States' rights • Rep. Bill Wright's legislation is modeled after Montana gun law and theory that feds lack authority over intrastate commerce.
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Rep. Bill Wright, as he puts it, "grew up in the dirt," raising dairy cattle since he was a boy.
But now he fears farming is in jeopardy, threatened by the heavy hand of federal regulations that could drive farmers out of business and jeopardize Utah's food supply.
So in the latest bid to flex the state's muscle, Wright is proposing legislation that would exempt food grown and consumed entirely within the state from any federal regulation.
"Within the state, it's state's rights. We already have regulations over those items," Wright said in an interview. "We function well now. We don't think they have a right or authority to regulate those items that are not interstate commerce, as long as they're grown within the state, packaged in the state and remain in the state."
The bill is in large part a response to the Food Safety Act, which Congress passed late last year and, Wright said, could greatly expand the Food and Drug Administration's powers and subject all sorts of agriculture from farmers markets to a person's garden to new, onerous federal rules.
But David Plunkett, an attorney who specializes in food safety at the Center for Science in the Public Interest, dismissed Wright's fears and the aim of his bill.
"The premise is just popular politicking. This is somebody who's playing to people's fears and misrepresenting the facts and doing it for political purposes," said Plunkett, whose group recently gave Utah a "D" grade for its ability to detect food-borne disease outbreaks.
Under an amendment to the Food Safety Act, producers with less than $500,000 in annual sales would not be subject to new federal regulations if they sell to consumers in the state or within a 275-mile radius of where the food was produced.
James Gillmor, of Morgan Valley Lamb, whose family has raised sheep for three generations and sells its products at farmers markets around the area, said he would support anything that would reduce the amount of regulation he is subjected to.
"The costs add up. It doesn't seem like it, but every layer of inspection you do is another fee or increased cost," Gillmor said.
He said some of his products are inspected three times before they get to the market, and all of that adds to the expense and cuts into his already-thin profit margin.
Jill Bell, co-founder of Bell Organics, which sells organic fruit and vegetables at farmers markets, said her operation is likely one of the most heavily regulated, because she has made the choice to be an FDA-certified organic producer. As a result, Bell Organics is subject to an annual inspection.
"We don't have to be certified organic and if we weren't, we'd never hear from those guys," Bell said. "The amount of regulation they do isn't too much. They aren't too severe."
Wright said hundreds of producers participate in farmers markets or community supported agriculture each year. It is a growing portion of the agriculture industry, he said. Consumers like it and the producers need some certainty that they won't come under harsh federal regulation.
"It gives us some guarantee and some level of assurance that things will stay the way they are," Wright said.
Wright's idea is modeled after a Montana gun law that Utah also adopted last year, built on the premise that if the product doesn't cross state borders, the federal government's authority to regulate interstate commerce shouldn't apply and there is no constitutional right to federal regulation.
The Justice Department challenged the law, arguing the federal government has long-standing authority over firearms, citing its power to regulate interstate commerce. A federal judge struck down that law. Gun advocates are appealing the ruling.
The FDA has traditionally argued it has the ability to regulate food that is sold as well, according to Sheldon Bradshaw, a former general counsel at FDA and a Brigham Young University graduate.
"The FDA is of the view that it has the authority to regulate any food commodity that is offered for sale, regardless of whether it is purchased in the state in which it is grown," Bradshaw said.
The FDA is just one of 15 federal agencies that, according to the Government Accountability Office, enforce 30 food safety laws. But the Food Safety Inspection Service at the U.S. Department of Agriculture and FDA cover the bulk of the inspections.
Wright says that, in his experience, federal regulators are more heavy-handed and intent on issuing fines, compared to state regulators who are more willing to work with farmers.
"They regulate by intimidation and extortion and threatening everybody," he said.
Wright said the cooperative he is part of sells much of its milk in Nevada, so it would still be covered if his legislation passes, although the co-op is considering starting a local label that would be sold exclusively in Utah.
But Plunkett said Wright's bill would be detrimental and, in a world where food and food products frequently flow across state lines, impractical.
"I don't see why I should have to get sick so [a farmer] can have a livelihood," he said. "Why would the state of Utah exempt itself? These are reasonable steps that are going to protect the citizens of Utah, as well as the citizens of other states, and they're things that farmers should be doing."
Food Safety Act
Major provisions of the act, signed into law Jan. 4:
The FDA must establish science-based standards for the safe production and harvesting of fruits and vegetables.
The FDA is directed to increase the frequency of inspections. High-risk domestic facilities must receive an initial inspection within the next five years and no less than every three years after that.
The FDA is authorized to mandate a recall of unsafe food if the food company fails to do it voluntarily. The law also provides a more flexible standard for administrative detention (the procedure FDA uses to keep suspect food from being moved); allows FDA to suspend the registration of a food facility associated with unsafe food and directs the agency to improve its ability to track both domestic and imported foods.
Source • The Food and Drug Administration, www.fda.gov