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Public "Regulators" Have The Same Legal Firm As Those They "Regulate"

In emails obtained through the freedom of information act, FDA employees have had questionable meetings and conversations throughout the years with representatives of AFIA (American Feed Industry Association), the largest lobbying group in the pet industry. For decades, FDA has not been holding public meetings to develop pet food ingredient definition regulations. This is a very important aspect of democracy and the regulatory process, and it seems that FDA should be proudly engaged in this official process. Yet, they're not. It could even be argued that FDA is taking the opposite approach, doing everything in their power to ensure that a private organization "AAFCO" continues to hold onto the process of making "official regulations" in a private setting.

FDA has long been a member of AAFCO, an association of public "regulatory" employees at state and federal levels. AAFCO is a private corporation, even though its board consists entirely of "public" employees who are all performing work using public funds and on their publicly paid time. The public employees proceed to copyright the material they call "official terms". They then adopt this material into their state laws by "reference". FDA acknowledges these ingredients at the federal level for pet food products in interstate commerce. FDA has what is called a "memorandum of understanding" with AAFCO, MOU 225-07-7001.

FDA is not regularly promulgating official ingredient regulations for animal feed and pet food in compliance with the federal administrative procedures act. The agency instead points to this collection of "approved" ingredients by this private corporation and considers them all to be "acceptable" for use in pet food products in interstate commerce. While many still call the pet food industry a "highly regulated" industry, these AAFCO ingredients do not appear to be actual federal regulations or rules. For example, AAFCO has an approved ingredient for "corn meal", and FDA recognizes the AAFCO definition for "corn meal", therefore allowing products using "corn meal" to be sold into interstate commerce products. Yet when FDA was asked for the official regulation for corn meal, FDA stated no such FDA regulation exists. 

Citizens can't access important information from AAFCO for this commonly used ingredient either.  Public officials hired a private citizen named Susan Hays to be the "executive director" of their private regulatory umbrella. Susan Hays has confirmed that AAFCO has no records associated with the creation of any AAFCO ingredient to provide members of the public regarding who proposed a particular ingredient, what comments were received on that particular ingredient, what the "science is" behind a particular ingredient, and who stands to benefit financially from some of the most deeply questionable AAFCO ingredients. 

Given that AAFCO is actually public employees trying their best to operate as private as possible, a troubling aspect by this group has been the restricting of access to certain citizens who have been critical of this back door "regulatory" process. Emails obtained through the freedom of information act show how public employees worked with a privately hired lawyer to "refuse access" to AAFCO meetings. The public employees were Kristin Green of University of Kentucky Feed Regulatory Services, Robert Geiger of Illinois State Chemist Office, Stan Cook of Missouri Department of Agriculture, and Ali Kashani of Washington Department of Agriculture. 

Publicly, AAFCO stated, "As directed by legal counsel and the board of directors, your access to AAFCO resources is restricted until the resolution of the federal lawsuit, Lsytn LLC v. Food and Drug Administration, No. 19-cv-01943-PAB-KLM." FDA and AAFCO falsely stated that certain members of the public were "parties to" and involved in this lawsuit against AAFCO and FDA, therefore resulting in the "restriction of access." I was one of the people AAFCO "restricted" access to and I can confirm I am not a "party to" this lawsuit. I have been documenting the FDA regulate by their opinion for a feature film, among other serious issues in the regulatory aspect of the pet food industry. I have uncovered a lot of questionable material through my work, which I regularly report on. I have independently sued FDA twice over federal freedom of information act law violations, which has nothing to do with the lawsuit brought by a company that AAFCO is citing. When I attempt to engage with various  public "regulatory" officials at both the state and FDA levels, most public officials refuse to speak to me or hang up the phone on me when I ask questions regarding their work as public officials for this private corporation. 

AAFCO later "lifted" this ban, potentially due to the serious legal issues raised given that public employees are actually behind the restriction of access. The federal lawsuit cited as the reason for the "restriction of access" is still going and in an appeal stage in the federal court system, yet the public employees of AAFCO didn't attempt to publicly re-restrict access to certain members of the public. Still, AAFCO has stated that they are a "private" organization and reserve the right to restrict access to anyone they wish, at any time. 

These public employees worked with a lawyer named John Dillard, of OFW law. This is the "legal counsel" cited in AAFCO official statement on this matter of essentially attempting to ban consumers from meetings. 

I have come into contact with John Dillard in other cases as well, including my attempt to access "regulations" which various states have adopted into their feed laws by "reference." When Illinois Department of Agriculture refused to provide me records to the AAFCO material they adopted by "reference", they cited AAFCO legal counsel as a major reason why they were not providing me the public records I had a legal right to receive copies of. When refusing me access to records, Illinois Department of Agriculture stated, "Copyright material is protected under Section 106 of the Copyright Act (17 U.S.C. § 106) and, therefore, cannot be disclosed without authorization. Counsel for AAFCO has informed the Department that it does not authorize disclosure of this information." Illinois law states that material adopted into law by reference must be made available for copying. John Dillard should have done a tad more research into the actual law.

I filed suit against the Illinois Department of Agriculture over this violation of law. My lawsuit was successful, and they ultimately provided me copies of the records adopted by reference in Illinois.

While doing research for this film about FDA regulating by their opinion, I came across extremely concerning information about John Dillard. He was mentioned in a 2015 article by this major industry lobbying group, AFIA (American Feed Industry Association). The article stated that John Dillard was AFIA's "outside legal counsel". 

Hold on...WHAT?!

AAFCO, aka a collection of public employees known as the "regulators", has the SAME legal counsel as AFIA (American Feed Industry Association), the "REGULATED"?

I couldn't believe my eyes. Could this be why FDA has been regulating the raw pet food sector based on an "opinion", instead of a law? Could this be why FDA is performing an investigation into DCM, against grain free pet foods? It can't be ignored that a major benefactor in both of these FDA actions would be members of AFIA (American Feed Industry Association), who have heavy interests in GRAIN based pet foods. 

I called John Dillard directly to confirm this information. 

Kohl: I was trying to confirm if you guy are

John interrupted, saying he is out on a run, and to call him back later. I said no. 

Kohl: Are you guys currently representing AFIA, for legal counsel?

John: My firm is, yes. 

Kohl: Ok. So you guys represent AAFCO, which are the regulators. And you represent the regulated industry as well? 

John: I see where you're going and I strongly disagree with your implication. 

Kohl: What, that you present the regulated industry as well as the regulators?

John then ended the call. 

I sat stunned, thinking about all the documents FDA refuses to provide to me through FOIA, and all the potential reasons why they would wish to restrict as many documents as possible from public view. When I went to an AAFCO meeting and paid the heavy entrance fee of $550 to view what was going on, it felt that AFIA (American Feed Industry Association) holds a deeply concerning influence over this private group of public officials. 

It can't be ignored that by FDA holding these same "official AAFCO" ingredients to the standard of the federal regulatory process, many of these ingredients may not be allowed to be used in pet food products distributed into interstate commerce. Various AAFCO ingredients violate federal law, but are allowed into pet food products due to a mix of FDA never promulgating an official regulation on the ingredient, as well as FDA conducting what they call "enforcement discretion"...aka allowing for the illegal act to occur. There appears to be a massive financial benefit for lobbying groups such as AFIA when it comes to how ingredients are developed in private at AAFCO, then "recognized" publicly at the federal level. Internal emails also show that Dave Edwards of FDA has communicated with and potentially worked behind the scenes with AFIA lobbying group employee Leah Wilkinson to lobby congress on certain regulatory issues, potentially concerning AAFCO continuing to play a role in developing material into their OP that FDA then "recognizes", all outside the confines of the federal administrative procedures act.

An hour or so after my call to John Dillard, he called back. He started off this second phone call by saying he is not "typically" rude over the phone, and he wanted to "offer an opportunity" for me "to avoid printing anything slanderous or defamatory." 

In response, I said, I don't have any intention to print "anything slanderous or defamatory." All I plan to print is the truth. 

-Kohl Harrington
Pet Schooled Director 


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