On April 14, 2010, Senator Jon Tester (D-MT) announced that he is introducing two amendments to the FDA Food Safety Modernization Act, S. 510. The aim of the amendments is to ease the burden that small farmers believe the bill will impose on them if passed. The amendments, if adopted, will exclude facilities with adjusted gross incomes of less than $500,000 from certain safety plan and traceback requirements, and will exclude facilities that primarily sell directly to consumers, hotels, restaurants, or institutions from certain produce safety requirements.
Senate Bill 510, since introduced, has been controversial amongst many in the local food movement. Many of the bill’s vocal opponents have stated that S. 510’s new Hazard Analysis and Risk-Based Preventive Controls, traceback, and produce safety requirements, if passed, will result in a crushing blow to the sustainability of small farms. Some extremist websites have even gone as far as to publish headlines claiming that “Senate Bill S. 510 Makes it illegal to Grow, Share, Trade or Sell Homegrown Food, or Even to Produce Your Own Food.” For the most part, however, it appears that a good number of small farmers will support S. 510, as long as it includes the Tester amendments. Whether consumers should support the amendments is a whole different story.
The first of Senator Tester’s amendments excludes facilities that have an average annual adjusted gross income for the previous three-year period of less than $500,000 from federal Hazard Analysis and Risk-Based Preventive Controls (Section 418) regulations, deferring to state law. From the consumer’s standpoint, this is perhaps the least worrisome of the three proposed amendments. While all farms should be required to develop and maintain preventive controls, a one size fits all approach does not seem appropriate. Add to that the fact that Section 418 does not limit the FDA’s authority to issue category-specific HACCP plans (See pg. 137, line 3), and it would seem that, even if small farms are exempt, the federal government will still be able to require safety plans for particularly hazardous categories of food, regardless of the facility’s income.
Even though Senator Tester’s amendment to Section 418 appears to be the least worrisome of his proposed actions, it is not without its faults. The primary risk associated with allowing Hazard Analysis and Risk-Based Preventive Controls regulations to be dictated by state law is the piecemeal basis on which they will be assembled. Laws can vary significantly from state to state; this is especially dangerous when coupled with the fact that Senator Tester’s amendment to Section 418 mentions nothing about food products that are shipped across state lines. By adopting Senator Testor’s amendments, the federal government would essentially forgo an opportunity to adopt a national standard for Hazard Analysis and Risk-Based Preventive Controls. The end result is that consumers will walk into their local grocery stores and not know whether the produce that they are purchasing came from a state with strict preventive controls requirements or not. Perhaps some might see this as an argument in favor of shopping at farmer’s markets, but it is irresponsible to ignore the fact that the majority of this nation’s citizens purchase their food from large supermarkets and deserve to be assured of the safety of that food.
The second provision of Senator Tester’s amendments limits recordkeeping requirements for facilities that have an average annual adjusted gross income for the previous three-year period of less than $500,000. Specifically, the amendment requires only that records be kept for transactions with a qualifying facility’s immediate suppliers and immediate subsequent recipients. This amendment would result in an enormous setback in the push for national traceability requirements. As previously discussed on Food Safety News, the $500,000 cutoff would exempt nearly 95 percent of all domestic farms from S. 510’s stricter traceability standards, virtually eliminating the effectiveness of the new requirements. Unfortunately, as many in the food safety industry well know, delays in traceback efforts can often lead to many unfortunate illnesses and deaths during foodborne illness outbreaks.
The final provision of Senator Tester’s amendments excludes facilities from S. 510’s produce safety requirements if the qualifying facility’s annual value of sales of food directly to consumers, hotels, restaurants, or institutions exceeds the annual value of sales of food to all other buyers. The specific provision which this amendment addresses, Section 419, requires proposed rulemaking “to establish science-based minimum standards for the safe production and harvesting of those types of fruits and vegetables that are raw agricultural commodities for which the Secretary has determined that such standards minimize the risk of serious adverse health consequences or death.” This provision is one of the most straightforward measures in the entire Senate bill; why small farmers should be exempt from updated produce safety procedures is beyond me.
The primary argument that I have thus far seen raised against Section 419 is that the public hearing requirements (“not fewer than three public meetings in diverse geographical areas of the United States”) are too limited and may occur during harvest season. This argument fails to acknowledge the fact that the federal government is required, under the Administrative Procedures Act (APA), to allow for the “submission of written data, views, or arguments.” (See U.S.C. § 553(c)). Oral presentations, such as those invited by the public meetings, are not required under the APA and are offered as a mere courtesy. Thus, if a rule is proposed pursuant to Section 419, any member of the public will be allowed to submit written comments at his or her own convenience.
While small farmers should be legitimately concerned with some of the one size fits all proposals contained in Senate Bill 510, changes to the bill should not come at the expense of consumer safety. Senator Tester’s amendments, therefore, need more thought and retooling before the Senate should consider incorporating them into the final bill. Additionally, the Senate should be quite weary of the commonly held misconception that small farms are inherently safe. To quote Senator Tester himself, “Let’s face it, dangerous food-borne outbreaks don’t start with family agriculture.” Small farms are not inherently safe simply by virtue of their diminutive size. Case in point was the 2006 E. coli O157:H7 spinach outbreak. That outbreak, which resulted in 205 illnesses and 3 deaths and spanned 26 states, was caused by spinach that was grown in one field on a 50-acre farm in San Benito County, California. The danger of such an incident happening again is very real, and so it remains that exempting small farms from risk prevention, traceability, and produce safety requirements is not the answer.
I say all of this as an ardent supporter of the local food movement. Local growers must never lose sight of the fact that their responsibilities are to their consumers. Those consumers deserve to be assured that all of the food that they purchase is held to a stringent national safety and traceability standard.© Food Safety News