On December 3, 2020, Colorado Department Of Agriculture received a request, "I am wanting to access feed regulations and definitions of feed ingredients in your state. Please let me know how I can access these regulations."
On December 7, 2020, CDA Division Director Hollis Glenn stated, "As you may know, we have adopted the Official Publication by reference through our rule. The Official Publication contains the feed terms and definitions."
Over the decades, states such as Colorado have adopted material they refer to as the "official feed definitions" they state is owned by a private non profit corporation, "AAFCO." Over the past few years, internal documents obtained through FOIA requests have shown that it's actually public employees helping to operate this private corporation. Hollis Glenn himself, a public employee of CDA, sits on the AAFCO board of directors. While states often refer to AAFCO as though it's an independent 3rd party organization, public employees are AAFCO.
Hollis Glenn states the "official feed definitions" are adopted by Colorado into their feed law. As of now, there is no way for a Colorado citizen to sign onto the CDA website, and see all the regulations they adopted.
The request to CDA for access to the official definitions adopted as regulations in Colorado, came with a staggering response from CDA. They could provide copies of them, for a fee of $103.75. The state maintained "you are welcome to come to the Department and review free of charge. You may also purchase a copy of the Official Publication at the AAFCO website."
A primary tactic of public employees has been to refer citizens to pay for access to regulations outright. Other public employees such in regulatory positions in Pennsylvania, Illinois, and Washington all took a position that regulations must be "purchased" from AAFCO directly. Over the years as more and more citizens look into pet food regulations, this tactic by public employees is becoming subject to more and more scrutiny from citizens. CDA officials attend these private AAFCO meetings while being paid on their public job time. Public funds are used for "membership fees", helping to keep a source of revenue flowing for this private group. Public employees use public funds for airfare, hotel, and meals when attending AAFCO meetings in person. In a very questionable action, public employees copyright their work into an "AAFCO OP", which they then use public funds to purchase copies of. Public employees who operate "AAFCO" have claimed that the "sale of the OP" provides their private association with an income stream. Otherwise, they wouldn't get to "do what they do."
And still, even though so much public funds are used over the years to develop these regulations, CDA division director Hollis Glenn attempted to charge a fee of $103.75 for access to what is now official Colorado state regulations. The primary excuse for the charge was for "staff time." The amount of money Hollis Glenn has charged "AAFCO" over the years for the large amount of his staff time dedicated to developing private regulations, and operating this private association? $0.
Even during the COVID pandemic, as cases were rising, CDA stated "you are welcome to come to the Department and review free of charge." The key term here, "review." Again, the information attempting to be accessed and copied here is regulations in the state. The key term "review" doesn't appear to allow for the copy of the regulations. The requestor then asked, "May I come into your office and copy the material myself, with my phone?" Ben Walther of CDA provided the response, "the Official Publication (OP) is protected by copyright by the Association of American Feed Control Officials. We recommend you consult with an attorney to determine if copying the OP with your cell phone is in violation of any copyright laws."
The idea that a citizen would need to consult an attorney in effort to receive copies of regulations in the state, highlights the serious potential legal issue when it comes to the level of involvement of public employees developing official regulations through this private scheme.
CDA then received a barrage of questions. "This is the most bizarre and confusing process. Why does CDA consistently adopt material into law, making it official regulation, when CDA knows the material is protected by copyright law?" And "Most other regulations I can simply find on the website. Yet with these, I'm being told I either have to purchase from your private association. I'm being told you will charge me to copy what CDA adopted as regulation if I do not purchase the material directly from your private association." Lastly, "This is hardly transparency and it's more of a threat for you to suggest there could be legal action with my desire to have a copy of regulations adopted."
Another e-mail was sent to Hollis Glenn, "I am looking to get a copy of the pet food feed regulation definitions from the library. I am trying to understand what specific pages of the OP are the regulations you adopted by reference. Could you please confirm with me which pages those are specifically?" When challenged further and undoubtable when faced with a multitude of serious legal questions, Mr. Glenn finally relented, "The CDA is more than happy to provide responsive documents."
On December 10th, Hollis Glenn provided copies of the "feed terms and ingredient definitions" that were adopted into Colorado state law. Now, any requestor can put in a record request with the department of agriculture and receive the feed ingredient (pet food) regulations adopted into law in that state.
Showing that CDA can clearly provide regulations in a digital format, they regulations still do not appear on the CDA website for all citizens to access without having to go through e-mailing, and waiting for copies to be provided. CDA does not have any immediate plans of providing regulations in such a free fashion, still citing "copyright" law. How public CDA employees help develop this material and then allow for the material to be copyrighted, is an outstanding legal question CDA continues to avoid.
Prior to this issue in Colorado, I had attempted to personally obtain the feed definition regulations adopted into IL state law. I also attempted to obtain regulations in Washington, Indiana, and Pennsylvania. I was denied access in all states in the same manner in which Colorado originally attempted to deny the request detailed above. With Illinois, I filed a lawsuit. Law in Illinois state clearly detailed how regulations adopted by "reference" had to be made available for copy. Although not confirmed, it could be that the Illinois suit was brought to the attention of other public employees such as Hollis Glenn, who help operate AAFCO. Attempting to privatize the regulatory process to this extent makes public employees look really bad. Possibly aware that they too could be faced with such a lawsuit, Hollis Glenn appears to have reassessed his position and provide the actual regulations.
Internal emails obtained through records requests shows that this topic has long been of discussion between public employees heavily involved in AAFCO. Some states have admitted that they can't actually keep citizens from coming to the department of agriculture or state chemist office, and copying the regulations. Other states have stated that they would only allow citizens to view the material. Interestingly, other public employees discussed trying to scare citizens with a copyright infringement in effort to keep them from obtaining copies of the regulations, or posting them publicly. It appears as though CDA initially attempted to use this tactic, and then backed down possibly knowing how legally absurd it is to attack citizens in such a way.On December 18th, 2020, I wrote an e-mail to Ben Walther of CDA asking, "I am needing a statement from CDA on the following question. Why is CDA adopting copyrighted material into law? This is concerning CDA adopting "aafco" copyrighted text."
The response I received from Mary Peck of CDA was "As members of the Association of American Feed Control Officials (AAFCO), CDA incorporated the AAFCO Official Publication (OP) to ensure Colorado’s regulatory standards for feed terms and ingredient definitions align with national standards. Consistency among states ensures effective interstate commerce and strengthens the market and regulatory oversight, which is why it is such a common and fundamental concept among regulators. Adoption of the AAFCO OP provides the mechanism for which uniform consistency is achieved both in Colorado and nationally."
Ms. Peck ignored the fact that public employees do not actually need to make "regulations" copyrighted at all. CDA did not provide any information as to their objection of this tactic, and they appear to be quite defensive of what is currently happening, as if it's totally okay. Ingredient definitions can align with "national standards" without putting citizens at such a disadvantage. But putting citizens at as much of a disadvantage as possible appears to be a primary goal of AAFCO, and please remember that AAFCO is actually public employees. "Consistency" is the main excuse used by public employees to justify their questionable actions in this scheme of trying to privatize the regulatory process as much as possible.
What is clear is that this could all be done publicly, but it's not. Public employees do not have any plans of opening up their "AAFCO" regulatory meetings, and allowing citizens to attend without paying large entry fees. They also do not plan on providing any recordings of their meetings to the public, so citizens can access all the information spoken by lobbying groups, corporations, or public employees at this meeting. Although public employees may attempt to try and say statements to the effect of they are "ensuring transparency and public access to all its regulations," actions overall say otherwise.
And as the old adage goes...actions speak louder than words.
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