Few Americans are aware that a federal agency, USDA’s Food and Nutrition Service (FNS), makes decisions that often result in the permanent disqualification of grocers, supermarkets, and convenience stores from SNAP, formerly know as the federal food stamp program, based on information and records never provided to stores or their attorneys. It is mind-boggling for many to learn that a federal agency is still making administrative determinations that might result in the permanent loss of a store’s SNAP license in a proceeding that is more akin to a Star Chamber, than an open, transparent, and equitable federal administrative process. If SNAP proceedings involved matters of national security, FNS might have a leg to stand on. However, SNAP retailer administrative proceedings do not involve allegations of terrorism or other high level national security concerns. Rather, SNAP charge letters issued by FNS typically involve relatively minor issues involving the alleged exchange of paper towels, foam plates, plastic cutlery for SNAP benefits. Even more serious violations like SNAP trafficking do not warrant a federal agency making decisions that often result in the permanent loss of a store’s SNAP license without providing its investigatory files to owners or their attorneys.
There is little dispute amongst legal scholars and those who represent retailers that SNAP administrative proceedings should not be one-sided proceedings decided by FNS officials under a cloak of darkness. This concerning issue has drawn the attention of Congressman Adriano Espaillat. During June 2023, Rep. Espaillat, who represents portions of Harlem and The Bronx, introduced House Bill 3903, entitled “Keeping SNAP in our Communities Act of 2023.” This bill, if enacted, would go a long way towards leveling the administrative playing field, which is sharply tilted against SNAP retailers.
Congressman Espaillat’s bill proposes to amend the Food and Nutrition Act of 2008 to require FNS to:
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- Notify all owners, officers, and managers of SNAP retailers charged with program violations. Currently, FNS only notifies a single owner of record. This often results, not surprisingly, in many owners and officials not being aware that their store is the subject of a federal adverse action that often results in its permanent disqualification from SNAP. Note also that a permanent disqualification of a store from SNAP may also prevent those owners from being SNAP-authorized at any other store for the rest of their lives;
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- Provide all records reviewed or relied upon by FNS when issuing Charge Letters to SNAP retailers;
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- Provide SNAP retailers with additional time (30 days instead of 10) to respond to FNS Charge Letters;
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- Permit SNAP retailers to immediately seek judicial review of adverse FNS decisions;
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- Issue administrative decisions within 60 days after submission of a store’s written response. Currently, FNS Administrative Review Officers (AROs) are not subject to any time requirements governing issuance of Final Agency Decisions. AROs frequently take more than four months to issue determinations, causing extreme financial harm to retailers who have already lost their SNAP license;
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- Conduct a study regarding the agency’s permanent disqualification determinations, including the race and ethnicity of owners of disqualified retailers and report the results thereof to Congress. Minority and/or immigrant retailers, many of whom are Muslim and from the Middle East, represent nearly all of the stores that are disqualified from SNAP by FNS.
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- Conduct a comprehensive analysis regarding the reliability of its Anti-Fraud Locator Using Electronic Benefits Transfer System (ALERT) and report the results to Congress.
This important legislation should be given serious consideration by Congress. FNS’s administrative process has profound impacts on SNAP retailers and beneficiaries. FNS disqualifies more than 90% of retailers it charges with trafficking in SNAP benefits. In impoverished areas with a high percentage of residents on nutrition benefits, this often results in the closure of the store. That, in turn, often expands the size of food deserts and reduces the number of stores in impoverished areas where SNAP beneficiaries can redeem their benefits.
Whether Congress will enact “Keeping SNAP in our Communities Act of 2023” is far from certain, especially given that a Farm Bill still needs to be passed. Note, however, that if Congress fails to enact legislation that requires FNS to treat SNAP retailers fairly by making its administrative processes equitable and transparent, stores will continue to be subjected to adverse impacts for undisclosed reasons. In that event, retail food stores owned by immigrants and minorities, especially those from the Middle East, will continue to be bear the brunt of FNS’s discriminatory actions.
Congress should also enact this important legislation because USDA Secretary Tom Vilsack, USDA’s Equity Commission, and USDA Deputy Under Secretary Stacy Dean (who oversees FNS) do not appear to be remotely inclined to address the agency’s inequitable administrative system, which has clear disparate impacts against minority and immigrant SNAP retailers. It is clear that USDA has little interest in eradicating discrimination against Muslim grocers and convenience store owners who provide food for the more than 41 million Americans who are SNAP beneficiaries. Despite Secretary Vilsack’s promises to finally end discrimination in USDA’s programs and despite SNAP comprising more than 80% of USDA’s budget, USDA’s Equity Commission does not have a single retailer member and has devoted zero resources towards remedying discrimination in what is, by far, USDA’s largest program. Repeated requests to the Equity Commission to investigate discrimination against SNAP retailers and to create a SNAP subcommittee have been ignored. Discrimination in the SNAP program should have ended long ago. Since USDA, FNS, and the Equity Commission refuse to do anything, Congress needs to step in and pass Congressman Espaillat’s bill. Finally, the Biden Administration would be well-advised to support enactment because USDA’s callous disregard for the rights of Muslim retailers could have impacts on the 2024 presidential election given the substantial number of aggrieved SNAP retailers from the Middle East who reside in Michigan and Minnesota.
