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How to Fix S.510: A Sustainable Ag Perspective

Part one of a three part discussion with Harry Hamil, founder of North Carolina’s Black Mountain Farmers Market, on how he would change the Senate food safety bill to lessen the impact on small and sustainable agriculture

Harry Hamil has worked to revive local, healthy food for people in western North Carolina since 1995. He and his wife, Elaine, work full time growing, distributing and retailing locally grown food at the Black Mountain Farmers Market, a year-round market the couple founded in 2003.

Since the passage of the House Food Safety Enhancement Act (H.R. 2749) last July, Hamil–who has a rare affinity for detail and a keen understanding of the policy making process–has focused full time on the pending FDA Food Safety Modernization Act (S.510) in the Senate, advocating for changes that would help lessen what he foresees as a detriment to the burgeoning small and sustainable agriculture movement.

Food Safety News had a chance to discuss, in detail, some changes Hamil would like to see made to the food safety bill before it clears the Senate.

Part I: Regulation should be appropriately scaled

Hamil, like many small and sustainable agriculture advocates, sees S.510, as it’s currently written, as “one-size-fits-all” regulation with the potential to force small growers and producers out of the business.  

“They’re calling for increased regulation because of globalization,” says Hamil. “We aren’t globalizing, folks. We’re producing it locally–local health food for local people. The level of regulation that applies to us clearly is different.” Hamil would like to see the regulations in the bill tiered so that they are more appropriately scaled.

Hamil points to the U.S. Food and Drug Administration’s (FDA’s) new egg rule, finalized last summer, to help minimize Salmonella Enteritidis, as an example of of the kind of tiered regulation that could be applied to the rest of the food industry.

“The egg rule says very clearly that the rule shall apply to egg producers with greater than 3,000 layers,” says Hamil, who explains that the rule is tiered because the smaller producers, of which there are few, just don’t have the same impact. “Federal regulation needs to focus on those food production enterprises with the potential to distribute products to large numbers of people rather than those distributing to small numbers of customers.”

Hamil advocates for a tiered approach based on annual gross profit. He’d like to see the language in S.510 amended so that sections 418 and 419 of the bill–on hazard analysis and risk-based controls, and produce safety–would only apply to entities that are above a certain threshold, to be determined by the FDA.

The House version of the food safety legislation contains some exemptions for farmers who sell directly to consumers, restaurants, or grocery stores–but according to Hamil it’s not about the small producers being exempt. “I’m not arguing in favor of exemption. What I’m simply saying is that there needs to be a tiered approach to it.”

“The word exemption gives the impression that you’re unregulated,” adds Hamil. “The reality is, we’re not unregulated! There are plenty of regulations that apply already to what we are doing.”

Plus, Hamil doesn’t buy into the notion that there are exemptions for direct-sale farmers in the House bill. 

“On direct sales you don’t have to keep up on traceback, but no retail person has to keep up on traceback on the direction to the customer…well in direct sales there is no other direction.” To say that small farmers selling directly to consumers are exempt from the trace back provisions is, as Hamil puts it “correct, but also grotesquely misleading.”

Though Hamil is not advocating for across the board exemptions for small and sustainable growers and producers, he doesn’t hide the fact that he believes they pose a far lesser food safety risk.

“In most of the recent outbreaks of foodborne illness, the main source of the problem was large centralized processing and distribution and its retail distribution network,” says Hamil.  “The problems have not been with growing and harvesting nor small scale processing and distribution.”

See Food Safety News on Monday and Tuesday for Parts II and III of the discussion.

© Food Safety News
  • Amy Philpott

    Regarding the issue of tiered food safety standards: I can empathize with small farmers – my dad is one – but until the pathogens discern between large and small farms (or, using Mr. Hamil’s measurement, large and small gross profits), the standards should not. Pathogens do not select as their carriers animals or bodies of water that ONLY cross over large farms.
    Furthermore, how on earth can it be okay to sicken (or worse) a “small number of consumers” as is implied in Mr. Hamil’s quote: “Federal regulation needs to focus on those food production enterprises with the potential to distribute products to large numbers of people rather than those distributing to small numbers of customers.”
    I’m under no illusion that the food industry can eliminate contamination from food borne pathogens. It would be arrogant to think that we humans can completely control these elements of nature. However, it can and should be expected that a company of any size will do what is known to reduce the risk of contamination.

  • hhamil

    At first, when I read your comment, Ms. Philpott, I believed I hadn’t made myself. Because I regarded your comments as very serious, I’ve spent over 3 hours working on a response. All along, as a result of your comment that your Dad is a small farmer, I wondered if you might be the daughter of Tom Philpott, the Food Editor at “Grist;” so I called and asked but you weren’t so I did a web search and found an Amy Philpott who according to “The Packer” newspaper which reported on 2-13-09, “Philpott, vice president of communications for United Fresh Produce Association, is leaving the group after nearly five years to take a position with Watson & Mulhern, a public relations agency specializing in crisis communications and issue management for the food and agricultural industries.” Is that you? It would make sense because your argument is EXACTLY the one that industrial ag advances.
    So, despite the fact that few people will read my slow response, here it is almost exactly as I wrote it before I learned who you probably are.
    I agree that “Pathogens do not select as their carriers animals or bodies of water that ONLY cross over large farms.” It is also clear that pathogens are NOT spread evenly everywhere and that actions of the grower (or processor or anyone else in the chain between growing and eating the food) can reduce but, as you acknowledged, not always eliminate them.
    If you go to a CAFO and check for E. coli. O157:H7, you will certainly find it. If you go to a pasture raised beef producer that raises the cattle from birth to slaughter and started with breeding stock that did not have any O157:H7, there is almost no chance you will find any. This legislation and the current regulations treat them the same.
    Also, we know that the pH in gut of cattle in CAFOs is fairly acid (which O157:H7 needs and supports its multiplying) versus the neutral gut of 100% grass fed cattle (in which O157:H7 has a hard time even surviving). Should legislation treat them the same?
    We know that the longer the supply chain or the greater the processing, the greater the risk to the consumer. So, don’t the regulations for long supply chains and greater processing need to be greater?
    Tiered regulation says make the regulation and the level of government performing the regulation appropriate to the risk. If I have never sprayed a pesticide on my produce, why should I have to test for pesticide residue?
    Those who call for uniform regulation don’t seem to understand the first step in any HACCP is Hazard Analysis. That’s what tiered regulation is based upon. Small, sustainable, multi-species, local market oriented agriculture inherently has less risk that larger, monoculture, global oriented agriculture does. In fact, on 4-9-09 as reported in the New York Times, Dr. David Acheson, associate commissioner for foods at the Food and Drug Administration said, “The system needs to be modernized to address the challenges and changes of the globalization of the food supply and rapid distribution chains.” (http://www.nytimes.com/2009/04/10/health/policy/10food.html)
    I, also, agree Ms. Philpott that “it can and should be expected that a company of any size will do what is known to reduce the risk of contamination.” But, the problem isn’t with those of us growing local, healthy food for local people. The problem is with industrial ag. We do all sorts of things (e.g., refusing to use dangerous chemicals in the first place and multi-species, intensive grazing) that industrial ag refuses to do. And we aren’t the ones petitioning the EPA to permit the use of the known carcinogen, methyl iodide. Industrial ag is. See http://www.panna.org/fumigants/mei.
    Finally, I agree that the paragraph containing my words, “Federal regulation needs to focus on those food production enterprises with the potential to distribute products to large numbers of people rather than those distributing to small numbers of customers” could be misconstrued as implying that I believe it is “okay to sicken (or worse) a ‘small number of consumers.’” NOTHING COULD BE FURTHER FROM THE TRUTH. I said the words in the context of a discussion of the regulation of eggs. Eggs are regulated under a truly federal system with the FDA focusing on large, usually interstate producers for only one pathogen—salmonella enteritidis. The states take care of EVERYTHING ELSE and, as I recall here in NC, the NC regulations change at 30 dozen sold per week. For example, those selling less than 30 dozen per week can reuse egg cartons within clear restrictions and do not have to grade their eggs.
    Furthermore, because the supply chain is so short when growing local food for local people, if something goes wrong, then the authorities will know where to look. Any problem can be found and rectified quickly. And, if someone is hurt, there is no way to hide. There is also personal accountability not just financial accountability. Most of us can have a lifetime’s work wiped out by one mistake or, even, one bad outcome beyond our control. That is a huge incentive to be careful.

  • Harry Hamil

    At first, when I read your comment, Ms. Philpott, I believed I hadn’t made myself. Because I regarded your comments as very serious, I’ve spent over 3 hours working on a response. All along, as a result of your comment that your Dad is a small farmer, I wondered if you might be the daughter of Tom Philpott, the Food Editor at “Grist;” so I called and asked but you weren’t so I did a web search and found an Amy Philpott who according to “The Packer” newspaper which reported on 2-13-09, “Philpott, vice president of communications for United Fresh Produce Association, is leaving the group after nearly five years to take a position with Watson & Mulhern, a public relations agency specializing in crisis communications and issue management for the food and agricultural industries.” Is that you? It would make sense because your argument is EXACTLY the one that industrial ag advances.
    So, despite the fact that few people will read my slow response, here it is almost exactly as I wrote it before I learned who you probably are.
    I agree that “Pathogens do not select as their carriers animals or bodies of water that ONLY cross over large farms.” It is also clear that pathogens are NOT spread evenly everywhere and that actions of the grower (or processor or anyone else in the chain between growing and eating the food) can reduce but, as you acknowledged, not always eliminate them.
    If you go to a CAFO and check for E. coli. O157:H7, you will certainly find it. If you go to a pasture raised beef producer that raises the cattle from birth to slaughter and started with breeding stock that did not have any O157:H7, there is almost no chance you will find any. This legislation and the current regulations treat them the same.
    Also, we know that the pH in gut of cattle in CAFOs is fairly acid (which O157:H7 needs and supports its multiplying) versus the neutral gut of 100% grass fed cattle (in which O157:H7 has a hard time even surviving). Should legislation treat them the same?
    We know that the longer the supply chain or the greater the processing, the greater the risk to the consumer. So, don’t the regulations for long supply chains and greater processing need to be greater?
    Tiered regulation says make the regulation and the level of government performing the regulation appropriate to the risk. If I have never sprayed a pesticide on my produce, why should I have to test for pesticide residue?
    Those who call for uniform regulation don’t seem to understand the first step in any HACCP is Hazard Analysis. That’s what tiered regulation is based upon. Small, sustainable, multi-species, local market oriented agriculture inherently has less risk that larger, monoculture, global oriented agriculture does. In fact, on 4-9-09 as reported in the New York Times, Dr. David Acheson, associate commissioner for foods at the Food and Drug Administration said, “The system needs to be modernized to address the challenges and changes of the globalization of the food supply and rapid distribution chains.” (http://www.nytimes.com/2009/04/10/health/policy/10food.html)
    I, also, agree Ms. Philpott that “it can and should be expected that a company of any size will do what is known to reduce the risk of contamination.” But, the problem isn’t with those of us growing local, healthy food for local people. The problem is with industrial ag. We do all sorts of things (e.g., refusing to use dangerous chemicals in the first place and multi-species, intensive grazing) that industrial ag refuses to do. And we aren’t the ones petitioning the EPA to permit the use of the known carcinogen, methyl iodide. Industrial ag is. See http://www.panna.org/fumigants/mei.
    Finally, I agree that the paragraph containing my words, “Federal regulation needs to focus on those food production enterprises with the potential to distribute products to large numbers of people rather than those distributing to small numbers of customers” could be misconstrued as implying that I believe it is “okay to sicken (or worse) a ‘small number of consumers.’” NOTHING COULD BE FURTHER FROM THE TRUTH. I said the words in the context of a discussion of the regulation of eggs. Eggs are regulated under a truly federal system with the FDA focusing on large, usually interstate producers for only one pathogen—salmonella enteritidis. The states take care of EVERYTHING ELSE and, as I recall here in NC, the NC regulations change at 30 dozen sold per week. For example, those selling less than 30 dozen per week can reuse egg cartons within clear restrictions and do not have to grade their eggs.
    Furthermore, because the supply chain is so short when growing local food for local people, if something goes wrong, then the authorities will know where to look. Any problem can be found and rectified quickly. And, if someone is hurt, there is no way to hide. There is also personal accountability not just financial accountability. Most of us can have a lifetime’s work wiped out by one mistake or, even, one bad outcome beyond our control. That is a huge incentive to be careful.

  • Dan Fokine

    haha, That’s great Harry! Zinged her good. 😉