Last January, when the Food and Drug Administration released strict new rules for ensuring the cleanliness of food production, distribution and warehousing facilities, the American Bakers Association crowed in a press release that they'd "won a major victory" for its members. They had–the proposed rules wouldn't apply to many of their warehouses. 

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Not mentioned in that press release was the person who helped the ABA achieve the win: Miriam Guggenheim, a food policy focused attorney with Covington and Burling. Though she has not been registered as a lobbyist since 2010–before Congress passed the Food Safety Modernization Act–her online biography notes that she "Successfully petitioned FDA for an exemption" for "most warehouses and distribution facilities." In her official bio, she describes her work as helping companies achieve "their marketing goals while minimizing regulatory and litigation risks."

• READ MORE ABOUT HOW OUTSIDE GROUPS HAVE BEEN LOBBYING FDA ON IMPLEMENTATION OF NEW SAFETY LAW.
• SEE SEARCHABLE SPREADSHEET AND MEETING MEMORANDA ON FOOD POLICY PROVIDED BY FDA IN RESPONSE TO SUNLIGHT'S FOIA. (See below.)
• READ MORE ABOUT RECORDS OF EX PARTE MEETINGS.
• SEE TIMELINE ON EXEMPTION SOUGHT IN FOOD SAFETY LAW.
• SEE HOW LOBBYING DISCLOSURE LAWS SHOULD BE STRENGTHENED.

The CFSAN meetings give a picture of how the nation's food safety laws are influenced by outside interests at a time when the agency is under pressure to implement a major food safety law–the Food Safety and Modernization Act–itself a response to incidents of food-borne bacteria such has salmonella, e. coli, and listeria that have sickened and in same cases killed people. Congress passed the law in late 2010–it was one of the last acts of the outgoing House Democratic majority–and President Barack Obama signed the bill on January 4, 2011. That left it to the FDA to write the detailed rules that the food industry would have to follow to comply with the law, which also gives the industry a second opportunity to influence those rules, often with little or no scrutiny from the public or the press.

"This is supposed to be a transparent process. Under President Obama, things were supposed to be more so, but if anything it's gotten more opaque," says David Acheson, a former FDA official and president and CEO of the Acheson Group, which does consulting with industry about implementation of the Food Safety and Modernization Act. "There are people who want to follow the making of the sausage and why shouldn't you? It's all going to impact us and our family's health."

Acheson himself is listed as attending this March 2011 meeting to discuss implementation of the FSMA. He is not a registered as a lobbyist. His biography says he uses "his regulatory insight, food safety knowledge, and expertise in crisis response to food industry clients around the globe on how best to manage risk in a global supply chain and evolving regulatory landscape."

The meeting logs also show that Joseph Levitt of Hogan Lovells, is another frequent visitor at the FDA. Unlike Guggenheim, Levitt made a trip through FDA's revolving door, serving in various positions in the agency, including six years  as director of CFSAN. His firm biography describes him as a 25-year veteran of the agency who "counsels numerous food companies and trade associations in food safety, labeling and compliance matters and how to work effectively with the FDA." Levitt declined an interview request by Sunlight.

Levitt is registered as a lobbyist for the Grocery Manufacturers Association; however, he has also appeared at FDA meetings with other industry groups, such as the National Chicken Council and the International Dairy Foods Association. Overall, the meeting records show his presence at four meetings. While he does not himself give campaign contributions, his firm's PAC and coworkers have distributed $1.8 million over the years, according to Influence Explorer. So far this election cycle, the PAC has distributed more than $125,000, almost evenly split between Democrats and Republicans.

Overall, the meeting memoranda, which provide details on 33 meetings over an approximately two-year time span, show that industry groups and lobbying, consulting, and law firms send far more representatives to meetings than do consumer groups. Representatives of consumer groups, such as Center for Science in the Public Interest, Food and Water Watch, and Consumers Union, were present at a half dozen meetings, or 18 percent. Industry groups sent representatives to 26 meetings, or 78 percent of the total. Lobbying, consulting, and law firm representatives were present at 17 meetings, most of those overlapping with industry clients.

The subjects of these meetings varied widely, and often involve industries in the middle of food safety controversies. For example, representatives of the American Spice Trade Association met with CFSAN staff twice, the first time on June 11, 2011, the second earlier this year, on April 15. At both meetings, the the group presented information on industry standards for keeping spices free of contamination. The FDA has been conducting an anlaysis that is expected to show that spices are a "surprising potent source of salmonella poisoning," according to an August New York Times report.

At a November 23, 2012 meeting, an executive from Monster and Covington and Burling attorneys, including Guggenheim, presented information about the safety of the company's controverisal energy drinks. The following month, in response to a FOIA request, the FDA released incident reports showing five deaths that may have been related to the energy drinks. Covington and Burling is listed as a lobbying firm for the company, although Guggenheim herself is not.

In fact, Guggenheim maintains a low profile. Though she is a frequent speaker at food industry pow wows, she does not talk to the popular media–she declined to be interviewed for this piece. She gives very little in campaign contributions, although colleagues and the PAC for her firm, Covington and Burling, are the source of $4.5 million, with PAC contributions split nearly evenly between the parties. She has registered as a lobbyist in the past, but has not been on the rolls since 2010. 

And while she's a frequent visitor to CSFAN, none of the meeting records obtained by Sunlight appear to be about the warehouse exemption sought by the American Bakers Association with Guggenheim's help. That episode is a case study of how the sophisticated way such groups wield power in Washington, burying themselves in the arcane details and then picking the arena where they have the best chance for success.

Rather than securing a straightfoward exemption for warehouses in the Food Safety Modernization Act, the ABA pushed for language that would let the Food and Drug Administration decide the matter. This strategy is not uncommon: as Sunlight has reported, in 2008, industry groups pushed to give an expert commission, rather than Congress, the authority to decide whether particular plasticizers, known as phthalates, would be banned. That commission is now under heavy lobbying by ExxonMobil and other industry groups. In the case of the warehouse exemption, the paragraph the ABA suggested, which Sen. Dick Durbin, D-Ill., included in the S. 510, the Food Safety Modernization Act of 2009, reads:

"The Secretary may, by regulation, exempt or modify the requirements for compliance under this section with respect to facilities that are solely engaged in the production of food for animals other than man, the storage of raw agricultural commodities (other than fruits and vegetables) intended for futher distribution or processing, or the storage of packaged foods that are not exposed to the environment."

After Congress passed the bill in late 2010 and President Barack Obama signed it in early 2011, the ABA then relied on this authority when filing a citizens petition at the FDA–spearheaded by Guggenheim–asking for an exemption.

Joining the trade group in the request were several other food lobbying powerhouses: the American Frozen Food Institute, the Grocery Manufacturers Association, the International Bottled Water Association, the International Dairy Foods Association, the International Warehouse Logistics Association, the Peanut and Tree Nut Processors Association, and the Snack Food Asssociation. Their argument in a nutshell: that warehouses that store only packaged foods that are "not exposed to the environment" are subject to safety rules at other points in the chain of production and that the groups are not aware of any "significant food-borne illness outbreaks" originating at such facilities. 

Tony Corbo, a lobbyist for the consumer group Food and Water Watch, says that while such warehouses may be lower risk than other facilities where food is processed, they still need oversight. "A lot of these warehouses do have problems," he said. "Rodents are running around, there may be water seeping in and damaging boxes." 

In 2011, for example, the FDA issued a warning letter to a Tacoma, Wash., warehouse where flour and sugar stored, where inspectors found rat droppings, gnawed bags, and a variety of dead flies.

While the FDA did not reply formally to the trade groups' petition for an exemption, the proposed rule issued by the agency contains several exemptions for warehouses, reported the ABA, "including one for non-refrigerated distribution warehouses such as those utilized by the baking industry."

The win isn't even the last bite the ABA will have at the apple. The FDA has twice postponed the comment period for the proposed rule. The new deadline is November 15. So now the industry groups are lobbying for further clarification and expanded language for the exemptions in the final rule.

Download entire spreadsheet here.