Letter By: Randy Cook

Nov. 8, 2010

Honorable Senators Stabenow and Levin:

The interest of this message concerns S.510, “FDA Food Safety Modernization Act.” Mr. Levin, I note your affirmative vote for cloture although I am ignorant of your reasons for limiting debate. Perhaps your vote was to simply expedite disposition of this bill. If so, my prayer is that each of you meet your obligation to fully investigate, on the record, the intention of this legislation and its potential impact on the primary producers of the wealth of this nation.

It appears that the intent of this bill is to require a federal license to produce, harvest, process, sort, pack, manufacture, hold or store anything the Secretary of Health and Human Services (a.k.a. the President of the United States) determines to be “food.” It also appears that the regulatory scope of this bill vastly exceeds the power delegated to the federal government by the Constitution. 

Please note:  as stated in Art. I, § 8, cl. 18, “Congress shall have power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.” Regulatory jurisdiction, statutorily delegated to any agency, cannot exceed the jurisdiction of the legislative authority as constitutionally specified.

Regulatory powers or authorities are exercised according to the rules or orders issued by federal agencies according to jurisdiction delegated to that agency through authorizing legislation. 5 U.S.C. § 558(b), “A sanction may jurisdictional presumptionnot be imposed or a substantive rule or order issued except within jurisdiction delegated to the agency and as authorized by law.”

The Federal Food, Drug and Cosmetic Act (FFDCA) provides administrative authority for prohibiting “[t]he introduction or delivery for introduction into interstate commerce of any food, drug, device, or cosmetic that is adulterated or misbranded.” 21 U.S.C. § 331(a). 

The Public Health Services Act (PHSA) provides administrative authority to “prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession.” 42 U.S.C. § 264(a).

Both of these statutes (FFDCA and PHSA) delegated authority specifying the scope of regulatory action as concerning the relations between and among the States, not within any State unless a federal enclave exists such as a “port of entry” over which federal jurisdiction would fall (Art. I, § 8, cl. 17). For example, 21 C.F.R., § 1.83, provides as follows:  “The term ‘district director’ means the director of the district of the Food and Drug Administration having jurisdiction over the port of entry through which an article is imported or offered for import.” [Emphasis added.]

From 1976 until 1997 the FFDCA jurisdictional presumption of a connection with interstate commerce (21 U.S.C. § 379a) applied to “a device,” not “a device, food, drug, or cosmetic.” The 1997 amending language could not have expanded the fundamental delegated legislative jurisdictional authority. It could only have expanded the items to which such regulations may apply, not the situs for regulatory application. The jurisdictional presumption of § 379a is thus rebutted and the burden rests upon the regulating agency to prove intent to engage in interstate commerce in order to apply any regulatory sanction within a State.

The PHSA statement authorizing “necessary” agency created rules and regulations for protection against “communicable diseases” moving “from one state…into any other state” explicitly recognizes the existence of governing bodies called “States.” It also implies geographical areas within which those States have their own authority and sphere of action. Otherwise there would be no “from one…into another” relationship.

If it be claimed by a federal entity that constitutionally harmonious acts taken pursuant to the federally delegated power to regulate commerce among the States can, with impunity, operate within rather than among those States, then by that claim those States are made internally incompetent and obsolete on that point of authority, negating their existence by usurpation to the federal regime, contrary to the 10th Amendment guarantee.

This would shred the historical construction of the federal level, negating the initial competency required for establishing federal power. The created would become greater than its creator, an impossibility according to God’s lessons. Either the States are competent agents of their own populations with their own original and exclusive jurisdictions while the federal level may regulate (make regular) the commercial relations among them or the States are superfluous and redundant hurdles to federal hegemony. Asserting a “middle ground” on this point would only illuminate the wellspring of the truths written into our Declaration of Independence, the genesis of our own revolution. 

We, human beings, each have inalienable rights to work and travel. Corporate entities, being creatures of law and government, have only those rights granted by law and government. If you take the time to survey the facts of every food recall that has been issued, you will find a corporate entity in the supply chain. Regulation of natural persons is beyond federal reach unless those natural persons are employed by or serve within a federal enclave. No rational argument can justify an alternate conclusion. 

This bill does not encourage our own domestic producers to positively respond to the flood of imported consumptive goods through proper payment to ourselves for that necessary domestic production. It seeks to place our primary producers into an unworkable, unsafe scheme designed to reduce liberty and increase regimentation under a federal regime without basic constitutional authority. The original source of national wealth is in our labor, as applied to our God-given complement of natural resources. Our current dire economic condition is the result of six decades of underpayment to those primary laborers for the production which they have already provided. As pointed out by former Federal Reserve Board Chairman Marriner S. Eccles, “Labor, after all, is our only source of wealth.” [Testimony before the Senate Finance Committee, Feb. 24, 1933.]

 Mathematics is the mother of safety. Decentralized, widely distributed independent producers are an inherently safer source of food than centralized producers, processors and distributors. Concentrated production, processing and distribution, with an increasing dependence on imports (the least safe alternative) is a natural outworking of bad agricultural policies over the last 60 years. That there is a workable alternative, proven so by our own economic record, makes our current situation excruciatingly intolerable. Persistence in this sort of bad legislation will hasten the demise of our nation, something neither I nor you wish to experience any further. 

“Familiarize yourselves with the chains of bondage, and you are preparing your own limbs to wear them. Accustomed to trample on the rights of those around you, you have lost the genius of your own independence, and become the fit subjects of the first cunning tyrant who rises. And let me tell you, all these things are prepared for you with the logic of history…”

[Abraham Lincoln, speech at Edwardsville, Illinois, Sept. 11, 1858.] 


Randy Cook

President, National Organization for Raw Materials (NORM)

680 E. 5 Point Hwy.

Charlotte, Michigan (48813)