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.
85 comments
It’s disappointing that the people aren’t affected in anyway by legislation are making the most noise about it. Additionally, they continue to misplace their political fire. Congress is the most appropriate place to address these concerns. In the mean time VA growers need this legislation to remain competitive with the other 42 states that didn’t seem to have a problem assisting their farmers and protecting food safety. We thank all the members of the House of Delegates and the Senate that have seen through rhetoric and made a common sense vote.
remind us not to eat what you bring to the next pot luck. I prefer not to have corporations hide their trash, sick animals, and eboloa fungus
The Real Story Behind SB1195
https://bearingdrift.com/2017/02/03/obenshain-real-story-behind-sb-1195/
“The people never give up their liberties but under some delusion”
– Edmund Burke
Government inspections are a form of a search, and thus are constrained by the Fourth Amendment’s prohibition against unreasonable searches and seizures. Courts have held that the FDA is not required to obtain a search warrant to inspect a facility under Section 704 of the FD&C Act as long as the inspection is conducted reasonably as to time, place, and method.
This debate needs to be focused toward your federal representatives. SB 1195 simply asks the Virginia Department of Agriculture to implement the Federal Produce Safety Rule until it changes or repealed by the federal government. There is no reason for VA farmers to wait for federal inspectors to sell fresh fruits and vegetables across state lines. Additionally, there are thousands of farmers raising produce in the Commonwealth. Less than 400 would actually be affected by the rule and this legislation. The rule has many exemptions including any one raising less than $25,000 of produce is exempt. There are several other ways that operations with less than $250,000 of production are exempt.
SB 1195 makes sure that great Virginia Grown produce is safe and available. We thank Senator Stuart for making VA produce competitive. Forty Two other states help their producers provide safe and affordable fruits and vegatables.
Well said and thank you Wilmer. Please help stop this negative misinformation campaign. The majority of people complaining will not be affected as their farms and commodities would be exempt from the rule.
Thank you for responding with clarity Wilmer.. you are a fine man and you have done so much good with VFB. I’m afraid that so many folks who have posted here have dug in their heels so deep that after realizing they did not really understand why this is supported by farmers, their egos will prevent them from stepping back and reevaluating their first opinion. Its hard to look at something, realize there is more to the story and changing ones mind..
There isn’t an appeal process in SB1195. Also, there is a $1,000.00 fine per violation, per day.
Virginia DOES NOT have to assist the federal government in implementing its laws and regulations per the Anti-Commandeering Doctrine. The idea that Virginia has to implement the regulations in SB1195 is untrue.
So, lets keep the unaccountable bureaucrats at FDA?
Turbocohen,
You haven’t responded to my point – Trump said, and Congress seems to support, getting rid of regulations that hinder business, and a farm is a business. So instead of trying to push this workaround, why aren’t our representatives working with the newly elected President to get rid of the federal regulation and make the workaround a non-issue ?
You keep arguing that state is better than the alternative, why not argue for NEITHER ?
Why not take this election victory out for a spin and see what it can do ? They’ve already made a commitment to reduce regulations, why not hand them one to reduce ?
I’ll happily respond to a name. Be bold pilgrim.. Repond with a real screen name.
I guess he or she has you stumped! LOL
REPUBLICANS DELIGHT in violating private property rights! They are advocates for stomping all over the private property rights of good Virginia people who don’t want an UN-natural GAS pipeline across their land!
Sorry, I can’t help it – where’s the right of appeal?
One more interesting tidbit: The original bill said that civil penalties went to the Agricultural Civil Penalty Fund. When the substitute was presented, that was changed to the Stormwater Local Assistance Fund. Why is a supposedly farm produce civil penalty being diverted to a stormwater assistance fund??
WOW.. We Ag folks call them storm water thingys ditches.. One of the few things we all rely on is stormwater management. Flooding is a big issue, ask any farmer.
Okkkk…….but that has little to do with more government folks bothering farmers.
This bill has to do with sending the responsibility and OUR dollars back to Va. Less federal Bureaucracy is welcome, VA farmers for the most part have a real good relationship with (state) VDACS and Farm Bureau.
Money, money,money! Who’s money? Farmers, landowners, Virginian’s not government. I’m talking freedoms and rights and your talking money. Your exchanging one gov agency for another. We need less government, regulations and laws! How many government agency regulators went on Thomas Jefferson’s, Washington’s, and Madison’s farm? I can tell you for certainty, NON.
Nobody wants government intrusion. Pick your poison, federal or state?
Non and our constitution and bill of rights guarantees it.
Do nothing and we keep the FDA. Thanks. Not.
exactly right – federal on your farm for 3 weeks or state there for 1 day – your choice
VICFA made the proposal to change it to the Stormwater Assistance Fund
That is 100% false. VICFA had no say in the amendments.
SB1195 has been referred to the House Committee on Agriculture, Chesapeake, and Natural Resources, where it will most certainly be assigned to the sub-committee on Agriculture. Members are: Knight (Chairman), Orrock, Poindexter, Webert, Bloxom, James, Keam. Write to that committee and urge them to kill the bill.
Exactly right!
May I ask an honest question, how many acres you have under crop, or do you farm?
I have livestock. I realize this bill is geared towards produce, but I sure as heck don’t want some government bureaucrat thinking he can stroll through my barns anytime he thinks he’s entitled, nor do I want said bureaucrat seizing my property at his own discretion and without any due process. I’m guessing there are plenty of produce farmers who feel the same way. Now, what is your point?
We have government beauraucrats marching on our land as it is, Would you prefer Federal or state? As with many things I feels its best to keep Washington out of it and its best if left to the states.. Wouldnt you agree?
Do you want to battle both the wolf and the weasel? Or would you rather just battle the wolf? This bill will do nothing to pre-empt the Feds from their incursions on state’s rights. They already ignore the 4th and 10th amendments. They certainly won’t care about a state law which poses no obligation on their behalf.
This bill deals with the 4th. If states take on this role, its easier for Trump of spring FDA and that must happen while we have the initiatives on both sides.. Geez, Im shocked that so few see the opportunity this presents..
“Would you prefer Federal or state?”
Isn’t NEITHER an option ? We do have the state legislature, Congress, and now the Presidency, it seems like we could do something about that, right ?
This is one step away from federal. You will never see zero ag inspections, just wont happen..
Where does this bill give us that option? You appear to be the only person who believes the state will replace the feds. Nope. It will be another added bureaucracy to hassle farmers.
I’m guessing a Richmond politician fed you this lie to justify his voting for the bill.
Supreme Court decision 197? Open Field Doctrine . This is at a minimum un constitutional and these snowflakes pushing this bill might want to check this decision before they get their summons.
“The open field doctrine is a term used in criminal law to stand for the concept that anything plainly visible to the eye, even if it’s on private property, is subject to a search since it’s not hidden. Under this doctrine, consent to inspect the location is not required in order for a law enforcement officer to observe and report on things in plain view and include observations made. An open field is not an area protected under the Fourth Amendment, and there is no expectation of a right of privacy for an open field.”
I don’t think this bill requires that produce be in the open, but I’m just a layman. This is a civil penalty, not criminal. Any lawyers out there?
If the produce is in storage buildings there is an expectation of privacy or no trespassing signs surrounding an open field there is an expectation of privacy where as a search warrant is required for either civil or criminal. Both results in trial and if found guilty punishment. That is what I learned in my search and seizure classes.
Why did DeSteph and Cosgrove vote for this crap? The caliber and diversity of those voting against it tells me the rest should have, too.
Its an election year and they are smart enough to see how dysfunctional our circular grassroots firing squad is over this bill..
Looks to me like a last ditch effort by our liberal Governor to grab power before Trump makes the rounds in DC and eliminates a LOT of the regulations that are killing private property and business ownership all over this country. Once the state has established its own law, then the leftists are more than happy to honor the Constitution and “allow” for states’ rights. It will then be the state that effectively confiscates your property via its own regulations.
The farmers have been successfully brainwashed, as liberals are so good at doing when they create a problem then create the solution when then has created a real problem. They really believe that Virginia didn’t just want to set up another bureaucracy with good paying jobs for that $3 million, but that government really cares about them and the regulations that are killing their businesses.
5 new employees and resources.. Interesting to see all these unaccountable misinformed fictitious names spew forth low information BS.
Why do we need even 5 when the feds are already doing this?
If the unelected feds send the $ back to VA where our own electeds have oversight, our own 5 will do this and they will be held accountable by us and not some Washington bureaucrat. This is a no brainer, I’m miffed as to why so many got this wrong yet the farmers I speak with support it.. Farmer haters gonna hate or is there a deliberate misinformation campaign?
Thanks, Siobhan!
Did they take an oath to our Constitution or to government ? This is an affront to the 4th Amendment. We need to resist enemies to our Constitution, both foreign and domestic. To many government cronies live in Virginia, now. They need to get a real job and quit picking on farmers.
Once again I thank my Senator Dick Black for voting the right way on this awful bill.
I called Peter Ferrell office and left a message with Taylor to vote no on this bill!
SB1195 is a compromise.. Wish we didn’t need it, yes I said need..
I own a farm, in fact 3 farm parcels.. We currently have the Feds own FDA to contend with. As I see it, SB1195 pushes the feds off and lets the state take replace them. Hate it or love it, I would rather get the Feds out of my hair..
I am trying to understand this bill and its effects. I’m a little confused. I thought this bill would end up having both FDA and state inspectors after farms? You think this bill somehow removes FDA inspections? Please share more about how you think this bill will effect farms.
Yes, it replaces FDA with Virginia state employees who are accountable here in the commonwealth and more importantly our legislators can wield influence.. and we can hold our own accountable. We have very little influence over Washington bureaucrats.. We have more influence over our bureaucrats.. And to be fair, VDACS and Farm Bureau work with us (farmers) and for the most part we get along MUCH better than any FDA agency that answers to some appointed (unelected) official in Iowa or Ohio.
Turbo, I greatly respect your position, but there is nothing to stop the feds AND the state from bring involved. If I were in the GA this year, I would be reluctant to do anything with federal regs. In your opinion, is the current federal program so onerous that it must be addressed right now?
When the irons in the fire and opportunity strikes, brand your cattle. We have wind blowing across Washington to send regulatory power back to the states. Its a parade, why wait for the parade to pass when its harder to get things like this done?
Those hoping for repeal or reform of FSMA by Trump are living a pipe dream: http://www.foodsafetynews.com/2017/02/food-safety-rules-likely-to-dodge-the-regulatory-reform-bullet/#.WJtAXW8rKUk
There are 42 states currently seeking to do the produce work for FDA.
Hmm. Hey I have an idea. Since Republicans are in control of the state legislature, Congress, and the Presidency, how about they vote the way they talk and stop the feds and state BOTH from entering land w/o a warrant. I know, crazy, right ?
How can the state decide to push the feds off? Why would the feds agree to that? Those folks want to keep their jobs. It sounds more like two groups bothering farmers. Read Snowflakes excellent idea below. Let’s get rid of both of them!
Right ? I mean how about Virginia legislators get on the phone with the Speaker of the House and/or Trump and tell them about the problem and see what they can do about it instead of considering this stupid workaround. Or maybe talk to all those Republican Congress people we have from this state, you know, who are in the House and can fix it.
Speak with the legislators and scratch beneath the surface. A lot of egg gonna wind up on some faces over SB1195 and that is not something I want to see.. Its a bipartisan fustercluck once folks dig in and weight the pros and cons..
Turbo, if giving up your rights and freedoms are thing you think you need to do, your truly delusional! What drugs are you taking?
Bless your heart, it appears you have not taken the time to speak with the authors of this bill and to study the detail.. If you have, my bad. Have you spoken with the GOP supporters who are not up for re election this year, many of whom would have supported the provisions that reduce or eliminate FDA interference?
use it or lose it?— does it do anything for the people’s welfare or just insert another governmental agency into a already overcrowded government?
is it just taxpayers money being offered to be spent on another do nothing program?
will it save people or just spend tax money?
isn’t there already such laws on the books?
does this bill make senator Stuart feel better?, more important?
Great article, Susan!
Hanger was no surprise, but Obenshain???
I don’t believe Senator Obenshain is who you think he is. :-/
He does seem to have changed.
No he is still the same senator who stands with Virginia Farmers who do not want Washington sending some FDA beauraucrat to disrupt them. Farmers in Va get along well with VEDP and Farm Bureau. Jeanine, I’m miffed as to why so many of “us” seem to be completely off the rails on this one..
You are the ONLY person I’ve heard from who doesn’t believe this bill is bad because it sets up another government group to hassle farmers. You seem to be the only one who believes the state will replace the feds in these drive by ‘inspections’. How will that happen? Did the feds agree to back away? Are they going to fire all the federal employees who do this now and let state employees take over? Why would they do that?
Totally this.
And since when did a farmers’ property become some kind of communal project with government as equal partners ? Republicans and Libertarians are supposed to be fighting against this crap, not voting for it. Personal property, it’s a thing.
It replaces Feds with State..
And thank you newly elected 22nd District Senator Mark Peake for voting against this bill.
Is this bill a result of the successful actions by Mrs. Martha Boneta and other liberty minded Citizens – and therefore a push back? Who is behind it?
Ben, republican Richard Stuart pushed this bill! Time to empty the swamp in the VA senate and house! Get going teaparty!
You all are a crockpot full of bullshit nuts if you truly think Stuart and Obenshain did not think this through carefully. The pussyhats who demand their legislator vote NO have to keep in mind than they have an election year to contend with. Up this year? Then NO. Got some time to bring our circular firing squad some bandages? Vote YES. This is what you are forcing? What the flaming meteor of death are you people demanding? Buy a farm and sign the front of the checks for a while and read this fucking bill. It’s a shit sandwich for Stuart to carry either way but if you understand the really harsh reality of the FDA and the details in what passed, and you had the balls/ovaries or whatever, you would understand why YES was the better compromise.
We will all see more inspections guaranteed, but Most farmers are Much happier working with VDEP and Farm Bureau than the often hostile federal FDA.
It’s so much easier to oppose and damage our Republicans than actually take the fight to the democrat party opponent.
Besides, the ability to take down a Republican really makes them grovel at our TP potlucks … let’s have a ‘convention’ about it.
Funny, all the Democrats voted YES. Even Wagner, who loves big government voted against this. Why did Carrico, Chafin, Cosgrove, DeSteph, Hanger, Obenshain, Ruff, and Stuart vote with the Democrats?
Reflexively sooo many voted differently than so many expected.. Nobody wants to dig through the poop and find the cause.. This is one of those bills that everyone is an expert on but cant separate the reflex from the immune response..
If you think that having security is giving my fourth amendment right to the government whether it be state or federal you’re ready out your mind. That’s like allowing a person to barge into your home and seizures anything they want. Obenshain and Stuart are the bullshit Republicans that the people don’t need. I don’t plan on giving up any of my freedoms for your and my security. One of our great forefathers said this for all to remember.
What is stopping FDA raids now? Again, its a shit sandwich, start at the tasty side or hold your nose and gobble it down whole?
You can always tell when someone is losing an argument. They start the name calling.
I furious we have so many smart grassroots folks who got this important bill wrong!! Its like the Tea Party is demanding more debt and taxes. WTF. Voting No is sticking it to farmers, employees and in the end costs you the buyer.
would love to hear you testify during the house meetings on this bill so it does not die – need to avoid FDA any way possible
The conservative grassroots have made up their minds and they demand the the federal government keep their noses in our tent. Its really sad so many have gotten this bill all haywire and got it so very wrong.. Egos will stop many from seeing why this is so important for Va.. We want the FDA off our backs and don’t want their bureaucrats delaying normal Ag market activity.. Most other states have already dealt with this..
I’ve already sent a long email to my delegate explaining why she must vote no.
Perfect!