Web Note: The OCA does not support the passage of this Bill (HR 875). See http://capwiz.com/grassrootsnetroots/issues/alert/?alertid=12878056
To join in an online discussion on this bill: http://organicconsumers.org/forum/index.php?showtopic=2564
We’re hearing more and more news out of Washington, D.C. that there is an effort underway to divide the FDA into two separate agencies – one for food and one for drugs. Evidence for this move lies in House Bill 875 , http://www.govtrack.us/congress/billtext.xpd?bill=h111-875, which if passed will establish a new Food Safety Administration (FSA), and which will turn the existing FDA into the Federal Drug Administration. Pros and cons are circulating about this move, and we’ll be reporting on all of it in the coming weeks.
We hasten to remind you, as we suggested last week, that the status of dietary supplements under H. 875 remains in grave doubt. That is, will supplements be regulated as food under the new FSA, or as drugs under the coming FDA? This is only one of many questions that have to be answered before this legislation should get anywhere near a vote.
In the meantime, here’s a fundamental issue to consider as we brace for the possible creation of a new federal agency:
1946 was a watershed year for the U.S. government, and the way it’s been run for the past 63 years. That was the year that the U.S. Congress passed the Administrative Procedures Act (APA). The APA was passed in the aftermath of the Depression and WWII to consolidate and standardize the expansion of government power as exercised through federal agencies .
In short, the APA is an extensive, complex and often confusing set of federal statutes that govern how administrative agencies operate. Under the APA, agencies possess powers similar to those possessed by all three branches of government rolled into one. Agencies have the power to legislate through rulemaking; the power to adjudicate through quasi-judicial courts; and the power to prosecute and enforce, like the executive branch.
The APA is like the operating program, if you will, that dictates the relationship between the American people on the one hand and administrative agencies on the other hand, including these agencies among others:
The Treasury Department The Federal Reserve The Federal Home Loan Bank Board The Securities and Exchange Commission The Department of Agriculture The Federal Trade Commission The Food and Drug Administration
Now, here are a few historical anecdotes about administrative law and the APA.
The accumulation of power within these agencies via the APA was largely a response to the crises of the Depression and WWII. President Franklin Roosevelt – himself an architect of many administrative entities – is said to have worried that the establishment of agencies would create “a fourth branch of government for which there is no sanction in the U.S. Constitution,” Indeed, a 1936 government report about administrative agencies described them as a “headless” branch of government. By many accounts, the single most-cited U.S Supreme Court case is Chevron v. Nat’l Resources Defense Council, in which the 1984 Court held that decisions of administrative agencies are entitled to substantial judicial deference. In other words, there’s not much legal leverage with which to hold these administrative agencies accountable – and this legal mantra from the highest court in the land is being embedded in our culture more often than any other.
As we consider these points, let’s do so mindful of the prospects for a new agency that will control our food, the future of dietary supplements and much of our health care at large. Let’s also be mindful of the performance of the existing agencies that appear at the top of that list above, especially what that performance has wrought over the past several months. Consider whether a new agency under the old system of accountability is really what we need, as opposed to a new system of accountability altogether.
And one more thing – remember George Orwell’s book 1984, and the Ministry of Peace (that perpetuated war), the Ministry of Plenty (that ration food), the Ministry of Truth (to control information) and the Ministry of Love (where enemies of the State were interrogated and punished)? Those Ministries were administrative agencies.
Of course, that was just fiction.