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Federal Update, Summer 2006

By Bill Sanda

I have much news to report in this issue's Federal Update, starting with developments in the proposed National Animal Identification System. This section was prepared with the help of Judith McGeary, our Austin, Texas chapter leader, and Executive Director of the Farm and Ranch Freedom Alliance, www.farmandranchfreedom.org. Please see the new USDA Guidance on NAIS and Small Farms and Non-Commercial Producers below.

NAIS Update

US Department of Agriculture (USDA) Secretary Mike Johanns held a tele-press conference on Thursday, April 6 in which he updated us on the development of the National Animal Identification System (NAIS). The good news is that USDA will not propose regulations in July 2006 for NAIS as originally scheduled and the original timelines were extended for the program. The bad news is that the USDA has simply decentralized the system without significantly changing the requirements. (Please see Wise Traditions Winter 2005/Spring 2006 edition for a complete description of NAIS along with original timelines at www.westonaprice.org/federalupdate/aa2006/infoalert_032006.html.)

At least we now have time: time to educate people about this program; time to work with our state agencies; and time to place pressure on our elected officials. For current information on the status of NAIS in your state, please see www.libertyark.net.

Regarding the bad news, perhaps USDA recognized the fact that handling NAIS as a nationalized program in a single database was technologically impossible. Perhaps USDA hopes to avoid a direct challenge to NAIS by not adopting regulations that could be challenged in court. Or, perhaps USDA hopes that those who are against NAIS will not be able to effectively oppose a system that is scattered through 50 states and multiple private entities. The new plan calls for implementation of NAIS by the states and private entities, and for USDA to have access to the information through a metadata portal. This is no less burdensome or intrusive on animal owners than the original plan.

NAIS poses a serious threat to all farmers, ranchers, livestock owners and companion-animal owners, whether they are organic or conventional, small or large, involved with animals for business or for pleasure. Across the country, all persons with even one horse, cow, chicken, pig, goat, sheep, exotic animal or virtually any other livestock animal on their premises will be required to register their homes and property into a database and subject their property and animals to government surveillance.

Each animal would be individually identified, physically tagged (in many cases with radio frequency tags or microchips), and every "event" in the animal's life (including birth, movement to and from premises, and death) reported to the government or to a private industry database that the government has the power to access. The only exception from individual identification and tracking is for large industrial agricultural producers, which will be able to use just one group number for an entire confinement house of livestock. Small producers who do not manage their animals in isolated groups will not qualify for this convenience.

NAIS does not distinguish between large corporate factory farms and the smallest family producer, hobby farmer or the grandmother with a few laying hens. Many families could be branded as criminals because of their religious convictions and concerns over privacy and property rights. Many small and medium-size farmers and ranchers may be driven out of business, and the consolidation of our food supply into the hands of a few large, multinational corporations will continue.

NAIS sounds so absurd that many people wonder how it came about. Initial proposals for an electronic identification and tracking system were discussed by various individuals involved in the cattle industry back in the early 1990s. Then, in 2002, the National Institute for Animal Agriculture (NIAA) established a task force to create a national animal identification system. While NIAA may sound like a public interest organization, its membership includes the large commercial agricultural interests, such as Cargill Meat and the National Pork Producers Council. And many NIAA members are companies that provide tagging and tracking equipment or software services, such as Global Vet Link, Allflex, and Digital Angel & Electronic ID.

Having developed the concept of a national animal identification system, the NIAA established a task force that included the USDA. The USDA then established a team that developed NAIS in its current form and created species-specific working groups. The lists of working group members can be found on USDA's website (http://www.usda.gov/nais). Many of the connections between working group members and corporate interests are obvious, while others are not and require some research to discover. Notably lacking is any real representation of small farmers and ranchers.

USDA's "Update" to NAIS

The documents released by USDA on April 6 include "Strategies for the Implementation of NAIS" ("Strategies") and "Administration of Official Identification Devices with the Animal Identification Number" ("Administration"). Unlike the Draft Plan and Draft Strategic Standards from 2005, these documents have not been published in the Federal Register. (To review these documents, please see www.usda.gov/nais.) A transcript of the press conference can be found at (www.usda.gov/wps/portal/!ut/p/_s.7_0_A/7_0_1OB?contentidonly=true&contentid=2006/04/0121.xml.)

While USDA's press release and Strategies document repeatedly discussed how NAIS is a "voluntary plan," the USDA has set specific benchmarks. The Strategies states:

"USDA will evaluate whether the participation levels are increasing at rates that will achieve full participation by 2009. Based on that analysis, USDA will determine whether the market-driven incentives, along with industry "buy-in" for improved animal disease programs, is resulting in adequate participation and growth rates for NAIS to be successful by the established target dates. If participation rates are not adequate, the development of regulations through normal rulemaking procedures will be considered to require participation in certain aspects of the program." There is no definition for "adequate participation" or "growth rates." The benchmarks are set as follows:

January 2007: 25% of premises registered
January 2008: 70% of premises registered; 40% of animals registered
January 2009: 100% of premises registered; 100% of "new" animals ("New" is defined as animals born in the last year); 60% of animals less than 1 year of age have complete movement data.

Consistent with the goal of 100 percent participation, the Administration document states: "To have a successful animal disease management program, all producers and affected industry segments will have to participate eventually."

In other words, the USDA contends that 100 percent of premises must be registered and that all animals born after January 2008 will have to be individually identified to meet its goal for January 2009. And if that goal is not met, we can expect the implementation of federal regulations. Indeed, by setting the intermediate benchmarks, if USDA does not find "growth rates" adequate, it may issue proposed regulations even before 2009.

USDA still claims (incorrectly) that it has statutory authority to implement a mandatory NAIS if it chooses to. At the tele-press conference, when a reporter asked, "If you wanted to make this program mandatory, is this something you could do through the rulemaking process within USDA, or would you actually need Congress to put out some new legislation?" Secretary Johanns replied: "We would not. We can do that today. We would not need new legislation."

One of the confusing things about these documents is that USDA appears to have underestimated the number of premises and animals involved. The Strategies states that USDA estimates that there are 2 million premises and 40 million newborn animals annually. This leaves open the slight possibility that, if USDA reached those numbers, it might choose to ignore the fact that these numbers would not actually signify 100 percent participation. But the USDA has not bound itself to that limitation. Rather, the Strategies defines "premises" in essentially the same way as the 2005 Plan "[Premises that need to be registered by 2009] to include all locations that manage and/or hold livestock and poultry."

Moreover, even as it provides these low estimates, the Strategies reiterates that USDA's goal is for 100 percent of premises and 100 percent of new animals to be registered. And the USDA insists on its ability to mandate 100 percent compliance: "If the marketplace, along with State and Federal identification programs, does not provide adequate incentives for achieving complete participation, USDA may be required to implement regulations." Even if USDA were content with those 2 million registrations and 40 million animal identifications, many small and medium size producers will have to be included to reach those numbers, placing the heavy burdens of NAIS on their shoulders.

USDA also appears to be trying to quieten the opposition from the horse and poultry owners. The Strategies focuses on cattle in its specific examples (such as estimates of the number of cattle killed each year) and the Administration document identifies cattle as the priority for the animal identification stage. But neither document defines "animals." Thus, we have to rely on the definitions provided in the published plan from 2005, which would include all livestock, including poultry and horses. Indeed, the Cooperative Agreement that was also released by USDA on April 6 includes the following Purpose statement:

"The purpose of this CA [Cooperative Agreement] is to facilitate the deployment of an information technology infrastructure that will enable animal health officials to access animal identification, tracking, and movement data from data sets other than those maintained by the Federal government as necessary to support animal disease control and eradication programs of pests or diseases to protect all livestock, i.e., all farm-raised animals, in the United States. This agreement assists in implementing an interim/development phase to enable private organizations and States with systems that meet minimum requirements to participate in the development of the infrastructure for the timely advancement of the National Animal Identification System (NAIS)."

The words "eradication programs" should raise concerns for any animal owner.

Similarly, USDA appears to be trying to deflect the criticism of the technology aspects of NAIS. Thus, the Administration document allows for non-RFID tags to be used. At the same time, USDA clearly intends to move the entire program towards electronic identification: "At this time, USDA views visual identification tags as a starting point for the identification of cattle to ensure greater participation among all producers." Once every premise is registered in state and private databases, it would be easy to require the animal owners to move away from this "starting point" to the radio tags and microchips that would profit the technology industry.

There is no mention of abolishing the poultry or equine working groups. Nor is there any change in the composition of the working groups, so that they remain dominated by the large associations (which are potentially candidates for operating the private databases at a profit), large agricultural companies (which support NAIS in order to improve the export market), and technology companies (whose self-interest is obvious).

Overall, the April 6th announcement presents a small victory, while still showing how much work is in front of us. We have gained precious time and no longer face the imminent threat of regulations. Yet, the USDA has not changed the true substance of NAIS. Rather, we face a fight in every state to prevent burdensome and pointless regulations, while still facing the threat of federal regulation if USDA believes that there is insufficient progress.

Sugar in Our Children's Diet

A recent Government Accountability Office study found that 99 percent of high schools, 97 percent of middle schools and 83 percent of elementary schools have vending machines, school stores or snack bars that sell mostly unhealthy snacks and drinks (www.gao.gov). Vending machines have proliferated in schools, in part because a portion of the proceeds from every sale is returned to the schools. But studies have shown that vending machines can also drive down food sales in cafeterias, which costs schools revenue.

Meanwhile, reports accumulate on the downside of vending machines in schools. According to a March 2006 study by researchers at Children's Hospital in Boston, teenagers aged 13 to 18 who drank one 12-ounce sweetened drink each day--such as a soda, sports drink or lemonade--in addition to their regular diet gained an average of one pound every 3 to 4 weeks (http://pediatrics.aappublications.org/cgi/content/abstract/117/3/673).

As the disastrous health consequences of sugar in children's diets becomes more and more apparent, the administration, Congress and the industry have jockeyed to propose a variety of solutions.

The Beverage Industry and Voluntary Guidelines

The Alliance for a Healthier Generation--a joint initiative of the William J. Clinton Foundation and the American Heart Association--worked with representatives of Cadbury Schweppes, Coca-Cola, PepsiCo and the American Beverage Association to establish new voluntary guidelines to limit portion sizes and reduce the number of calories available to children during the school day. Under these guidelines, announced on May 3, only lower-calorie, supposedly more nutritious beverages are to be sold to schools (www.clintonfoundation.org).

Under the voluntary guidelines, elementary schools will only sell water, and eight-ounce, calorie-capped servings of certain juices with no added sweeteners and servings of fat-free and low-fat regular and flavored milks. (Low-calorie guidelines allow the industry and school administrators to justifty depriving children of the butterfat they need for normal growth and development.) Middle schools will apply the elementary school standard with portion sizes increased slightly to 10 ounces.

In addition to the beverages available in elementary and middle schools, high schools are to sell no-calorie and low-calorie drinks, such as bottled water, diet and unsweetened teas, diet sodas (aspartame health issues were clearly overlooked by the Alliance), fitness water, low-calorie sports drinks, flavored water and seltzers, as well as light juices and sports drinks. At least half of available beverages in high schools will now be water, no-calorie, and low calorie selections. Light juices and sports drinks will be sold in 12-ounce containers with no more than 100 calories per container, while 100 percent juices and non-fat and low fat milks will also be sold in containers up to 12 ounces.

Sales of full-calorie carbonated soft drinks by students during school hours have fallen by 24 percent since 2002, while sales of water increased by 23 percent, diet soft drinks grew by 21 percent and juice rose by 15 percent. But sales of sports drinks, which tend to be high in sugar and sodium, jumped by 70 percent, according to a study paid for by the American Beverage Association, an industry group (http://www.ameribev.org).

Under the terms of the agreement, the beverage industry will work to spread these standards to 75 percent of the nation's schools prior to the beginning of the 2008-2009 school year. The industry will strive to fully implement these guidelines prior to the beginning of the 2009-2010 school year, provided schools and school districts are willing to amend existing contracts. Please note that these guidelines are strictly voluntary, not mandatory. The big soft drink companies can only request that their bottlers agree to these terms; the bottlers do not have to support this agreement. And, schools do not, either. Under the deal, schools will have to renegotiate their contracts with soft drink bottlers.

Here's another kicker: diet soda with artificial sweeteners, sports drinks very high in sugar, and other empty-calorie beverages with no nutritional value will still be allowed in high schools. And parents concerned about soda advertising in schools will not be pleased with the agreement. Not a word is mentioned about the ever-present marketing children are subjected to daily in the form of branded score boards, school supplies, sports bags and cups (just to name a few), which is required by exclusive Coke and Pepsi contracts. Branding is really the main purpose of these arrangements. The soft drink companies may shift a few products around or serve up fewer calories with this new deal, but what's most important to them is maintaining access to young and impressionable consumers in a captive environment. In addition, "voluntary" guidelines could potentially undermine ongoing grassroots efforts, state legislation, and other enforceable policies.

Congress Introduces Anti-Junk Food Legislation

The House and Senate introduced a bipartisan bill, the Child Nutrition Promotion and School Lunch Protection Act, on April 6 to reduce junk food in schools by requiring that any food and drinks sold on school campuses, including in vending machines, meet the same federal nutritional standards as food served in the cafeteria. The legislation, S. 2592 and HR 5167, would also force the USDA to rewrite its dietary guidelines for schools to limit the amount of sugar and sodium, as well as portion sizes, in response to a growing obesity epidemic among children.

Sponsors of the bill are Senators Lisa Murkowski (R-AK) and Tom Harkin (D-IA) and Representatives Lynn Woolsey (D-CA) and Rep. Christopher Shays (R-CT). They predict the bill will be approved, although it may not get a vote in Congress during this election year.

The bill is the first major federal effort to address junk food in schools, although public health groups and parent associations already have convinced many state lawmakers and local schools to restrict unhealthy snack foods. The proposal is backed by the Parent Teacher Association, the School Nutrition Association, the American Heart Association, the American Diabetes Association, the California Center for Public Health Advocacy and other health-related groups.

Under current law, the federal government can set nutritional standards only for meals served in the school cafeteria. The bill would empower the USDA to set regulations that also apply to food sold in vending machines and elsewhere on school grounds. Public health advocates also complain that the current federal school meals program is flawed because it reimburses schools for serving certain snack foods--such as Oreo cookies, Cheetos and Snickers bars -- but not for some healthier items.

Marketing Junk Food to Children

On May 3, the Department of Health and Human Services and the Federal Trade Commission jointly called on the food, advertising and entertainment industries to limit the marketing of junk food to children. The agencies' report stated that the industries should do so voluntarily, by setting minimum nutrition standards for marketed foods. The report also said that the industries must participate in promoting healthful foods in order to combat childhood obesity. The report's recommendations, however, were not as strong as the ones found in a 2005 report by the Institute of Medicine that called for Congress to mandate changes if food and beverage companies fail to promote healthful products in the next two years. The national science advisory panel also said licensed characters should not be used to promote unhealthful products (see www.washingtonpost.com/wp-dyn/content/article/2006/05/02/AR2006050201682.html).

Food Uniformity Bill

Despite opposition from many environmental, health and consumer rights organizations, 39 state Attorneys General, 7 state Governors, the National Association of State Departments of Agriculture, the Association of Food and Drug Officials, the National Conference of State Legislators and the Wisconsin Department of Agriculture, the House of Representatives passed HR 4167, The National Uniformity for Food Act, on Wednesday, March 8th.

Pushed forward by the food industry under the guise of promoting "uniformity" of food safety and labeling laws in the US, the bill would require all state food safety laws to be identical to requirements of the Federal Food and Drug Administration (FDA). If the FDA has not passed a regulation on a food threat, then all state regulations on that threat would immediately be voided. And since the states regulate many food safety issues not covered by the FDA, many food safety laws would be voided and replaced with no law at all.

The bill passed the house with a vote of 283 to 139 even though not a single hearing was ever held on the issue. (To see how your Representative voted go to http://clerk.house.gov/evs/2006/roll032.xml.)

The bill would also preempt approximately 200 current state food safety and labeling laws, including allowing the sale of raw milk, and is likely to preempt about 40 future state food laws, according to Congressional Budget Office estimates. This would trigger state petitions to the Food and Drug Administration for exceptions from federal preemption for each of these 240 state laws under this legislation at a cost to FDA of $100 million, according to a report produced by The Center For Science in the Public Interest and the Natural Resources Defense Council (http://www.nrdc.org/legislation/factsheets/leg_06030701a.pdf).

According to WAPF member and lawyer, Pete Kennedy, the House bill would require the states to adopt federal standards that define adulterated foods. Under the federal standards raw milk and raw milk products (except for raw cheeses aged 60 days) are adulterated foods. The FDA has issued a regulation banning the interstate shipment of raw milk under the power granted to it by Congress to regulate communicable diseases.

The FDA has also issued standard-of-identity regulations requiring that milk shipped interstate for human consumption be pasteurized. Only the sale of raw milk for pet consumption would be legal since there's no federal prohibition against the interstate sale of raw pet milk. State laws legalizing the sale of raw milk for human consumption would no longer be valid. If a State passes a law requiring shareholder dairies to obtain a Grade A license, then all shareholder dairies (cow share programs) would become illegal if the federal bill becomes law.

While special interests trumped public interest in the House, there is a strong chance to stop this legislation in the Senate. At least seven Senators have already come out in opposition to the Food Uniformity bill. Our Senators need to know that we oppose any attempts to strip a state's ability to protect and inform their own citizens concerning food safety and labeling issues. (To contact your Senator, please see http://ga3.org/campaign/fooduniformity_house_passage.)

Food Labeling

Much is happening in the area of food labeling for locally grown organic products, trans fats and allergens, all of it representing a step in the right direction.

A Label for Locally Grown Foods

A new certification and labeling system was recently initiated in Western Montana that goes a step beyond federal "USDA Organic." The Western Montana Sustainable Growers Union has created the "Homegrown" label, which guarantees that products sold to consumers are not only organic, but were also produced within a 150 mile radius of the marketplace. The Homegrown label also aims to promote fair labor practices and farmers with the Homegrown certification are urged to purchase supplies locally to keep money in the community. According to Lynn Byczynski, editor and publisher of Growing for Market, a national magazine dedicated to farmers' markets, "What they (the Growers Union) are doing there is not uncommon. There are groups like this bubbling up all over the place in response to the corporate takeover of organics." (For more information see www.organicconsumers.org/btc/montana060420.cfm.)

Trans Fat Food Label

As of January 1, 2006, food manufacturers must list trans fats on the food nutrition label. The FDA final rule on trans fatty acids requires that the amount of trans fat in a serving be listed on a separate line under saturated fat on the Nutrition Facts panel. However, trans fat does not have to be listed if the total fat in a food is less than 0.5 gram (or 1/2 gram) per serving and no claims are made about fat, fatty acids or cholesterol content. If it is not listed, a footnote will be added stating that the food is "not a significant source of trans fat."

In 1994, the Center for Science in the Public Interest (CSPI) filed a petition (amended in July 1998) with the FDA requesting that the agency take steps to require trans fat to be listed on nutrition labels and claims.

In response to the CSPI petition, FDA issued a proposed rule in the Federal Register on November 17, 1999, requesting regulations to require that trans fat be listed on nutrition labels. In total, FDA received over 2,700 comments that addressed the scientific, economic, policy and legal basis for the rule. In finalizing this rule, FDA relied on scientific reports, expert panels, and studies from the Institute of Medicine/National Academies of Science (IOM/NAS), the 2001 Report of the National Cholesterol Education Program, and the 2000 Dietary Guidelines for Americans. The IOM/NAS report recommended that "trans fat consumption be as low as possible."

The FDA estimates that three years after the effective date of January 1, 2006, trans fat labeling would prevent from 600 to 1,200 cases of chronic heart disease and 250-500 deaths each year. Based on this estimate, trans fat labeling would realize a savings of $900 million to $1.8 billion per year in medical costs, lost productivity, pain and suffering. The FDA also estimates that the industry will incur a one-time cost of approximately $140 to $250 million. These costs include: determining the amount of trans fat in the food products, relabeling the Nutrition Facts panel to add trans fat, and reformulating products voluntarily to decrease the amount of trans fat.

It should be noted that the FDA is not prohibiting food manufacturers from using trans fat in packaged foods. Rather, the FDA is requiring food manufacturers, processors, and distributors to label the amount of trans fat in a serving of food on the Nutrition Facts panel. We should also note that throughout the 1980's CSPI stated publicly that trans fats were not harmful to humans; CSPI was also responsible for forcing the fast food industry to adopt partially hydrogenated vegetable oils, high in trans fats, for deep frying purposes through highly publicized demonstrations against saturated fat and cholesterol in fried foods.

The new trans fat labeling requirements also leave the food industry with an important loophole--mono- and di-glycerides, usually composed of trans fatty acids, do not have to be labeled as fats or included in the trans fat label. Expect to see an increase in these ingredients in processed foods.

Allergen Food Labels

A new food labeling law now requires food manufacturers to disclose in plain language whether their products contain any of the top eight food allergens. The Food Allergen Labeling and Consumer Protection Act (FALCPA), which took effect January 1, 2006, mandates that foods containing milk, eggs, fish (such as bass, flounder, cod), crustacean shellfish (such as crab, lobster, shrimp), tree nuts (such as almonds, walnuts, pecans), peanuts, wheat, and soybeans must declare the food in plain language on the ingredient list or via the word "contains" followed by the name of the major food allergen (milk, wheat, or eggs for example); or a parenthetical statement in the list of ingredients, e.g., "albumin (egg)".

Such ingredients must be listed even if they are present in colors, flavors, or spice blends. Additionally, manufacturers must list the specific nut or seafood that is used (such as almond, walnut, cashew; or tuna, salmon, shrimp, or lobster). While more than 160 foods have been identified as causing allergic reactions, the eight foods listed above cause 90 percent of food-allergic reactions, according to The Food Allergy & Anaphylaxis Network (www.foodallergy.org). The law only applies to products labeled on or after January 1, 2006; depending on a product's shelf life, it may take up to a year before all products list ingredients in simple language.

The FDA estimates that 2 percent of adults and about 5 percent of infants and young children in the US suffer from food allergies. Approximately 30,000 consumers require emergency room treatment and 150 Americans die each year because of allergic reactions to food (http://www.cfsan.fda.gov/~dms/wh-alrgy.html).

It will be interesting to see whether foods such as orange juice, which use soy protein combined with pectin to prevent settling, will announce "Contains Soy" on the label.

About the Author

Bill Sanda, BS, MBA, served as Executive Director and Director of Public Affairs for the Weston A. Price Foundation. Bill was a partner and co-owner of The McAdam Group, a lobbying company specializing in elements of education policy, and was a consultant to Primezyme, Inc., a nutrition and healing clinic. He has extensive experience in Washington D.C. politics and government, having served as a professional staff member in the US Senate.

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