sense that local organic farmers produce a healthier and more nutritious product than their factory-farm counterparts, yet it is those promoting health who will suffer the most under this food "safety" bill.

Stay tuned for Part 2 where I will expose the remaining subsections of the bill that apply to even those with so-called small producer exemptions.

Propaganda Alert: AP reports Small Farms are Exempt from Food Safety Bill
Food Fascism in The Land of The Free
Raiding and Regulating the New Enemy in the War on Drugs: Rawesome Foodies

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Saladin said...

This is where peaceful non-compliance begins. We will see if they will actually throw people in jail for growing and selling local produce.

Anonymous said...

Everyone start a victory garden this year and trade food items to eliminate the money trail.
Then see who they get to enforce locking up you and your neighbours for trading food essentials.
We're all gonna be out of viable cash soon anyway.

vegetablesoul said...

well they got their tsa goons to do the filthy work they're doing, although confiscating food is hardly as arousing as looking at naked people might be.might just have to pay them more and give em a big gun. they will not stop people from growing and sharing their food, because that is where we draw the line... if we don't refuse to submit to these UNJUST laws, we deserve to starve. Don't worry you can have all the food you want from the chemical monoculture fema camp farms.

"Ah judge your damned laws:the good people don't need 'em and the bad people don't obey them..."-Ammon Hennacy, a “Catholic, anarchist, pacifist, draft dodger of two World Wars, tax refuser, vegetarian and one-man Revolution in America.” As described by the late utah phillips

Anonymous said...

Ok, so what is the real name of the author of this article. Till I know that I wouldn't believe anything in it. You do know that Eric Blair is the real name of George Orwell do you not?

Activist said...

We hope that you don't believe us and actually follow the links in all articles to discover the truth for yourself. That kind of discrimination can lead to believing anything that comes out of the mouths of your favorite commentators.

We post the truth as we see it from the left, right, or center no matter who the messenger is. This so-called liberty movement seems filled with people looking to demonize messengers instead of seeking the truth.

Thank you for taking the time to read my article. My only hope is that you find enough truth here to respect the website.

Eric B.

Anonymous said...

if this is the case, eric, it is totally and completely unenforceable. esp if everyone is growing gardens. further, if you have ever met a real farmer, as in old school, you would know that he doesn't write down anything, nor would he have the time to do so. the government is creating windmills for the benefit of it's corporate sponsors, who are even more moronic than the government, itself.

Anonymous said...

"it is totally and completely unenforceable" - IT WILL BE ENFORCED. So many people who are out of work will be sucked into government enforcement jobs. They will do all the dirty work spying and reporting on people. Times are changing in the U.S.

Dreen said...

The enforcement side isn't all that difficult with the control of access to market. I've been fighting the consolidation and full take over of food production for years. When you ensconce in statute the control over all food production for distribution and define farm as the FDA does, you have tyranny. I guess those who say it can't be done are unaware of the examples being made in raw dairy currently....Morningland and Estrella.....How about the $500 dollar fine to the Ohio farmers market man for 'adulterating' his greens by.....washing them???

S 510 is just the authorizing legislation for total food control.

Luckily, we may have a little time due to the procedural (constitutional error) made by the Senate.

Anonymous said...

Raw milk goat dairy got shut down in CO, you have to become a member to get the raw milk as it is illegal to sell it to everyone as they might get sick and die! But owner fixed things and is up and running again.
Then there's the big farmers who seem to get their water shut off almost every year here because of drought. Monsanto and others have been wining and dining representatives here and farmers to grow their crap products.
Then there's that hero going around burning down hay stacks that are most likely GM.
I have a vision of people dropping like flies in the street from not enough nutrition from these frankenfoods. BTW, Franken voted for this as did every other stinkin' demogod out there. I say let all politicians eat this crap for a year before making us eat it!

Harry Hamil said...

It appears to me that you have missed the word "or" at the end of the new Sec. 418(l)(2)(B)(i)(I) of the FFDCA.

It makes a big difference.

From my perspective, Tester-Hagan was always only a way for small farmers, packers, processors, storage facilities and distributors to live long enough to fight another day. In the negotiations to include some of Tester-Hagan in the bill managers' amendment, T-H got made much more complex than it ever needed to be but that was the price for some protection for small growers, packers, processors, storage facilities and distributors.

It is far from a sham and your oversight and strong words do NOT aid local, healthy food.

For different reasons (some conflicting), a broad, large array of groups are now working to defeat S 510. Please, join the effort and stop don't diverting energy with blogs like this.

As I have for 17 months, I will gladly defend everything I have written. Write me at I hope to update our website soon at

Judith McGeary said...

As Harry pointed out, you missed an "or" in the relevant section of the bill. The facilities that qualify for the Tester-Hagan exemption must submit documentation showing that they qualify (gross sales under half a million & majority direct marketed), and either the simplified food safety plan you quote above OR documentation on compliance with state and local laws (such as a copy of their commercial kitchen license).

The "or" is found on page 22, line 6, of the version of the bill passed by the Senate.

It's also important to note that "facilities" are businesses the hold, process, or manufacture food. They are already required to register with the FDA under the 2002 Bioterrorism Act. I think that is objectionable as well, but it is already the existing law, with or without S510 or the Tester-Hagan amendment.

For farms that do not process food (i.e. they sell only fresh, uncut vegetables and fruit), one of the main concerns with S510 is the produce safety standards that FDA is directed to write under Section 105 of the bill. The second half of the Tester-Hagan amendment exempts farms that gross less than half a million (adjusted for inflation) and that sell more than half their products directly to consumers, local restaurants, or local retail food establishments. See pages 51-53 of the bill. There is no requirement that the farmers register with FDA or submit any paperwork.

There are a lot of valid criticisms of S.510 even with the Tester-Hagan amendment. In particular, I have always tried to be clear that the amendment exempts small-scale, direct marketing producers from specific portions of the bill, not from the entire bill. But this post misreads the bill and amendment language.

Anonymous said...

This is the first mention I've seen that the $500k gross figure is adjusted for inflation. Judith, can you cite that assertion, please?

Judith McGeary said...

Re: inflation, both sections of the Tester amendment provide that the half a million dollar figure is to be adjusted.

The first reference is in the provision for facilities: "‘(II) the average annual monetary value of all food sold by such facility (or the collective average annual monetary value of such food sold by any subsidiary or affiliate, as described in clause (i)) during such period was less than $500,000, adjusted for inflation." Page 21, lines 9-16

The second reference is with respect to farms: "(B) the average annual monetary value of all food sold during such period was less than $500,000, adjusted for inflation." Page 51, lines 14-16

Anonymous said...

Harry Hamil is a modern day hero for real foods and local growers. He has worked day in and out to stop and or preserve what freedoms we have left in terms of healthy local foods.
As a very small local farm, we mainly grow our food, we have a plan in place to maintain our foods. I am glad we have the Harry Hamil's in this world because it allows the rest of us to preserve our sanity and carry on.
On another note the US government is no longer for the people by the people but a monster that has developed the habit of terrorising the American public with the use of over burdening, cumbersome laws which have one use only,that is to maintain control over all of us. The sad fact is that we have, and continue to let it go on. Maybe the Tester-Hagan amendment should be seen as a wake up call to those of us who care about our country and our freedom.

Rachel said...

Hamil "might" be a hero.

Problem is, his website is non-functional, and he only repeats his "I worked for the Tester-Hagan Amendment" nonsense continually, like a parrot stuck on a single song.

If he were legit -- i.e. NOT a big ag shill -- he'd be best off fixing his website, and answering people's questions without ad hominem attacks.

Harry Hamil's commentary is about as far to be trusted as his non-existent website. Too, his backpedaling when faced with people questioning his commentary is suspicious.

Do I trust him? I do not; moreover, I do not trust his claims that regulations make us "safer".

Anonymous said...

We need a decentralized underground network of compact self sustaining aquaponic systems that combine with composting, anaerobic digestion, pyrolysis,algae photobioreactors and 3D printers that can be installed inside homes, businesses and vehicles for free, abundant and clandestine production of all basic necessities.

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