Obenshain: The Real Story Behind SB 1195

by Senator Mark Obenshain

Over the past three weeks, my staff and I have been in discussion regarding Senate Bill 1195, sponsored by Senator Richard Stuart (R-Stafford).  This bill raised a number of concerns, and it was clear that we needed more information on its background and what this bill sought to accomplish.  People might forget, but I come from a farm family, and we still have a family farm in southwest Virginia.  Now representing the number one agricultural district in Virginia, I take to heart any threat to farmers or the Ag industry.

Here’s the history.  Several years ago, in response to e coli outbreaks in spinach and the salmonella outbreak in peanut butter, Congress passed the Food Safety Modernization Act.  Carving out hundreds of thousands of exemptions, this bill required federal investigators – the FDA – to inspect and oversee very large produce and fruit farms across the country.  In January of 2016, the FDA released final rule implementing the law, the regulations and exemptions.  Make no mistake, I believe that these Obama regulations are a typical bureaucratic overreaction by the federal government and should be repealed by the Trump administration.

The FDA regulations give the states a choice with respect to enforcement.  Virginia (as with other states) could opt-in and do inspections ourself, but if we don’t, the FDA inspectors will come into Virginia and do it themselves.  If Virginia does the inspections, they will be done by the Virginia Department of Agriculture (VDACS).  I don’t think we should have either doing these inspections, but the small number of farms that are subject to the regulations (less than 1% of Virginia’s farms) actually asked for legislation designating VDACS in order to the keep the FDA off of Virginia farms.  They, too, don’t want anyone doing it, but because the Obama administration has made them pick their poison, they picked VDACS.  Farms like the Saunders Brothers, who’ve been operating their family owned farm and orchard for 102 years near Wintergreen, who told us: “We would rather have [a] state regulatory agency (VDACS) have this authority versus [the] FDA.”

As a result, the Ag industry asked for SB 1195.  As introduced, however, the bill went way too far.  It had civil and even criminal penalties.  I did not and would not support that.  It also had no sunset provisions.  I would not support that either.

It’s important to note that since the FSMA passed, more than 40 other states have chosen to conduct their own inspections instead of defaulting to FDA inspections.  Most of those giving way to federal regulation are states with very little produce and fruit production, like Montana and North Dakota.

It is clear that nobody in Virginia’s farm community is happy that the federal government is forcing Virginia to make this choice and they are all hoping that the Trump Administration will promptly repeal the regs.  But even more concerning is the possibility and reality of submitting ourselves solely to FDA regulation.  Late last year, the federal regulators notified one western Virginia farm operation that it would be inspected, and that it would be prohibited from selling its product until the FDA arrived at the farm for its scheduled inspection two weeks later.  As you might have guessed, two weeks have now turned into three months, and they have yet to see anyone from the FDA, and they are still unable to sell their product.

This is an issue facing Virginia now, and while SB 1195 only applies to a small number of farms, it is still an immediate threat by the federal government.

SB 1195 as it was originally drafted wasn’t perfect.  As many folks shared their opinion, it became clear that bill needed amending.  Martha Boneta reached out to VDACS and agricultural groups, and suggested major amendments that were added to the bill in committee:

1) Sunset Clause.  If the federal regulations are repealed, defunded or ruled unconstitutional, the Virginia bill goes away with it.

2) Exemptions.  SB 1195 has been stripped down so that it applies to only one percent of Virginia’s farms – which is still too many.

Even with these amendments, I still had concerns.  The Obama scheme seems to call for both civil fines, as well as criminal charges when violations were found.  Any fine levied would be collected and retained by VDACS – potentially creating an incentive for the agency to aggressively pursue violators.  Neither sat well with me, and in committee I requested two additional amendments:

1) I offered an amendment stripping out any possibility of a criminal prosecution under the law.  It is a gross overreach to threaten farmers with jail time.

2) While there are some great folks at VDACS, we shouldn’t entertain the risk of encouraging them to find violations to supplement their coffers.  To avoid any threat of impropriety, I offered an amendment that would prevent VDACS from retaining any civil fines.  Instead, any fines would be redirected to help fund farmers’ efforts to implement best management practices.

There have been some concerns about unannounced inspections.  Unannounced inspections are common – this is similar to how a surprise health inspection at a restaurant is allowed into the kitchen, or OSHA comes unannounced to inspect a factory.  I do recognize, however, there are certainly many things to dislike about this Obama scheme being forced on the states, and hopefully the Trump administration repeals the FSMA at the earliest opportunity.

In short, we passed a bill that attempts to protect all Virginia farmers from overaggressive regulators – state or federal – and from the issuance of cease-and-desist orders from the FDA.  We ensured that the second the federal mandate goes away, the Virginia program expires as well.  We removed the threat of jail time, and we made sure VDACS wouldn’t have the incentive to find or invent fines to give themselves some more money.  Most importantly, we worked to protect Virginia farmers from the long arm and heavy hand of the federal government.

Senator Mark Obenshain is a Republican representing the Shenandoah Valley’s 26th Senate District.