Remarks
by
About
a decade ago,
Their
worst fears were affirmed. Today, just twelve years later, U.S. honey producers
are facing ruin; some say beyond hope. Millions and millions of barrels of
honey, adulterated with high fructose corn syrups, cane syrups, beet syrups, high
fructose rice syrups, hydrolyzed inulin syrups, beet invert syrups, or maybe some
new-generation sweetener are sold as pure honey or sold as honey blend, a euphuism
for a product that looks like honey, a product that from the label consumers
believe is honey, but is not honey. We
have counterfeiters trading in the currency of honey and no standard of
identity for honey to stop them.
The
need for the standard had long been recognized. The dedicated men and women of
the honey industry trade associations, the National Honey Board, scientists,
attorneys, and others worked over twenty years on the project. The culmination
of that work was the 2001 Revised Codex Standard for Honey (with certain appropriate
deviations) which was submitted by The American Beekeeping Federation; American
Honey Producers Association, National Honey Packers and Dealers Assoc, Sioux
Honey Association, and Western States Honey Packers and Dealers Assoc to the
FDA in March 2006 for review. In August 2006, the FDA’s Center for Food Safety
and Applied Nutrition (CFSAN) replied by letter, essentially saying they would
not address the petition because of “other agency priorities and the limited
availability of resources.” The news was devastating…
Last
August, at lunch with Elmore Herman, president of the Florida Beekeepers
Association, Bill Merritt, chairman of the Florida Honey Bee Technical Council,
and Laurence Cutts, retired Chief Apiarist for Florida, the status of the FDA
petition came up, and Bill remarked that we were never going to get any help
from the feds. I casually suggested, “Why don’t you just bypass the FDA and get
the Codex standard for honey adopted in Florida? “ Since that time, members of
the state association, Elmore Herman, Bill Merritt, Doug McGinnis, Tropical
Blossom Honey Co; Bill Rhodes, Rhodes Honey Farm; Bert Kelley, Kelley’s
Apiaries; Jerry Latner, Dadant & Sons; David Miksa, Miksa Honey Farms; Alan
Hays, state representative from Umatilla, FL, and my ever-pleasing, very accommodating
husband, a thirty year trial attorney and former Chief Litigation Attorney for
Florida Department of Transportation, have spent countless hours framing the
proposal. We would run up against roadblocks in thinking and have to turn
around and start all over again. We argued about whether a state adopted
standard could bring about a positive change or were we wasting our time…we
planned and planned…
On
November 3rd, last year, at the annual business meeting of the
Florida State Beekeepers Association, we presented the proposal, and the
members passed a resolution requesting the Florida Department of Agriculture
and Consumer Services adopt the Revised Codex Standard for Honey(as previously
submitted to the FDA) as the state standard. I am here today with the same
suggestion: stop waiting for the FDA. Get the Codex standard for honey adopted
in your state.
The
State of Florida and any other state can supersede federal law and enact a
standard where no standard exists for the protection of its citizenry, the only
restriction being that it cannot conflict with U.S. law. For instance, a state
could not pass a law in conflict with the 14th Amendment prohibiting
discrimination. States are also empowered to enact a standard which is more
restrictive than federal law. A case in
point is the product, contact cement. In most states, contact cement may be
purchased in consumer-sized containers, and the product may be imported in
barrels for industrial use; however, a warning on the label reads: “this
product contains chemicals known to the state of California to cause cancer,
birth defects, or other reproductive harm.” With the exception of a few
counties in California, contact cement cannot be purchased in any size, and nowhere
in the state is it allowed to be imported in barrels.
Those
who worked on the Florida initiative however recognized and accepted certain
facts: even if the FDA had enacted the Codex standard, they would not and could
not enforce it. Virginia Webb, owner of Mountain Honey Co., Clarkesville, GA
and a director of the ABF, a woman who has spent the past year working
tirelessly for FDA approval and I agree; the FDA’s primary objective is to
protect the foodstuffs of America.
Through
OASIS, FDA’s automated system for handling imported foods, the Federal Food
& Drug Administration is responsible for assuring the safety of twelve million
shipments each year through 5,200 importer agents. The number of shipments is
up fifty percent since 1999. For the
month, November 2007, the FDA issued 1310 Import Refusal Reports. The
overwhelming number of shipments they refused originated from China, India, and
Mexico. Those 1310 products refused were, in order, fish, seafood, fruits,
vegetables, bakery goods, soft drinks and packaged bottles of beverage water.
On
the home front, the FDA monitors over 650 domestic food producers, producing
$417 billion dollars worth of domestic food annually. In the month of December 2007, they issued safety warning alerts
on oysters suspected of norovirus; cheese, salmon, milk suspected of listeria;
lead in Mexican candy; non-sterilized water in ophthalmic solution; mold in beverage
water. They issued immediate recalls on blood supplies where the donor had previously
returned from a malaria-infected region of the world and recalls on blood drawn
from unknown donors. Before I left Florida, Joanne Brown, Deputy Commissioner
of Agriculture, forwarded an FDA Import Alert, dated December 21, 2007 adding
two new Chinese firms exporting honey and blended syrup suspected of being
contaminated with fluoroquinolones to a list created August 2002, when $50,000
worth of chloramphenicol-contaminated honey was seized in Louisiana.
Consider
this question: if the CEO of a Fortune 500 corporation sat down at his desk on
a Monday morning and had to rate the responsibilities of the FDA in order of
importance, what would be first on the list? Contamination or adulteration,
poison food or a product cut with corn syrup? The FDA is acting responsibly in the detection of contaminants; for everything
else, the agency is too burdened…
Our
Florida Department of Agriculture and Consumer Services is likewise tasked with multiple missions. They safeguard
an 87 billion dollar agricultural industry, an industry second only to tourism.
They monitor the fruits and vegetables from
our truck farming for ecoli and salmonella, protect the citrus industry from citrus
greening, protect the cattle, dairy, and
horse industries from outbreaks of Zoonotic disease, equine virus, Asian
influenza, canine influenza, chronic wasting disease in deer, and mad cow disease, They are mandated to protect
consumers from potential health and security risks, unfair and deceptive
business practices, problems ranging from auto repair to telemarketing
complaints. They inspect scales and gas pumps for accuracy. They manage close
to a million acres of public lands and protect both rural and suburban property
from wildfires. They assist in the emergency management operations when
hurricanes and tornadoes threaten our state. And of course their newest
headache is the increasingly life-threatening incidences of the Africanized
Honey Bee as it continues its rapid migration northward…
Most departments of agriculture are primarily regulatory
agencies. Enforcement against a violator selling a deceptive product rarely
reaches the level of the administrative courts due to lack of manpower, cost of
litigation and sufficient evidence to support the action. According to Stacie
Hammock with the laboratories in our department of agriculture, “given the
current state of analytical testing for authenticity of honey, this requires
the adulterant be identified, unless there is a gross departure from the
normal analytical profile of honey. Merely saying the honey is “suspicious” is
not sufficient…” She goes on to state that “limitations to detecting
adulteration are not lack of equipment or resources within the department, but
rather a factor of the natural variability of honey combined with a lack of regulatory
standards of honey.”
Typical enforcement actions against those violators
are warning notices, more warning notices, warnings to cease, possibly a stop
sales order, hardly ever seizure of a product. If a repeated offender ever
reaches the administrative courts, a $5,000 fine or most unlikely, a short
prison sentence, is hardly significant to someone profiting millions each year.
A
state agency, not a citizen, litigates against a violator in an administrative court,
and the penalties are typically set by state statue. Citizens cannot sue someone in a criminal court;
those actions are the responsibility of the state attorney. However, recall the
Goldman family, whose son, Ronald Goldman was murdered in Los Angeles, along
with Nicole Simpson, O.J. Simpson’s former wife. O.J. was charged with first
degree murder but found not guilty in the criminal courts, yet the Goldman
family initiated a wrongful death suit against Simpson in civil courts. The
Goldman family won. The evidence in the civil court did not have to prove
beyond a reasonable doubt that O.J. committed the murder, only that it was more
likely he committed the murder than not. Today, the Goldman family continues to
haunt Simpson, seizing any asset they can as partial payment of the money
damages awarded to them by the court.
So
what are the fruits of our labors if the Revised Codex Standard for Honey is
adopted in Florida? Once the standard is adopted, the Department of Agriculture’s
enforcement is irrelevant; we, in the honey producing community, finally possess
our constitutional right to access to the courts where we can inflict real
pain: we sue anyone adulterating honey
in the civil courts where actual and punitive damages are not held to a
specific amount and where the burden of proof is not as onerous as in an
administrative court. The adoption of the Revised Codex Standard for Honey, when
used as a means to seek civil remedies, is the method by which we bypass
government impediments to the industry and begin to save our industry through
self-enforcement.
Consider
a buyer purchasing a barrel of honey. He tests the honey for adulterants and
determines the barrel contents do not meet the state-adopted Codex Standard. In
a contractual relationship, which may, in your state, be nothing more than a
handshake, the seller of the adulterant has breached the contract; the buyer
contracted to purchase honey which he did not receive; the buyer can sue. If
the buyer had contracts to sell the honey and fails to meet his contractual
obligations, then the elevation of damages against the original seller intensifies.
Furthermore, assume the buyer, in good
faith, and not knowing the barrel was adulterated, sold the product to one of
his consumers who then sold it again. The legal consequences against the
original seller could potentially ruin him.
If
a honey producer finds she has no where to sell her honey for a profit because
one firm is controlling the price, then the plaintiff may entertain a suit for
interference with free enterprise. If it is proven that the defendant is in
violation of anti-trust laws, the entire operation may be shut down. Win or
lose, the threat of potential litigation is a strong deterrent to corporate
action. In a capitalistic society, greed has its own rewards…
One reason neither the FDA nor a state is
anxious to seek an administrative action against someone adulterating honey is
the inconclusiveness of testing results when sampling honey for adulterants. Their
concerns are legitimate; in a civil court, just like the state agency in a
regulatory action, the burden of proof of the adulterant rests with the plaintiff;
yet the testing need only prove the honey is adulterated. The tests are
adequate for proof in a civil court because the plaintiff need not be concerned
with the identity of the adulterant, only that the substance does not meet the Codex
standard for honey. If the defendant introduces any of the more sophisticated
testing procedures to prove the product is honey, given the inconclusiveness of
the test to identify an adulterant, the very tests that cannot convict a
violator in an administrative court becomes the very weapon against the defendant
in a civil action.
A
state-adopted standard of honey is not to be confused with the statement of
identity required on packaged foods. Honey labeling laws exist to stop packers
from deceptive wording on a label. Any definition of honey stated in the law is
relevant only in the context of statement of identity on the labeling.
Regulators are addressing the deceptiveness of the label, not authenticating
the product. If the label, the statement of identity, does not agree with
definition of honey in the labeling law, the violator will be told to correct
the label.
Do
not underestimate the value of honey labeling laws; they are powerful pieces of
legislation and do much to preserve honey as a pure and wholesome product. Sylvia Ezenwa’s column in the January ’08 ABJ
identifies seventeen states that have passed labeling laws, yet do no confuse the definition of honey
in a labeling law with the adoption of the Codex standard for honey. Without the Codex standard for honey, the
standard for the product, the honey, still does not exist…
The
Committee for Promotion of Honey and Health sees honey as the next
nutraceutical, a good ole natural food that delivers health benefits, and
yesterday’s 1st International Scientific Symposium on Honey
and Health is a reaffirmation of the beauty of honey and its curative powers.
Yet while we were inside falling in love all over again with the food from the
bees, the honey in the public domain was being cut with adulterants as bad as
dope on the streets.
Ron
Phipps and Ron Fessenden’s article in the August ‘07 ABJ, “The Crossroad of
the American Honey Industry—a Call for Unity,” suggests there is a message that
can unite the honey industry. And what words will unite us? “Honey can deliver
significant health benefits to an entire generation of Americans.” It’s a
message that sounds and smells and feels as good as baseball, apple pie and the
American flag. Yet talking about the wonders of honey is hypocrisy if the
product Americans are putting on their breakfast table is an evil pretender. I don’t feel honest telling my family, my
neighbors, my customers, the garden club, the fourth grade kids in Ag in the
Classroom that honey is good for them unless I am trying to do something to rid
our beekeeping community of adulterated honey. I am already hearing old
customers and new tell me they wouldn’t buy honey in the stores because it is
probably contaminated “Chinese” honey. We know that what comes from the bees is
pure and wholesome, but consumers are losing confidence in the product, and the
market for honey may already be diminishing.
U.S,
honey producers continue to complain that the FDA is doing nothing to help the
beekeeper, that we pay money into the federal government and continue to be
ignored, yet words without action is nothing more than rhetoric and a waste of
good energy. The complaint that no one is working on the problem is not even an
accurate observation. Phipps reported in the July ‘07ABJ that a report has
been filed by petitioner’s lawyer with the department of commerce about the
history of problems with “packer’s blend,” and a call for action has been issued since there are potential criminal acts of fraud involved in mislabeling to
avoid anti-dumping duties.
Phipps’ has repeatedly stressed the importance
of restoring incentives to U.S. honey producers to produce honey. He has
emphasized that as the cost of traditional sweeteners rise, and become
committed to alternative uses, “we may see major manufacturers in America not
merely using the name honey but actually using quantities of honey which are
more commensurate with the marketing power of the word honey.” Getting the Codex
standard adopted by all states can rescue the honey producers, but until we
have established that standard, nothing will happen.
What
is Florida’s recommended game plan for getting a state adoption? I have brought
copies of the Florida state initiative, I am happy to share. Form a committee
in your state association of members who will devote time to the initiative,
any amount of time, and assign small tasks to each person. Talk about the
proposal to anyone who will listen. Call your local Farm Bureau; in Florida,
the initiative is on their ‘08 legislative agenda and will be discussed at
their national convention next month here in California. Contact your local medical association and
make them aware of the initiative. Educate them about the need for the standard
as it relates to honey and health. In this fight to get the standard, we need
more friends and fewer enemies. The medical association employs powerful
lobbyists; adoption of the Revised Codex Standard for Honey would be a
newsworthy-attractive issue for the legislative agenda they carry to the state
capital.
Find
a state congressman who will support your resolution; he or she can help with
arranging appointments to meet with department commissioners and offer advice
on rulemaking within your state government. If at all possible, do not seek legislative
action for adoption of this proposal. In Hawaii, the market for Manoa Honey is
eroding because of packers blend coming into the state; they went to the state
legislature proposing the passage of honey labeling laws. The house and senate
approved the law, yet in July, Governor Linda Lingle vetoed the bill because of
concerns with violation of the Commerce Clause and the First Amendment. Getting
their department of agriculture to adopt the revised codex standard first may
ease passage of their revised honey labeling law. If honey is protected as an
agricultural product in your state, then adopting the standard as a rule will
be far easier than going to the legislature to enact new law. If apiculture is
not protected as an agricultural product in your state, then seek the adoption
by rule through your consumer services agency; the connection between health
and honey can definitely prompt action.
Do
not reinvent the wheel. The Honey Labeling laws: seventeen states, seventeen
definitions of honey, some one sentence long; some whole paragraphs, no uniform
agreement. The Revised Codex Standard for Honey, as was submitted to the FDA,
is scientifically sound and legally responsible .The standard for honey must be
the same in every state.
Finally,
stay on course and focus first on getting the standard adopted. How we use the
standard to our advantage in the international marketplace, in the civil courts,
comes once the standard is adopted. No standard, no action…
Tammy
Horn, author Bees in America, wrote
that no health reform movements existed in the early days of the twentieth
century. The first law to protect consumers was passed in 1906, and Charles
Dadant is credited with getting the law passed. Without it, unscrupulous
producers were selling their honey adulterated with sugar without fear of legal
recrimination. “Honey adulteration, she writes, occurred often enough that the
market suffered in the States and abroad.” When I read what Dadant had accomplished,
I felt compelled to try and finish what he started one hundred and two years
ago. I am neither war scarred nor battle weary; My friends in Florida can tell
you that I am tenacious, short on patience, and long on perseverance, so
consider me your loyal resource, and feel free to tap into my reserves. I bring
a message of hope where there has been none.
The