Standards of Identity

September 14, 2018

The American food industry has seen incredible innovation over the last several decades. Not only is healthier, safer food more accessible and affordable than ever, but whole new foods are being offered. Safe, tasty alternatives to meat, dairy, gluten, and eggs are now ubiquitous, especially plant-based dairy alternatives like almond, soy, and coconut milks.

This should be the kind of story Americans celebrate, an example of American entrepreneurship and innovation at its best. It should be – but isn’t. Consumers may like milk alternatives, but politicians seem opposed.

According to a proposed rule from the Food and Drug Administration, these products don’t “count” as milk and must either be renamed or pulled from grocery store shelves.

Under an antiquated 1938 law, the FDA has the power to set “standards of identity,” rules defining what does and does not qualify as a particular food product. And according to the FDA, the word “milk” can only describe “lacteal secretion, practically free from colostrum, obtained by the complete milking of one or more healthy cows.”

And so, the FDA wants to crack down on milk alternatives. They say it’s for consumer safety. The facts suggest otherwise.

First, standards of identity have a history of non-enforcement. To start picking and choosing which of the 280 outdated definitions to enforce now would seem arbitrary, or worse.

Part of the reason these rules haven’t been fully enforced is that the regulations themselves haven’t kept pace with many of the modern food innovations over the years. Furthermore, today food products are required to include ingredients on the label. Consumers know what they’re buying and eating.

So what is the real reason for the sudden crackdown? As with so many things in Washington, follow the money.

Dairy sales have been falling since the 1970s and dramatically over the past seven years, while the market for plant-based alternatives has only grown. Between 2011 and 2015, the total milk market shrunk by more than $1 billion; and almond milk sales alone grew by 250%.

Proponents of the FDA’s proposed rule call these products an “attack” on dairy farmers. And therein lies the real motive: to stifle competition and prop up the dairy industry.

The FDA crackdown is just a classic example of cronyism – big business conspiring with big government to rig the economy for them and against their customers.

A few weeks ago, I introduced legislation that would protect standards of identity regulations from this kind of abuse. My amendment to the farm bill would have prevented the FDA from enforcing these rules against products simply because of their use of a common compound name, and so protect everything from “almond milk” to “cashew butter” and “gluten-free bread” from silly accusations of illegal labeling.

Unfortunately, 84 Senators voted against this common-sense reform – Republicans who preach fealty to the free market, and Democrats who insist they fight for the “little guy” against Big Business. In a few months, when the Feds yank soy milk from the shelves, or force you to buy a delicious quart or “liquid legume excretion,” you’ll have them to thank.

Opting In to Better Airport Security

September 7, 2018

In the 17 years since its inception, the Transportation Security Administration (TSA) has managed to incorporate itself into the American way of life, both as a topic of news coverage and as a punch line for comedians.

Now that an entire generation of Americans can’t remember the pre-TSA era, most people who fly can recall a personal experience with the agency.

And these experiences are rarely stellar.

After the September 11th terror attacks, a push was made to federalize the previously privately-run screening process at airports. This resulted in the TSA being formed under the Department of Homeland Security.

Wary of the cost to taxpayers and inefficiencies that come with complete government control, some members of Congress balked at the idea of the government completely federalizing the airport screening industry. To assuage these concerns, a provision was added to the legislation allowing airports to choose a private contractor if the TSA approved of the contractor.

While studies have shown that the airports who choose to work with a private contractor reduce screening costs by up to 11% without compromising safety, only 22 airports across the country opted-in to this program.

This isn’t due to security concerns, but rather to the bureaucratic red-tape that comes with the TSA being judge, jury, and executioner in all aspects of contractor selection. Just last month, Orlando International Airport threatened to move to a private contractor after having communication and accountability issues with the TSA. They only moved back to the TSA after Sen. Bill Nelson (R-FL) stepped in to mediate between the parties.

That is why I plan to introduce the Screening Partnership Reform Act this next week, to try and unleash the potential cost-saving benefits of these private screening contractors, while also simplifying the application process and improving the efficiency of our screenings.

The TSA currently evaluates these prospective contractors like many agencies do – taking cost into account.

However, as it stands, the TSA does not currently include the cost of benefits guaranteed to federal employees, which could account for as much as 10% of the total amount the TSA pays their employees for these services. This bill would change that.

Additionally, after 17 years’ experience with the TSA, we’ve come to see many of its inefficiencies. While there is reason to believe the TSA has improved on its abysmal 5% success rate at detecting credible threat, there is obviously room for growth.

This bill would help address this deficiency by allowing each private screening company contracted through the TSA to submit recommendations on new approaches that could improve the TSA’s efficiency and success rates.

Americans are willing to put up with quite a bit to travel. But we can do better than the TSA in its current form. My bill would allow the government to save taxpayer money, and do a better job keeping us safe.

Land and Water Conservation Fund

August 24, 2018

Our nation boasts an abundance of beautiful topography. Sweeping plains, rolling hills and valleys, rugged deserts, glassy lakes, and cascading waterfalls are all found across our various states. And Americans should indeed enjoy the benefits of these natural features.

The Land and Water Conservation Fund (LWCF) Act of 1965 was enacted to further this goal: to strengthen the “health and vitality” of our citizens by helping preserve, develop, and ensure access to outdoor recreation resources. While this is certainly a laudable goal, the fund has unfortunately drifted far from its original intent and is in desperate need of reform.

The fund was set up to be the principal source of money for federal land acquisition, and to assists states in developing recreational planning and facilities. Originally, the LWCF directed 60% of its funds to be appropriated for state purposes and 40% for federal purposes. However, in 1976 the law was amended to remove the 60% state provision, stating that “not less than 40%” must be used for federal purposes.

The result? About 61% of this money has historically been spent on federal land acquisition, while only 25% has been allocated to state grants. The LWCF has thus added an additional 5 million acres of land to the federal government’s vast estate.

Unfortunately, the federal government has proven to be a poor steward of the land that it has purchased. According to a 2017 CRS report, the maintenance backlog on federal land is estimated to be $18.62 billion. Wildfires have run rampant in the West and the government has failed abysmally in preventing them. Ill-kept roads and trails mean that citizens sometimes don’t have access to our nation’s greatest parks.

The LWCF’s ability to accrue additional revenues to the fund is set to expire on September 30th. Supporters argue that the program cannot function without reauthorization, and just this week there was already a proposal in Congress to permanently reauthorize it – without any major reforms.

But the fund currently has a balance of $21.6 billion that can continue to be appropriated for LWCF projects going forward. Under the FY2018 appropriation level, it would take around 50 years to exhaust the fund.

Congress has reauthorized the program, without reform, for years. And permanently reauthorizing the program would be even worse, because it would deny us of any leverage to enact changes to it in the future.

I believe that there are several key reforms that we can and should make before reauthorizing it.

First, we should restore the original balance of funds so that the majority of them go to the states, as the law originally intended. We ought to empower the states and local stakeholders – who are best equipped to manage LWCF funds and care for the lands in their jurisdiction.

Second, we should mandate that the funds cannot be used for further land acquisition by the federal government. Instead, a portion should be required to go towards National Park Service maintenance backlog projects.

The last thing Congress should do is authorize more money for the federal government to acquire more lands that it can’t take care of. If we truly want greater access to and preservation of our nation’s beautiful lands and waters, we need to rethink LCWF in the long term.

The Truth About 3D Guns

August 3, 2018

This Tuesday President Trump tweeted, “I am looking into 3-D Plastic Guns being sold to the public. Already spoke to NRA, doesn’t seem to make much sense!”

The White House has not offered any clarification on what exactly President Trump’s tweet meant, but if he is worried about plastic guns being sold to the public, he shouldn’t be. The Undetectable Firearms Act of 1988 already makes the sale, and even the mere possession, of plastic guns illegal.

Following President Trump’s tweet, however, Sen. Bill Nelson (D-FL) went to the Senate floor and tried to pass a bill by unanimous consent (meaning there would be no roll call vote, the bill would just pass the Senate immediately without any debate) that would have banned the mere publication of any designs for a plastic gun that could be produced by a 3D printer.

I objected. Anytime legislation begins with words “It shall be unlawful for any person to intentionally publish…” I will force the Senate to take a long look at that legislation.

The federal government already believes it has the power to ban the publication of 3D plastic gun designs under the Arms Export Control Act and it has been selectively enforcing this ban on a company called Defense Distributed since 2013. Other entities have published 3D plastic gun designs on the internet for years, but the federal government has been locked in a legal dispute with Defense Distributed since 2015.

But the federal government has been losing this legal battle. That is why the State Department entered into a settlement with Defense Distributed this July that allowed them to publish their 3D plastic gun designs.

Nelson’s ban would be just as unconstitutional as the State Department ban.

“There are many limits on our First Amendment rights of speech,” Nelson claimed Tuesday. “You cannot say ‘fire’ in a crowded theater,” he explained.

Nelson may want to read up on his First Amendment case law. Justice Oliver Wendell Holmes’s quote, “The most stringent protection of free speech would not protect a man in falsely shouting fire in a crowded theatre,” comes from the case U.S. v Schenck where the Supreme Court upheld the conviction of man distributing pamphlets opposed to the draft during World War I.

Schenk was a shameful decision. And it has since been overturned by Brandenburg v. Ohio where The Supreme Court held a member of the KKK could not be convicted for his hateful speech. Unless speech “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action” the government cannot ban it the court ruled.

This is the right standard. There are literally hundreds of gunsmithing books for sale on Amazon right now. Does Nelson want to ban all those books too?

Undetectable plastic guns are a danger. That is why the production and possession of them has been illegal for 30 years. But just publishing a design for such a gun is not the same as having such a gun. We cannot censor speech. That is why I objected to Nelson’s bill Tuesday and it is why I will continue to fight for the First Amendment.

The War on Almond Milk

July 27, 2018

A few years ago a small start-up company in California called JUST, Inc., formerly known as Hampton Creek, started selling a vegan brand of mayonnaise called “Just Mayo” in stores nationwide.

This start-up company was the picture of an American success story: a small business that developed a popular and innovative product, in this case an affordable eggless alternative to mayonnaise.

But “Just Mayo” was too successful for the likes of the egg industry. So much so that top executives from the industry conspired with a federal entity called the American Egg Board and USDA employees to coerce and threaten retailers into not carrying the “Just Mayo” brand.

And how did they do this? They accused JUST, Inc. of illegally using the term “mayonnaise” since their product did not contain any eggs.

What was their true crime? Their success. As the American Egg Board’s CEO had put it in an email to colleagues, Just Mayo posed a “crisis and major threat to the future of the egg product business.”

This is just one example of cronyist abuse of “standards of identity” established by the FDA.

The FDA established these labeling requirements to regulate what a food product must contain to be marketed under a certain name. While they were set in place with the intent of protecting consumer safety as part of the Federal Food, Drug, and Cosmetic Act of 1938, these antiquated rules have failed to keep pace with modern innovations.

Instead, they have been used as a tool by the well-established food industries to suppress competition and limit new players from entering the market.

And the market for meat, dairy, and egg alternatives – such as plant-based products – has only grown in recent years. In fact, between 2015 and 2016 the total profit for sales in plant-based foods rose by 8 percent. Consumers are clear that they want these options available to them.

But the current labeling requirements on the books are poised to restrict many of these innovative products.

For example, milk is defined by the FDA as “lacteal secretion… obtained by the complete milking of one or more healthy cows.” By this definition, almond milk, soy milk, and coconut milk – among others – technically violate the legal standard.

And the list goes on… “almond butter,” “goat cheese,” and “gluten-free bread,” for example, could also be accused of being illegally labeled.

Not only are these labeling requirements outdated, but they are also unnecessary. There are already separate requirements for manufacturers to list all of a product’s ingredients on the nutrition facts panel – confirming the fact that consumers are not “deceived” by these labels.

The truth is that these labeling requirements play right into the hands of the large, cronyist food industries that want to place new, innovative products at a disadvantage. Because after becoming established and reaching success themselves, they aim to pull up the ladder behind them – preventing any of the small competitors from having a chance in a level playing field. Rather than playing fair and square, they stifle competition and rig the rules of the game in their favor.

That’s why I have introduced legislation that would protect “standard of identity” requirements from this kind of abuse.

This bill would prohibit “standards of identity” from being enforced against products simply because of their use of a common compound name – specifically where a word or phrase identifies an alternative plant or animal source.

Because the cronies should not have a stranglehold on food terms, or a monopoly on the market. It is only right that we let companies like JUST, Inc. – and the other small start-ups and innovators across the country – have a fair shot at the competition.

No Oil Producing and Exporting Cartels Act (NOPEC)

July 20, 2018

Americans are all too familiar with sticker shock at the gas pump. How often have we pulled into the gas station only to be dismayed at the cost of filling the tank?

But gas prices don’t have to be as high as they are. In fact, oil prices have been subject to artificial and illegal pricing by OPEC, the Organization of Petroleum Exporting Countries, for decades.

OPEC, an intergovernmental organization of 15 nations, was founded in 1960 with the stated mission of “coordinating” members countries’ production of oil and “stabilizing” oil markets. Accounting for more than 60 percent of the world’s crude oil exports, OPEC essentially coordinates oil production to manipulate prices and supply, driving up fuel costs for millions of consumers across America and the world.

In other words, OPEC functions as a blatant international oil cartel.

For evidence, we need look no further than the 1970s oil embargo, when OPEC slashed oil production and pushed oil prices to record highs. Or more recently, OPEC decided to cut back production at the end of 2016 through 2017, reducing production by a total of nearly 1.8 million barrels per day, and again increasing prices.

The United States has long prohibited price-fixing and market-division conspiracies through our antitrust laws. Over a century ago, Congress passed the Sherman Act to combat the threat posed by anti-competitive cartels.

And due to globalization, many countries have worked on a multinational effort to police cartels, in some cases entering into formal cooperation agreements to combat international price-fixing.

In fact, since 1999 the U.S. Department of Justice has prosecuted many other international cartels involved in the production of rubber chemicals, electrodes, airlines, memory chips and vitamins.

But historically, U.S. courts have not been able to enforce antitrust laws against OPEC, finding that it is protected by sovereign immunity under federal statute and the “Act of State” doctrine.

That is why I have worked with Sens. Chuck Grassley (R-IA), Amy Klobuchar (D-MN), and Patrick Leahy (D-VT) to introduce the No Oil Producing and Exporting Cartels Act, or NOPEC.

Our bill would explicitly authorize the Justice Department to bring lawsuits against oil cartel members for antitrust violations, clarifying that neither sovereign immunity nor the “Act of State” doctrine makes them exempt from the laws regarding illegal coordination and price fixing.

If private companies engaged in the international price-fixing activities that OPEC has, there is no question they would be found guilty of illegal behavior. There is no reason that this cartel should be treated differently based on their connection to national governments.

Our bill would therefore loosen OPEC’s unfair control over our economy, helping restore the principles of fair competition and the free market. And at the end of the day, this will help consumers in America – and across the world – have more affordable access to gas and lessen the expenses of the daily necessities to take care of their families.

The Transportation Empowerment Act

July 13, 2018

Americans are increasingly divided on many issues, but federal funding for interstate highways isn’t one of them.

The American people broadly support federal spending to maintain the interstate highway system and the federal gas tax has been a reasonable, but not perfect, way to pay for it.

Unfortunately, decades ago politicians in Washington began using the once flush Highway Trust Fund to fund their own non-highway transportation pet projects.

In 1983, for example, Congress created a mass transit account within the Highway Trust Fund that was funded by simply stealing gas tax dollars from the HTF.

Today roughly 25 percent of your gas tax dollars are diverted in a similar fashion to bike paths, buses, light rail, streetcars, and vegetation management.

No wonder the system is broke.

For more than 10 years, Congress has transferred or authorized more than $144 billion from the general fund to bailout the HTF. Absent any changes, the CBO estimates that the HTF will still face a cumulative shortfall of $161 billion by 2028.

The status quo is not sustainable. And that is why I have introduced the Transportation Empowerment Act with Sens. Marco Rubio (R-FL) and Ted Cruz (R-TX).

Under our bill, the federal gasoline tax would gradually be lowered from 18.3 cents per gallon to 3.7 cents per gallon over the next five years, leaving Washington with sufficient funds to maintain the current interstate highway system. It also would give states a more equitable share of federal gas-tax revenue as block grants. States would then be free to set their own gas tax levels and fund their own transportation projects.

By cutting out the federal middleman, we can protect these funds from greedy politicians and special interests taking their cut before sending them back to the states with strings and burdensome regulations attached. And we can lessen the influence of distant bureaucrats in Washington who waste the money on inefficient and non-highway projects.

Instead, states and cities could plan, finance, and build better-designed and more affordable projects. All 50 states would be empowered to meet their diverse transportation needs.

Some communities could build more roads, while others could repair old ones. Some might build highways, others light rail. All would be free to experiment with innovative green technologies, and could find new ways to finance their projects.

In our 21st Century Economy, we need a 21st Century transportation system. And the best way to do this is to allow state and local governments to customize their transportation policies to meet their unique needs and values. The Transportation Empowerment Act is a step in that direction.

Time to Check Out of Checkoffs

June 29, 2018

Most people are familiar with the slogans: “Got milk?”, “Pork, the other white meat,” and “Beef, it’s what’s for dinner.”

But what they might not be aware of is the cronyist underbelly of these slogans.

The US Department of Agriculture checkoff programs behind these slogans collect compulsory fees from producers of milk, eggs, beef, and other agricultural products. The funds are then used to promote and do research on those particular commodities.

Unfortunately, these programs have been rife with abuse.

The USDA has been lax in exercising oversight of checkoff boards. Many of these programs have crept beyond the scope of their statutory mandate by engaging in illegal lobbying and anti-competitive activities, such as the case of Just Mayo in California.

The original intent of these programs was not to prevent any new products from having a fair chance in the marketplace. What were supposed to be promotional boards have instead become protectionist boards.

Checkoff programs force farmers to pay into a system that sometimes actively works against their interests. On top of that, the boards for these programs have come under fire for a lack of transparency and for misuse of their funds. Some have gone so far as failing to submit congressionally mandated spending reports, refusing and delaying FOIA requests, and even engaging in protracted legal battles to prevent public audits from being disclosed.

In short, these programs are in desperate need of reform.

That is why I have worked with my colleagues, Sens. Cory Booker (D-NJ), Rand Paul (R-TN), Maggie Hassan (D-NH), and Elizabeth Warren (D-MA) to draft the Opportunities for Fairness in Farming amendment.

This bipartisan amendment began as a standalone bill and would address some of the most grievous abuses of the commodity checkoff programs.

First, it would prohibit them from contracting with any organization that lobbies on agricultural policy, with an exemption for research at institutions of higher education.

It would also prohibit employees and agents of the checkoff boards from engaging in activities that may pose a conflict of interest.

Furthermore, it would establish uniform standards for checkoff programs that prohibit anticompetitive activity and any unfair or deceptive practices, and it would implement much-needed transparency measures.

While the amendment was not adopted in the most recent Farm Bill, it continues to gain more and more support – from both sides of the aisle – and we will keep pushing for its passage.

These common-sense reforms will not be convenient to the giants in the agriculture industry – at least not the ones using checkoff dollars to rig the system in their favor. But they will help farmers – and particularly the little guys – to see exactly where the fees they pay are going and ensure that their hard-earned money is not being used against them.

Waters of the United States

June 22, 2018

In the movie The Lion King, Mufasa is teaching young Simba about the lands he will eventually rule by saying “Look, Simba, everything the light touches is our kingdom…”

While this moment is fine when played out by a cartoon monarchy, it is gross federal overreach when it’s perpetuated by a federal bureaucracy in the United States. Yet that is essentially what is happening under the Waters of the United States, or WOTUS, rule that was imposed by the Environmental Protection Agency and the Army Corp of Engineers in 2015. These bureaucrats essentially said “everything the water touches is our jurisdiction…”

The rule allowed them to claim regulatory control over even “ephemeral” or “intermittent” water flows, meaning that even man-made ditches or patches of dry land that retain water only a few days a year are subject to the administrative control of this agency.

This would increase EPA jurisdiction over state lands by as much as 400%.

While the Trump administration wisely delayed the rule’s implementation until 2020, Congress needs to act to provide certainty that this rule will not go into effect. It was Congress that allowed this rule to come into being, and Congress needs to fix it.

When Congress passed the Clean Water Act of 1972, it granted ambiguous authority over the waterways of the United States to the EPA. In the kind of horrible lawmaking that often happens in Washington, D.C., the legislative branch gave up their lawmaking authority by setting a broad, vague standard and allowing an administrative agency - filled with unaccountable, unelected bureaucrats - to figure out the rest.

The mess that is WOTUS is a perfect example of this.

WOTUS was crafted by the EPA in a flawed - and actually illegal - process. Not only did the EPA disregard the comments of ranchers, farmers, and others who would be most affected by this rule, but the Government Accountability Office ruled that the EPA broke the law when advocating for support of this rule while it was being developed.

Additionally, water that is sourced on private property could require property owners to obtain EPA permits for routine actions such as landscaping, farming, or building on their own land. Many people that would be affected by this rule wouldn’t even be aware of it, and could be subject to thousands of dollars a day in fines.

This is why I attempted to attach a WOTUS repeal amendment to this week’s appropriations bill. This kind of policy attachment to an appropriation bill is not uncommon. Yet, despite the WOTUS repeal amendment having a recent history of bipartisan, majority support in Congress and actually passing in the House’s appropriation bill, 20 of my GOP colleagues joined with the majority of Democrats in voting to table the measure. This was done solely for political purposes and continues Congress’s pattern of legislative abdication.

While the King of Pride Rock may have authority to broadly claim governance of land unimpeded, the EPA does not have that right. It is Congress’s responsibility to make sure this does not go unchecked, and it is past time we enact legislation to repeal the expansive WOTUS rule.

The Internet’s Death Was Greatly Exaggerated

June 15, 2018

When Ajit Pai, Chairman of the Federal Communications Commission, called for a re-evaluation of the “Open Internet Order” – more commonly known as Net Neutrality – activists and entertainers launched promised nothing short of Armageddon.

According to the doomsayers, without these rules in place, start-ups and those without immense wealth would be shut out; information could be shutdown on a whim; you would even have to pay $2 per Google search. Essentially, the Internet would become a black hole of pay-to-play oppression and censorship. Without net neutrality the Internet as we know it should have ceased to exist when the Net Neutrality rules were repealed on June 11th of this week.

And yet here you are, reading this, using the Internet, without any of those catastrophic prophecies coming true.

The reason why they didn’t is simple – the Internet existed freely and openly before the rules went into effect in 2015, and it will continue to exist freely and openly now that those rules have been repealed.

In fact, the repeal of these rules will actually help the Internet.

Up until the regulations went into effect in 2015, the Internet was categorized as an ‘information service.’ Investment and innovation helped shape and spur the Internet forward, ushering in the information age and creating the boom that caused the Internet to be dubbed the information superhighway.

But according to USTelecom, that investment decreased by billions once the new rules went into effect in 2015. This was the first-ever decline in broadband investment outside of a recession.

Even some smaller and municipal Internet service providers – those the Net Neutrality rules purportedly protect – said they had delayed rolling out new features or services because they were concerned about the possibility of dealing with a complaint or enforcement from the FCC.

These rules instead of fostering innovation, spurred more consolidation and strangled investment in new ideas.

This is why I and many of my colleagues fought to have these regulations rolled back and why I voted to see them repealed a few weeks ago.

While there are reforms to be made, the framework used to rationalize Net Neutrality was designed for telegraphs and railroads and rotary telephones and is out of step with today’s technological advances. Americans should be able to enjoy a free and open Internet, and the best way to ensure that is to allow the free market to foster innovation and to enforce existing anti-trust and consumer protection laws. Now that Net Neutrality rules have been repealed, we can continue to let the free market and existing law work to make the Internet great again.



While there are reforms to be made, the framework used to rationalize Net Neutrality was designed for telegraphs and railroads and rotary telephones and is out of step with today’s technological advances. American’s should be able to enjoy a free and open Internet, and the best way to ensure that is to allow the free market to foster innovation and to enforce existing anti-trust and consumer protection laws. Now that Net Neutrality rules have been repealed, we can continue to let the free market and existing law work to make the Internet great again.