HR 2749 Passes With Some Reassuring Language

Well, friends, HR 2749 has passed. Of course, we knew it would. But thankfully, a reasoned debate happened before hand, some wording was altered, and many reassurances were given.

I’m still skeptical about the actual implementation of this bill, but that’s because I’m always skeptical about the choices Big Government makes that consistently support Big Industry, and in this case Big Ag.

To find out how your representatives voted, click here.

Thanks to Jill at the La Vida Locavore, we have a rough transcript of the section of the debate centered around how this bill will affect small-scale direct-to-consumer producers and certified organic producers.

A few highlights:

Representative Farr shares his concerns —

I have deep concerns, however, about the fee structure in the measure, which would charge a farm family making jams or syrup or cheese the same fee as a processing plant owned by a multinational corporation employing hundreds or thousands or workers.  This strikes me as not only unfair but contrary to federal farm policy that has encouraged small and mid-sized family farms to get into small scale value-added enterprises to survive economically.  I am seeking an assurance from the gentleman that a more progressive fee structure will be found that does not inhibit our farm families from taking advantage of new markets.

As a member of the Organic Caucus, I also have concerns about the interplay between this bill and the National Organic Program.  Is it the Chairman’s understanding that this bill would not establish any requirements for organically produced or processed products which are in conflict with the requirements established by the Organic Foods Production Act of 1990 and the USDA’s National Organic Program regulations?

Representative Blumenauer echoes his concerns and adds a few more —

I am also concerned about the language regarding interaction between wildlife, livestock and farming practices. Biodiversity is a prerequisite for a healthy farm and not something we should penalize farmers for. Last week in my state, staff from Oregon State University and the Xerces Society led a tour to four diverse Oregon farms where farmers are utilizing techniques such as naturescaping, floodplain restoration and natural hedgerows to encourage crop health, control pests and invasive species, and enhance soil quality. I am concerned that these practices, which are cost effective and bring benefits to the farm and local wildlife, would be in jeopardy under this legislation.

I believe we should target reform and safety efforts towards practices which have been directly linked to food disease outbreaks, rather than limiting approaches that farmers have used for centuries to reduce their dependence on pesticides, herbicides and other carbon intensive farming techniques.

I would like assurance from the Chairman that as the Food and Drug Administration develops these criteria, they will consider the needs of small farms and the practices of organic farmers.

You’ll note that these are most of the concerns I listed yesterday in my post (pretty much all except giving the FDA the power to ban raw milk sales). The representatives questioning the bill made no mention of the NAIS system being implemented on small scale farms, but that’s because the bill that went to floor today provided exemptions from NAIS-type requirements for small-scale farms selling more than half of their products directly to consumers. YAY! For those of you who called your representative, give yourself a pat on the back!

And, you’ll also be pleased to hear the assurances given in response to the concerns of Mr. Farr and Mr. Blumenauer:

The bill before us includes important language that would exempt from registration and from fees on-farm processors who sell more than half of their product by value directly to consumers or who process grain for sale to other farms.  I believe these two provisions go a long way to satisfying the kinds of concerns being expressed.  However, I realize there are other small farms or small local processors who will not fit under these exemptions who may face a hardship and I promise to work with my colleagues to address these concerns as the bill moves into conference.

With respect to the National Organic Program, it is my expectation that the FDA will work very closely with the NOP as it implements this bill to ensure there are no such conflicts. There is direction within the bill for the FDA to consider small farms, organic practices and conservation methods, and I trust that this will be followed. The intention of this bill is not to harm farming practices that have existed for centuries with minimal documented health risk.

So, it seems like the worst of this bill has been amended, and hopefully the rest will work towards creating a safer industrial food supply.


  1. says

    I tried to follow this while working this afternoon by checking tweets and CSPAN feeds, but it got pretty confusing. Thank you for breaking it down and sharing the highlights!
    .-= Cathy Payne

  2. Larisa Sparrowhawk says

    I believe I have the last copy of HR2749 in my lap; it was “ordered to be printed” yesterday. I have a number of concerns still.

    1. It gives the Federal government jurisdiction over interstate commerce, still, which violates the Constitution. There is no exemption for farmers, homesteaders or small processors who sell only in their own states.

    2. The exemption for those who sell over 50% direct will of course require some of us to PROVE the mix of our business, which means government inspection of our paperwork, farms, etc anyway. I own a small local food store. I am the sole owner and the sole employee and currently have nothing of my own in the store other than tomatoes and cucs, but will have goat in a month and eggs and bread as soon as my egg processing room and kitchen are licensed. Now you’d THINK since I am sole owner, this would be direct to the public, but since I have a storefront instead of an on-farm stand, it is not. My tiny little 9 acre farm will probably end up costing me more money and heartache than it is worth. Those folks who sell at a farmers market and at a retail store or establishment will have to watch their sales very, very carefully and keep their records for years, just in case. I know someone who underreports farm market sales because the market takes a percentage and he thinks that is so unfair even though he signed a contract. This person will pay eventually, but to the Feds rather than to the market he’s cheating, because he also sells to a restaurant.

    3. Despite what seems to be the popular consensis that the 50% rule protects most small operations, I know a lot of family farms and homesteads that will fall under these rules. They have zero employees and due to lack of time (full time jobs, full time families?) or lack of sales skills, sell more items to stores than to individuals.

    4. This isn’t directly NAIS because this bill regulates how the FDA handles food. The USDA has jurisdiction over most livestock products (meat, poultry AND eggs). However, there are still quite a few NAIS-like provisions in the bill for those who don’t sell more than 50% directly to consumers according to the government officials who inspect them. (I take the worst case scenario when inspections are involved, for good reason since I know at least a dozen farmers who have had USDA agents on their properties, despite no wrongdoing on the farmer’s part.) If you “misbrand” your products, which would include simply not registering your facility and securing a “unique identifier” (NAIS language) or paying the fee, you could be fined, your product could be seized, you could be thrown in jail, you could be quarantined, your animals could be seized… and possibly you could lose your property itself. You still have to provide full traceback (information about your growing methods and ingredients, including where you purchased them) and traceforeward (who distributes and/or buys your product, including their name, address and telephone number).

    5. Something I haven’t seen discussed nearly enough is THIS ISN’T A ONE TIME FEE! This is an annual fee of $500. How many small producers honestly make a profit big enough to cover it? A lot of times people who sell small quantities of foods are trying to recoup some of their costs for their lifestyle in the country and would roll their eyes if you suggested they made a profit. I’ve had assorted livestock for 11 years. I lost money all 11 years on goats and sheep, but I love them so I keep them anyway. I used to make money on chickens. Since Oregon requires I build a separate room with three sinks, a separate refrigerator, have it inspected and pay a fee before I can sell eggs to any retail facility, even my own, I will lose money on chickens for at least this year and the year following. I gutted a bathroom and have gotten no further because I ran out of money. I can’t wait to see how much it costs me to get the licensed kitchen done. Virtually all states require licensed kitchens before you can sell even one loaf of bread or jar of jam. The costs to sell anything more complicated than produce were ALREADY quite high before this bill. HR2749 also allows the fee to be altered in future years, and you can bet it will go up. Does it reassure me that the maximum amount is $175,000 for someone who owns multiple facilities? Hmmm…. do my home and my store count as multiple facilities? There is a note that fees may be refunded for years 2011 and up if the fees exceed the salaries and expenses of the FDA, but I am not holding my breath. The FDA, despite its inefficiency, is not known for frugality. Any fees due and unpaid within 30 days of the due date are “treated as a claim of the United States Government subject to subchapter II of chapter 37 of title 31, United States Code.” Folks, I don’t know what this means and I am afraid to look it up. I suspect it gives them seizure rights.

    6. We still have to submit HAACP plans, no matter how small our facilities are, unless we can prove we sell more than 50% direct to the public. The FDA is allowed to decide your HAACP plan is not good enough and to change it. This means you are subject to their whims about stainless steel versus fomica or ceramic, certain brands of cleaners they like or dislike, whether your dishwasher is appropriate, whether you can use your licensed kitchen for preparing home goods, even if the state allows it, what could happen if your sink backed up and how you could prevent that, whether you have enough sinks, what could happen if you became near sighted and your lights were no longer placed and aimed well enough to help you and what you could do about that, what could possibly go wrong if your refrigerator didn’t get cold enough one day and the steps you could take to prevent that, what could possibly go wrong if a visitor came in without a hairnet on and how you could prevent that, what could go wrong if a bird flew in through an open door and how you could prevent that, etc, etc… if it seems I’m getting silly, it’s because that’s how HAACP is. And if somehow the government finds out a bird did fly in, you have to prove somehow that you have “established and implemented procedures to ensure that… no product from such facility enters commerce!”

    6. The Secretary of Health and Human Services, not your very clean grandmother who taught you how to clean your kitchen, gets to decide what is acceptable. He gets to “review international hazard analysis and preventive control standards” to decide. I’ll bet vinegar and, lemon juice, things used by our ancestors, won’t be on the approved list. I got a ridiculous list of approved cleaners for eggs. By brand. Yaay.

    7. We have to submit our products for testing. They get to decide who performs the test. I know two Virginia goat cheese manufacturers who had cheese seized and sent off to labs. They both sent samples of the same cheese to facilities they knew. Surprise! The results were different. One of the farmers said the inspectors did not pack her cheese on ice and mailed the package off. If you dispute the results, you get to pay for both tests, a retest, fines, and perhaps a lawyer once your facility is shut down. Plus lost business while it is shut down and public bad press, even if you are not guilty. You’d be surprised if you knew how reluctant newspapers were to handle cases like this. I thought reporters had an obligation to report the truth. I began farm rights activism in 1999. I have seen very little media coverage, no matter how badly a farmer has been wronged. If it weren’t for the internet, the people would never know.

    8. The FDA still gets to decide how we may grow, harvest, process, pack, store, sort and transport produce that they consider potentially risky. Considering recent news, this could mean lettuce, spinach, tomatoes, peppers, almonds, pistachios, peanuts…

    9. The FDA still gets to decide what they consider a risky facility to inspect at least once a year. If you make raw goat cheese, watch out. They’ll be interupting your sleep, your breakfast or your four year old’s birthday party to demand an inspection without warning and they WILL go in your kitchen, bathroom, bedrooms, living room, etc. They will. They are not required to have a search warrant. A warrant limits the search in time, place and scope. Guess what? No warrant? They can be in your house for hours, even days. And guess what? At least some of them will be packing guns! How do I know this? It’s happened before (USDA, though.)

    10. The FDA can also modify the inspection schedule and inspect a facility more often than what is stated in HR2749. Yep, it says so on page 30.

    11. The FDA can take your address book, your computer, your written records, your cell phone. Will you get them back? Possibly. Will they read your personal business? Possibly. At this very moment, I probably have four or five dirty jokes stored in the text function of my cell phone. Do I want the FDA reading them? Probably not.

    12. The FDA can chose to interview your kids, your neighbors, your customers, your interns, or whomever else they want. Can you honestly say that if two or three agents in black show up at your neighbor’s door asking questions about you, and at least two agents are packing, that your neighbor will assume you are still the sweet person they know and will defend you? Probably not.

    13. The FDA can access your records remotely. HR2749 does not specify that they will do so, but it has been rumored in Washington state and Vermont that both state and USDA officials have remotely accessed farmer’s computers. You know, hacked.

    14. There are a number of places in the bill where the words “EXCLUDING farms and restaurants” have been removed and where “farm” has been inserted where “factory” was used in previous versions of the bill. There is a section where the clause that the Secretary of the HHS no longer has to have reason to believe that a health concern may exist and now only has to believe that there is misbranding or recordkeeping errors. See pages 35 and 36. On page 64, dealing with surveillance, search and seizure,”credible evidence” was replaced with “reason to believe” and ” serious adverse health consequences or death to humans or animals” is replaced with “adulterated, misbranded, or otherwise in violation of this Act.”

    15. It is clear that handwritten records will not satisfy these people. For one thing, they do not comply with traceability requirements.

    16. Restaurants and grocery stores must keep records of all food purchased and sold or used as ingredients. No more casual cash transactions, even for something that seems totally harmless like green beans.

    17. If the FDA deems your facility does not comply and they shut you down, you get to go through the reinspection process and pay all the associated fees for this. Don;t assume this is another $500 – although you’ll pay that, too. No, they’ll charge you man hours for however many people they decide are necessary to inspect you. You may also have to pay man hours for your facility to be inspected and shut down. If you make a few dozen jars of jam a week, you may see one inspector, or perhaps three or four or six… depends on whether you are a risk, I suppose. I noticed that the people
    I know who were treated the worst by state and federal ag agencies also had licenses to carry a gun. So if you chose to exercise your Second Amendment rights, you may pay emotionally and finacially with a veritable SWAT team in your kitchen. Supposedly none of the inspectors will have a conflict of interest. This sounds like it is to protect you, but what it is likely to mean is that the inspectors will be from another state. The fact that you will never see your inspector in the grocery store makes them a lot less likely to treat you with kindness.

    18. The Secretary of the HHS can provide information to state, federal and local agencies at will, but may not necessarily disclose this information to you. This could result in your having no idea what the people in your house think you are guilty of!
    It gets even better, they may also release information to foreign governments, international organizations, the public in general and the IRS. You don’t have to be proven guilty in a court of law. You could simply sell “misbranded” food.

    19. Quarantines are still in effect. There is no set mileage, but often it is a wider geographical area than you would expect, 6-25 miles. From my house driving 25 miles south I pass TWO WHOLE TOWNS! And I live in a rural area. Quarantines do not affect only the farm or factory suspected of causing a health concern. They affect everyone who produces food. They can limit your movements and require your “food transport vehicle,” which is usually the only vehicle that runs on a farm (!) not move off your property. So you can’t go to the grocery store, the post office, the bank or your job…

    20. The fines are way steep! Places that violate rules but can not be determined to do so knowingly: up to $20,000 for an individual but also up to $50,000 for any one proceding regarding that individual (I suppose this means if they find two or more violations). Places with more than one individual involved (I’m thinking Joel Salatin, who has family members on the same farm operating slightly different business ventures) can face fines of up to $250,000 or $1,000,000. Fines double if they think you knowingly violate the rules.

    Etc. I’m tired. It is 3am. You get the idea. This bill is not harmless. We must keep a similar bill from passing the Senate and we must chastise our Representatives soundly for voting for it.

  3. esbee says

    control the food and you control the people…communism may have died out in Russia but is alive and well in Amerika. People will have to get very creative in how they help feed each other. Will these rules apply to illegals? How many laws like this that micro-manage our very rights will it take before we pull a Rosa Parks and just not obey them because they are so unfair or go against the constitution. (Rosa Parks the black lady that refused to give up her seat on the bus to a white person!) The blacks wanting equal rights used her arrest as the impetus to start their boycots that led to their
    getting all sorts of unfair laws repealed. Farmers and ranchers who supply the food to this country have essentially become the “second-rate citizen, i.e. I would like to say the N word but black man will do” of the 21st centry.
    Martin Luther King said that we have the moral responsibility to obey good laws but to also disobey bad laws. And this bill and NAIS are very very bad laws and regulations.

  4. says

    This bill, its passage, and the very way that it was passed is extremely disturbing. Apparently they don’t get that “No means no.” Classic government at its worst.

  5. says

    Walter — I used to be very involved in politics. When I realized that just about every bill was passed this way — rammed through without real debate, not even read by most congresspeople and their aides, with a lot of vague language that can be interpreted in truly scary ways, I had to stop. It simply got too depressing. I also decided that my five year plan was to to move out of the country. Whenever I tell most people this, they roll their eyes and call me “un-American.” How dare I give up on the freest country on earth? The best country there is? The city on a hill for democracy?

    If you’re not in tune with what’s happening in our political sphere, it can be easy to go through your day to day life without realizing what a great body of law has been amassed that robs you of your individual liberty. Don’t get me wrong, I *hope* the federal government doesn’t seize the power that it’s given itself and use it for our harm. But just looking at history, when has that ever happened?

    I know it sounds silly, but it truly bothers me that people have so much faith in their government’s good intentions. In their heart of hearts, most people don’t. Most people make jokes about politicians. Most people make jokes about big industry lobbyists. But then give them examples of the potential future government overreach written into our laws, and they totally balk. “Surely it won’t come to that? Surely they’re reasonable people and won’t enforce these laws this way?” It’s a sad dichotomy that most people haven’t resolved.

    Larisa — Thank you for your thorough reading of the bill. As I wrote earlier in the post, I will always remain skeptical about how our government chooses to enforce these laws. On the one hand, the law is written in such a way as to grant so much power to the government to be scary (which your comments surely highlighted for us.) On the other hand, you’ve got the assurances of the people authoring the bill that say, “I realize there are other small farms or small local processors who will not fit under these exemptions who may face a hardship and I promise to work with my colleagues to address these concerns as the bill moves into conference.”

    One thing I noticed in my day of real political action was that MOST laws grant the federal government far more power than it actually uses. Of course, that’s not an excuse for writing the laws with such vague language. It still thoroughly bothers me that we have this great big body of laws that can be used against us.

    My point is simply that you could sit down and read the text of just about any federal law and find hundreds of ways that it could be interpreted to do us harm as we go about the business of our day to day lives. In most cases, the federal government doesn’t use that power because the spirit of the law was geared for something else. For example, I’m not certain that they’ll choose to interpret farmer’s markets, retail market, and restaurant sales as NOT direct to consumer. That’s because the spirit of the law is written to provide regulations for those selling to distributors or agribusiness conglomerates.

    Of course, I’d *love* to see better written laws in the first place. And we will NOT STOP taking this fight to the Senate, where another version of this law will surely pass. We can let our Senators know what sorts of protections we want in place so that the honest men and women growing our food aren’t turned into criminals, and your list of concerns is a great place for us to start.

  6. says

    I’ve read this bill and it is very scary. Unfortunately by passing such broadly, badly worded laws the leave the interpretation to the bureaucrats who can then abuse the laws and resulting regulations to persecute whom ever they please. It just gets worse.

  7. says

    Kristen, how about we form our own country? Not land based, or at least not contiguously. Rather dots across the globe. Gradually they’ll expand, infiltrating the nation states freeing the world. Ah, what windmills we tilt…

  8. says

    LOL — Isn’t that sort of what we’re already doing? I believe people are as free as they act. If a culture embraces a free mindset, then it is free de facto, despite what the laws say.

  9. Bill says


    I agree that we need to stop this bill in the senate.

    What online groups opposing 2749 and NAIS have you found to be the best organized?

    I’ve been following Farm and Ranch Freedom Alliance, Health, and Farm to Consumer sites.

    What is your opinion on the Kaptur/Farr letter described in the quote below?


    “Representatives Marcy Kaptur (OH-9), Sam Farr (CA-17), Maurice Hinchey (NY-22), Jesse Jackson Jr. (IL-2), Peter Welch (VT-at large), Chellie Pingree (ME-1) and Earl Blumenauer (OR-3) last week submitted a letter to the House Energy and Commerce Committee with specific proposed changes to HR 2749 that addresses many of the concerns raised by the sustainable and organic agriculture community.

    It is important that you call your Representative today, Wednesday, by midday, and ask them to join the effort to protect small and mid-sized family farmers, the environment, and consumer choice by supporting the provisions in the Kaptur-Farr proposal to HR 2749. Please see the background section below for more information “

  10. Chris S. says

    Could someone share with me the location of the “Small Farmer Exemption” in the passed version of the bill? All I can find is an exemption (on Page 57) that exempts small farms from the Tracing System for Food subsection – NOT from the $500/yr fee or all the paperwork/inspections/etc.
    Even if this exemption exits, I fear that this bill (as it is currently written) will badly cripple the local food movement! As I walked through my local Farmer’s Market earlier today, I looked at the various “food producing” vendors (some selling a few excess squash, or a couple jars of homemade jam), and I know there is no way they will go through the expense and hassle of complying with HR 2749!
    It also appears that USDA regulated meat/poultry/egg producers are EXEMPT from the bill?! Aren’t mad-cow disease and tainted beef the sorts of concerns this bill was supposed to address?

  11. kstrating says

    Has anyone found what Chris S. is looking for? As poorly written as this bill is, & considering the sentiment that Kristen’s last note has, it still leaves me wondering about the fees / exemptions for those of us that have 10 chickens, 2 goats, & a garden. Chris’s questions are exactly mine.

  12. JRBeaman says

    You gotta be drunk, or blind!

    “So, it seems like the worst of this bill has been amended, and hopefully the rest will work towards creating a safer industrial food supply.”

    This is a blatant bill, being fast tracked, that is about control of our food supply not food safety. Until the corporate influence of the Argo industry is removed from all these bills none should be passed. These bills are about promoting industrial farming and destroying small farms and ranches as well as local and organic farming. They are about controlling the people by controlling our food supply. They are full of unconstitutional actions and infringements on our basic freedoms: ALARMING PROVISIONS:

    1) * Power to Quarantine a Geographic Area; the FDA can also Halt
    All Movement of All Food in a geographic area.
    2) * Random Warrantless Searches of Business Records.
    3) * Regulation of How Crops Are Raised and Harvested.
    4) * Establishing a Tracing System for Food.
    5) * Severe Criminal and Civil Penalties.
    6) * Annual Registration Fee of $500.

    Warrantless searches of business records??? King Waxman, His Royal Highness Dingell and every other member of congress that supports this bill needs to read the U.S. Constitution. Amendment IV says, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Legislation like this makes America a banana republic.

    They are not going to pay any attention to our comments and don’t seem to care about what the people want, now they are raiding the Amish farms.

  13. Eric Brown says

    Regarding exemptions for farms that only direct-market, I wouldn’t be reassured. According to my state cooperative extension agent charged with educating farmers on these changes, there are tentative exemptions for “facilities registration” and “traceability requirements,” but such farms would ultimately still be subject to all the same rules and record keeping, and subject to the same inspectors and regulators. Consider also, how many indirect ways regulators can put small farmers out of business. Take the farmers’ market I sell at, for instance. It’s organized by a chapter of the rotary club and meets in a parking lot belonging to the city. It’s easy to imagine that the city wouldn’t allow the rotary club to use the space unless the rotary club mandated that all farmers practiced what the government defines as “Good Agricultural Practice,” for fear of liabilities arising from cooperating in “bad agricultural practice.” But it looks like everyone is going to be forced to farm according to government rules and record keeping requirements anyway.

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