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Is FDA Cheating Pet Owners even MORE than we knew?

Yes, they are. A new report provided by Pacific Legal Foundation shows FDA has been cheating the public by allowing agency employees to write law when ONLY an “officer of the United States” has the ability to write law.

Yes, they are. A new report provided by Pacific Legal Foundation shows FDA has been cheating the public by allowing agency employees to write law when ONLY an “officer of the United States” has the ability to write law.

The Pacific Legal Foundation report (Click Here to download the document on the PLF webpage) starts off with this explanation of what FDA has done…

American democracy is built on the separation of powers. No branch of government has absolute power, and each serves as a check on the others. For example, although Supreme Court Justices may invalidate the laws passed by Congress and signed by the President, they can take office only after securing a presidential nomination and Senate confirmation. Only Justices who have gone through this vetting process by the other branches are eligible to issue opinions binding on all Americans.

But suppose that a Supreme Court Justice authorized his law clerks to issue opinions in their own names? What if this went on for 17 years, and no one noticed? The Constitution would not have been ratified if the Framers proposed that employees of the federal judiciary—neither appointed by the President nor confirmed by the Senate—could issue opinions that are legally binding on the public. Such a practice would render the carefully designed system of interbranch checks and balances pointless.

By the same token, the Constitution would not have been ratified if career employees in the executive branch—employees neither appointed by the President nor confirmed by the Senate—could issue final and irreversible regulations that would be legally binding on the public. Yet unlike our law clerk hypothetical, this violation of checks and balances is actually happening: Career employees in some agencies are purporting to issue binding regulations under their own name and authority.

The ONLY individual at FDA that has authority to write rules/laws is the Commissioner of FDA as that individual is appointed by the President. But…

…this rule published in the Federal Register

…was NOT written by the FDA Commissioner. Instead, the rule/law was written by FDA employee “Jeffrey Shuren, Associate Commissioner for Policy and Planning“. (The rule/law author is listed at the bottom of each listing in the Federal Register.)

The above is a significantly important law, intended to protect the public and animals from Mad Cow Disease. Why the FDA handed over this authority to an “Associate Commissioner” is difficult to understand.

There are many more laws relating to food and animal feed published in the Federal Register that are authored by an FDA employee (instead of the ONLY person with authority to write law, the Commissioner of FDA).

This law – written by an FDA employee, not the Commissioner of FDA – establishes the accreditation requirements of third-party certification bodies to conduct food safety audits of foreign food entities.

Wouldn’t import food safety be a significantly important issue that required direct oversight by the Commissioner of FDA?

The rule/law below is FDA interpretation of the federal laws Food Safety Modernization Act. One significant change included within this FDA rule – written by an FDA employee – the agency suddenly changed the legal term ‘animal feed’ to “animal food” adding to pet owner confusion of pet products.

Another concerning issue of this rule/law, the FDA openly admitted the law was written with the best interests of the rendering industry in mind: “We made several revisions to this final rule, in response to comments that we received regarding the proposed rule, to affirm that the use of current sanitary food transportation best practices as described in these comments, e.g., the “Rendering Industry Code of Practice”.”

Why would it matter who wrote law?

The most significant reason is – it’s the law. The very basic principles of government in the United States requires that ONLY an elected official or appointed officer of the United States is allowed the privilege to write law. A federal agency that openly ignores this basic U.S. government principle is a rogue federal agency, operating as they will instead of abiding by (and enforcing) law as they are charged. It’s an insult to every law abiding citizen.

Another reason is every single law authored by an FDA employee instead of the Commissioner of FDA can be challenged and considered illegal in a court of law. The Pacific Legal Foundation – the organization that discovered this incredible issue – is challenging some of these issues now in courts. The laws authored illegally by FDA currently being challenged are some that hinder small business rights. But, the bigger concern (at least to me) is what if – as example – the Mad Cow Disease prevention laws are challenged because they too were not written by an an appointed officer of the United States. What if a rendering facility ignored those laws simply based on the illegal foundation they were written on? What if…all of the laws authored by an FDA employee instead of the federally required Commissioner of FDA are deemed illegal – unenforceable?

The ‘fix’ to this situation is not an inexpensive one. Each rule/law would need to be re-authored to correctly assign the proper authority (the Commissioner of FDA). And the number of illegally authored laws is massive by FDA. Per the research from Pacific Legal Foundation…

…98% of the laws/rules authored by FDA from 2001 to 2017 were done so illegally.

And this concerning investigation from Pacific Legal Foundation brings up one more concern to pet owners…AAFCO. The members of AAFCO – who are NOT appointed officers of the United States – write “Model Bills” which become law in each U.S. state. The FDA – through its Memorandum of Understanding agreement – allows AAFCO to legally define each pet food ingredient. Could every single pet food regulation be challenged or even ignored because they are not authored by the proper authority?

The Pacific Legal Foundation has received investigative assistance from Senator Ron Johnson (R-WI). Let’s hope Senator Johnson – who is the chair of the Senate Homeland Security and Governmental Affairs Committee – will help force the FDA to properly do their job and correct this massive problem.

Sincere thank you to the Pacific Legal Foundation for their investigation. Pet owners can read more about their legal investigation by Clicking Here.

Wishing you and your pet(s) the best,

Susan Thixton
Pet Food Safety Advocate
Author Buyer Beware, Co-Author Dinner PAWsible
TruthaboutPetFood.com
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6 Comments

6 Comments

  1. readerguest9

    May 23, 2019 at 3:15 pm

    Another reason to avoid pet food. Guess what, you can go to a store and buy a big bag of frozen green beans or mixed Asian VEGGIES, KEFIR by the yogurt and buy pastured organic EGGS for animal protein and order online 2 lbs of CHIA SEEDS for fiber. Only a teaspoon of chia seeds for big dogs, and 1/2 tsp for medium dogs and 1/4 tsp for tiny dogs for fiber and firm poop. Add a GREENS POWDER kelp, spirulina, chlorella, and a REDS powder cranberry to prevent urinary tract infections. I don’t buy anything from big pet food anymore. More are learning to buy non pet food. They cheat pet owners, and pet owners buy their own food for their pets.

  2. Dianne & Pets

    May 24, 2019 at 4:16 pm

    Does this apply to compliance policies? It is an odd situation. In practical terms, most laws are likely written by subordinates and then signed by the appropriate appointee.

    • Susan Thixton

      May 24, 2019 at 4:18 pm

      Compliance policies are not legally binding, so I don’t believe they would apply to this situation.

    • ~Pet Owner~

      May 25, 2019 at 5:20 am

      I could be crazy, but since the FDA is already dishonest, wouldn’t this be a matter of changing out the signature, just for the sake of appearances?

  3. ~Pet Owner~

    May 28, 2019 at 9:01 pm

    The irony is, pet owners are so “frightened” from NOT using a “complete & balanced” PF but they could actually be doing more harm. My estimate would be to widely rotate (more trusted) brands because they all couldn’t be making the very same mistake / mis-proportion (per ingredient). Also add real whole food (human edible) ground beef, sweet potato, brown rice, and other foods your dog can tolerate. But quit kibble, it’s cheaper and probably even more susceptible to mis-proportioning.

    • ~Pet Owner~

      May 28, 2019 at 9:02 pm

      Sorry, this comment belongs on another thread! I am transferring it.

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