WARRANTLESS SEARCHES

Send a personal message to your legislators through our petition system by clicking on “Oppose HR 2749“.  

Talking Point*:  HR 2749 would empower FDA to make warrantless searches of the business records of small farmers and local food producers, without any evidence whatsoever that there has been a violation.  Even farmers selling direct to consumers would have to provide the federal government with records on where they buy supplies, how they raise their crops, and a list of customers.

* * * * * * *

Excerpt from June 15 Post by Pete Kennedy (page references to Pallone’s version–See corresponding Waxman’s version at end):

A.  RECORDKEEPING

Under the FSEA, all food producers would have to make their records available to FDA inspectors.  Under current law, FDA can examine the records of those in the food business (excluding farms and restaurants) if there is “a reasonable belief that an article of food is adulterated and presents a threat of serious adverse health consequences or death to humans or animals” [21 USC 350c(a)].  Under the FSEA, all those in the food business, including farms, must turn over to FDA inspectors all records “bearing on whether the food is adulterated, misbranded or otherwise in violation of this Act . . .” [section 106(a)–p. 39].   This requirement “applies to all records relating to the production, manufacture, processing, packing, transporting, distribution, receipt, holding of [food]” that is maintained “in any format and at any location.” [section 106(a)–pp. 39-40] 

In other words, FDA would now be empowered to go on a ‘fishing expedition’ and search records without any evidence whatsoever that there has been a violation.  Even farmers selling direct to consumers would have to provide the federal government with records on where they buy supplies, how they raise their crops, and a list of customers.  Refusing a records inspection would constitute adulteration [section 207(a)–p. 102].

* * * * * * *

Waxman’s version (June 17)

* * Pallone section 106(a)–pp. 39-40 = Waxman pp. 48-49 [106(a)(1)(A)&(B)] * *

SEC. 106. ACCESS TO RECORDS.

(a) RECORDS ACCESS.—Subsection (a) of section 414 (21 U.S.C. 350c) is amended to read as follows:

‘‘(a) RECORDS ACCESS.—

      ‘‘(1) RECORDS ACCESS DURING AN INSPECTION.—

           ‘‘(A) IN GENERAL.—Each person who produces, manufactures, processes, packs, transports, distributes, receives, or holds an article of food in the United States or for import into the United States shall, at the request of an officer or employee duly designated by the Secretary, permit such officer or employee, upon presentation of appropriate credentials, at reasonable times and within reasonable limits and in a reasonable manner, to have access to and copy all records relating to such article bearing on whether the food may be adulterated, misbranded, or otherwise in violation of this Act, including all records collected or developed to comply with section 418 or 418A.

          ‘‘(B) SCOPE OF RECORDS.—The requirement under subparagraph (A) applies to all records relating to the production, manufacture, processing, packing, transporting, distribution, receipt, holding, or importation of such article maintained by or on behalf of such person in any format (including paper and electronic formats) and at any location.

* * Pallone section 207(a)–p. 102 = Waxman p. 119 * *

SEC. 207. PROHIBITION AGAINST DELAYING, LIMITING, OR REFUSING INSPECTION.

(a) ADULTERATION.—Section 402 (21 U.S.C. 342), as amended by section 102, 103(a), and 104(a), is amended by adding at the end the following:

    ‘‘(n) If it has been produced, manufactured, processed, packed, or held in any farm, factory, warehouse, or establishment and the owner, operator, or agent of such farm, factory, arehouse, or establishment, or any agent of a governmental authority in the foreign country within which such farm, factory, warehouse, or establishment is located, delays or limits an inspection, or refuses to permit entry or inspection, under section 414 or 704.’’.

The “Oppose HR 2749” petition is posted at http://www.ftcldf.org/petitions/pnum993.php

Information provided courtesy Farm-to-Consumer Legal Defense Fund (www.farmtoconsumer.org)

* 7/12/09 edit – removed “random”: empower FDA to make random warrantless searches of the business records