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Angie Drobnic Holan
By Angie Drobnic Holan December 1, 2010

Food safety law to regulate your backyard garden? No, it doesn't.

We've received several e-mails from readers asking us about new food safety legislation pending in Congress. They wanted to know if it is true that the bill would regulate backyard gardening.

They sent us several claims promoted by various bloggers. Here's how a website called NaturalNews put it

"Senate Bill 510, the Food Safety Modernization Act, has been called 'the most dangerous bill in the history of the United States of America.' It would grant the U.S. government new authority over the public's right to grow, trade and transport any foods. This would give Big Brother the power to regulate the tomato plants in your backyard. ... This tyrannical law puts all food production (yes, even food produced in your own garden) under the authority of the Department of Homeland Security. Yep -- the very same people running the TSA and its naked body scanner / passenger groping programs."

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This kind of statement takes a real concern about the bill -- that it might impose excessive regulation on small farmers -- and blows it up into a fabrication.

First, a bit about the legislation: Congress decided to act after several notable cases of people being sickened by contaminated foods, such as eggs that were subject to a major recall earlier this year. One out of four Americans are sickened by tainted food each year and 5,000 die, according to the National Center for Infectious Diseases. The bill gives the Food and Drug Administration -- not the Department of Homeland Security -- expanded powers to inspect facilities and trace food-borne illness. (The Department of Homeland Security is mentioned in the bill in respect to regulating food imported from overseas and in preventing intentional poisoning of the food supply.) It also allows the FDA to impose mandatory recalls after illness outbreaks, instead of asking companies to comply voluntarily.

Consumer advocates said the bill was a common-sense step forward. Others expressed concern that the law was too broad: it asks the Secretary for Health and Human Services, which oversees the FDA, to develop specific regulations about how the increased inspections would work.

Peter Van Doren of the Cato Institute reviewed a similar bill passed by the House of Representatives last year, and said he was concerned that the language in the House bill was overly broad. "The question of how much or little is encompassed by this language seems open to differing interpretations and would be the subject of much jockeying when the actual regulations implementing the law were written," he said.

The Senate took up the issue more recently, and, to allay concerns about small growers, Sen. Jon Tester, D-Mont., offered an amendment exempting most local food providers and small farmers from new federal regulations as long as the growers complied with local rules and their produce was not connected to active outbreaks of illness.

The Senate accepted the amendment and approved the overall bill 73 to 25 on Tuesday. The House must now approve it, either outright or through conference committee, and the President must sign it before it becomes law.

So will Big Brother be trailing around behind you in his Wellingtons next spring as you set out your seedlings?

We reviewed the Senate version of the bill carefully and read ongoing news coverage of the food safety law. Nowhere could we find mention of backyard gardens being included. In fact, the Senate version, even prior to Tester's amendment, said regulations must be developed that prioritize food facilities that pose the highest risk to public safety. That would imply that not all facilities would receive the same level of scrutiny.

Additionally, the nonpartisan Congressional Budget Office analysis of the bill makes no mention of widespread inspections in its cost estimates. "Based on the inspection schedule specified, CBO estimates that this bill would require about 50,000 domestic and foreign food facilities to be inspected in 2015," said a CBO report. Meanwhile, the National Gardening Association estimates that 36 million households participated in food gardening in 2008.

Finally, we checked in with a few groups that followed the legislation's development closely. We interviewed Scott Openshaw, director of communications for the Grocery Manufacturers Association, which represents major food companies and tracked the legislation closely. He said the pending legislation will not apply to home gardeners.

"Backyard gardens will NOT be affected in any, way, shape or form by the food safety bill. Zero, zilch, zip, nada," Openshaw told us via e-mail.

Another person who followed the bill closely was David Plunkett, a senior staff attorney for food safety at the Center for Science in the Public Interest; he too said that backyard gardens were not part of the bill. Plunkett pointed us to a line in Section 105 the Senate bill that said the rules "shall not apply to produce that is produced by an individual for personal consumption."

In rating this statement, we see no evidence to support the claim that backyard gardens would be regulated under the food safety bill. There might be legitimate concerns about small growers, but even those have been addressed in the Senate version of the bill. At any rate, concerns about small growers are quite different then the claim that backyard gardens will be regulated. We find no evidence to support the claim and rate it Pants on Fire.

Our Sources

Thomas, the FDA Food Safety Modernization Act, accessed Nov. 30, 2010

Congressional Budget Office, Cost estimates for S 510, accessed Nov. 30, 2010

The National Center for Infectious Diseases, Food-Related Diseases, accessed Dec. 1, 2010

Sen. Jon Tester, Senate overwhelmingly passes Food Safety Bill with Tester’s amendment, Nov. 30, 2010

McClatchy Newspapers, House vote expected this week on food-safety bill, July 27, 2009

Billings Gazette, Food safety bill vote delayed, Nov. 18, 2010

USA Today, Foodmakers backing $1.4 billion food-safety bill, Nov. 29, 2010

Grist, Risk, bacteria, and the tragedy of food-safety reform, Nov. 29, 2010

Michael Pollan and Eric Schlosser, A stale food fight (New York Times op-ed), Nov. 28, 2010

Consumers Union, letter to Senate in support of the food safety bill, Nov. 29, 2010

Consumers Union, food safety releases, various dates

National Gardening Association, Garden Market Research

Center for Science in the Public Interest, Historic Food Safety Bill Clears Senate, Nov. 30, 2010

E-mail interview with Scott Openshaw, director of communications for the Grocery Manufacturers Association

E-mail interview with David Plunkett,  senior staff attorney for food safety at the Center for Science in the Public Interest

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Food safety law to regulate your backyard garden? No, it doesn't.

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