Guest Contributor Susan Lascolette

Yesterday, the Virginia Senate voted 25-15, to pass SB1195, which appears to mimic a federal food contamination regulation and provides Virginia state inspectors with certain authorities already exercised by federal agriculture officials to enter and inspect Virginia farms. Without a warrant. In violation of our Constitution. (You haven’t forgotten Amendment IV in the Bill of Rights, have you?) What are they doing? Currently, the FDA, via regulation 21 C.F.R. Part 112, has the authority to inspect a long list of farm produce for contamination, including mixed fruits. Not all farms are covered; produce farms that have revenue of less than $25,000 per year are exempt, for example. This bill also gives the Commonwealth the same authority. The patron of SB1195, Senator Richard Stuart (R-Stafford), said on the floor of the Senate Wednesday that no one else on his Agriculture and Natural Resources Committee wanted to carry the bill so, as Chairmain of that committee, “he had to do it.” He said that “no one wants to carry a bill like this," and that it was time for Virginia had to come into compliance with federal law. He said farmers were asking him to help put the state in charge of inspections instead of federal agents. No one wants bad food – we have all heard of contaminated strawberries, lettuce and other produce. Further, any rational person would likely prefer a state inspector to a federal inspector. So, what’s the fuss? * If this bill also passes in the House and the Governor signs it, both federal agents and state agents will have “free access at all reasonable hours” to inspect certain produce farms. Free access to anywhere they think “bad” produce is being hidden? Who determines what is “reasonable”? They are “authorized at all times to seize, take possession of, condemn, destroy, or require the destruction of any covered produce on a farm [in violation].” * This bill provides for a civil penalty not to exceed $1,000 per violation. In determining the amount of civil penalty, the “Board shall give due consideration to” history, seriousness and “the demonstrated good faith of the person charged in attempting to achieve compliance with this chapter after being notified of the violation.” Note to our farmer friends – the inspection would not be a good time to express your displeasure with this process – it will cost you money to complain. Whoever heard of such a thing? * This bill says that, “The Commissioner shall have free access at all reasonable hours to any farm for the purpose of (i) inspecting such farm to determine if any provision of this chapter or 21 C.F.R. Part 112 is being violated.” Part 112 applies to a lot more than produce. It also applies to agricultural water, equipment, tools and sanitation, and domesticated and wild animals among other things. * There is no requirement that the states enforce federal law. Established anti-commandeering doctrine says that even where the federal government does exercise authority; it cannot force state or local governments to cooperate in enforcement or implementation. The feds must exercise their authority on their own, unless the state and local governments choose to assist. Simply put, the federal government cannot force state or local governments to act against their will. (From the Tenth Amendment Center) The Feds are willing to provide money for us to do these inspections – I heard an amount of $3 million, but there is one good thing in this bill. It says that if the federal funds expire, the programs ceases. I like that. But the bottom line is that the federal regulation this bill is copying is not Constitutional either as a matter of the Fourth Amendment or as a proper exercise of the Commerce Clause. Virginia would be putting a federal regulation into our code. It grows state government. It adds another unnecessary level of government oversight. It seems to apply to all of Part 112 of the federal regulation, not just to the produce section. It unnecessarily buckles state government to the will of the federal authorities. But most of all, it authorizes warrantless searches and seizures in violation of our Constitution. For the first time in ages, we have reason to hope that federal regulations will be eliminated or eased. Why does this have to be done now? Wouldn’t it be smarter to wait to see what changes are made in federal regulations before we start doing the Fed’s job? We did have a bi-partisan vote against this bill today. Please THANK the Senators who refused to give up our constitutional rights: Black, Chase, Deeds, Dunnavant, McDougle, Newman, Norment, Peake, Petersen, Reeves, Stanley, Sturtevant, Suetterlein, Vogel, and Wagner. If your Senator isn’t on this list, you might want to ask them what they were thinking when they voted to violate the property rights of farmers. Who’s next? How many more ways will the government think of to inspect our private property without a search warrant? You know they just want to protect you. There is no companion House bill – guess they couldn’t find a Delegate to carry it. Now, let’s kill SB1195 in the House.

Guest Contributor Susan Lascolette

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