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Powerful Coalition Gains Exemption for Small Farmers

Russell Libby and Brian Snyder walked out of the Rayburn House Office Building on a brilliant spring day in April 2009 shaking their heads.

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The two were on Capitol Hill representing the interests of small farms as Congress drafted legislation to revamp the food safety system. Congressional staffers had just informed the pair that, in the version of the bill then under consideration, the same industrial-level regulations would apply to every food “facility” – whether a multimillion-dollar Cargill operation or a rural family’s jam-making enterprise.

 

Snyder and Libby said the plan sounded unrealistic for small farms.

But by the time the legislation passed, in late December 2010, the two men had found common ground with an unexpected and surprisingly powerful coalition: locavore consumers who savor food from local growers, tea party members fighting big government, and small farmers with a deep mistrust of the Food and Drug Administration, which will implement the new law.

Together, coalition members successfully pushed lawmakers to include an exemption for tens of thousands of small farms in the sweeping Food Safety Modernization Act (FSMA).

Yet in the polarizing year-and-a-half-long debate that preceded passage, Congress missed a chance to create a workable food safety plan for small farms. Instead, it opted for exemptions based on farm size and a loose definition of “local” that critics say leaves the country open to multistate outbreaks of disease.

The new food safety act expands the FDA’s authority to require food producers to evaluate hazards and write detailed safety plans. It also authorizes the agency to establish science-based standards for the harvesting and handling of raw fruits and vegetables.

The exemption for small farms, spelled out in the act’s Tester-Hagan Amendment, was based on the argument that implementing the new requirements would be too expensive and burdensome for small-scale growers. At the heart of the amendment, however, is the belief that food from small farms doesn’t make large numbers of people sick – an assertion not supported by scientific evidence.

The Tester-Hagan Amendment, sponsored by Democratic Sens. Jon Tester of Montana and Kay Hagan of North Carolina, defines small farms as those that average annual gross revenue of less than $500,000 over three years and that sell a majority of their products directly to consumers, restaurants or grocery stores within the same state as the farm or within 275 miles of it. Farms that meet this definition will be exempt from developing a detailed food safety plan, keeping extensive records, and complying with produce safety rules the FDA will finalize over the next two years.

“There’s no scientific basis for Tester,” said David Plunkett, senior staff attorney for the Center for Science in the Public Interest, one of the consumer advocacy groups that took part in the FSMA debate. “It’s an accommodation so that the bill would be able to make its way through the Senate and the Congress and get to the president’s desk.”

The measure does direct the FDA to study, for the first time, the incidence of foodborne illness in relation to the size of food producers and the operations they employ. Advocates for small, local farms hope that the findings, which are expected next year, bolster their contention that small-scale growers produce safer food, in part because fewer people handle it.

What’s more, they say, if an outbreak of illness does occur, it can be traced quickly because of the direct-sales relationship between small-scale producers and their customers.

But consumer advocates point out that exempted small farms can still sell almost half of what they produce to large distributors – food that can wind up reaching a lot of people.

“It’s a loophole. It’s a loophole that is going to come back and harm small producers in the long run,” said Bill Marler, a food safety advocate and lawyer who represents victims of foodborne illness. (Marler is the publisher of Food Safety News.)

Tainted Spinach

In one such case, spinach from a small farm that was sold through a distributor sickened at least 13 people in Washington and Oregon in 2008. Two of the victims developed hemolytic uremic syndrome, an infection that can cause life-threatening kidney failure.

The spinach was tainted with deadly E. coli O157:H7 bacteria. Health investigators eventually traced the source through the distributor, Organically Grown Company, based in Eugene, Ore., to Willie Green’s Organic Farm in Monroe, Wash. Willie Green’s sells a majority of its food directly to consumers and likely would qualify as exempt under the new law.

Health officials from Oregon and Washington who investigated the outbreak confirmed Willie Green’s as the source. But William E. Keene, senior epidemiologist at the Oregon Public Health Division, said the problems found weren’t any different from what he’s seen on other small farms. Small outbreaks happen often, he said, but most never get reported.

“We have very limited resources and other things come along,” Keene said. “People don’t have the time or the budget to do a gigantic investigation on everything. And even if we did, there’s no guarantee we would find anything.”

Since the outbreak, Willie Green’s has worked to pass an inspection of its food safety practices; owner Jeff Miller says food safety is a top priority on the 21-acre farm.

“[The outbreak] happened; you don’t want it to happen, but you do the best you can and improve and move forward,” Miller said.

Safety Sells

Small farms like Willie Green’s are implementing food safety plans not because the government requires them, but because they want access to large retail food markets. Buyers for those markets know that their customers want locally grown food, but the stores shy away from farms that lack tough safety standards. Also, in the event of an outbreak, farms with tough standards may lessen their liability – and that of the buyers – by showing their attention to food safety.

In the sprout house at Edrich Farms in Randallstown, Md., safety agreements with buyers mean that Amy Annable, the manager of sprout operations, spends at least 30 minutes each day and an additional hour each week on paperwork and testing to assure those buyers that her sprouts are safe. Even her seed supplier wants verification that she is testing its seeds before she sprouts them, so that they can share liability should the sprouted seeds make someone sick.

Annable’s knows that if her sprouts sicken anyone, it would kill her business. “An outbreak,” she said, “is my worst nightmare.”

Even though some in the industry have implemented contractual food safety plans with farm suppliers, consumer advocates say it’s still not enough.

“Is a system that relies only on voluntary and private contractual agreements comprehensive enough to ensure safer food? The answer is no,” said Sandra Eskin, director of the food safety campaign at the Pew Charitable Trusts. “Those things can be add-ons, but we need a floor of enforceable government regulations.”

Assessing Risk

Snyder, the director of the Pennsylvania Association for Sustainable Agriculture, who lobbied for small-farm interests during the debate over the FSMA, said the discussion over food safety on small farms should have focused on the ability to trace food back to its source, not the size of the farm.

The idea was part of a House amendment that also focused on risk. It fail
ed. The subsequent Senate debate was quickly dominated by the anti-government fervor brewing in the tea party and by the locavore belief that small farms equal safe food.

“Let’s face it: Dangerous foodborne outbreaks don’t start with family agriculture,” Tester said in a statement released by his office after he introduced his exemption amendment. “Food produced on that scale shouldn’t be subject to the same expensive federal regulations as some big factory that mass-produces food for the entire country.”

The large agriculture lobbies that originally supported FSMA switched sides once the amendment was added. They argued that an outbreak of any type hurts every farm, regardless of size, by scaring off customers.

To make sure the bill would pass, consumer groups grudgingly accepted the amendment, but only after the “local” food distribution radius was trimmed from 400 to 275 miles and lawmakers included a provision that any farm linked to an outbreak could lose its exemption.

——————

Madhu Rajaraman, Maggie Clark and Andy Marso wrote this story while Carnegie-Knight News fellows from Maryland. The story was part of the “How Safe is Your Food?” project of News21, a program of the Carnegie Corporation of New York and the John S. and James L. Knight Foundation to foster in-depth, interactive and innovative investigative journalism at journalism schools across the country. News21 is part of the Carnegie-Knight Initiative on the Future of Journalism Education. It is headquartered at Arizona State University’s Walter Cronkite School of Journalism and Mass Communication. Republished with permission.

© Food Safety News
  • Steve

    Once again our Junior Reporters demonstrate they have been spoon fed the corporate ag line on “exemptions” and have missed the mark. This article first came out in early fall to factual criticism over the lack of a risk analysis inherent in the industrialized food system that is really exempting Big Food from meaningful scrutiny. One wonders why FSN continues to recycle/republish such loaded misinformation…
    The fact is the Tester-Hagan amendment and other provisions in the Food Safety Modernization Act (FSMA) offer an EQUIVALENT scale-appropriate scrutiny for identity-preserved, short supply chain farm foods in the marketplace. Other FSMA amendments protect farms from being classified as highly regulated “facilities” just for practicing standard field harvesting operations such as cutting and trimming produce — which was surreptitiously written into the Bioterrorism Act of 2002 after the events of 911.
    And, fulfilling a food safety mandate by taking a practical preventative-education approach, the Stabenow Amendment created an all-important fund for training farmers in appropriate food safety practices. Inexplicably the program set up to fund these preventative trainings was just obliterated by congressional hatchetmen in the latest agricultural appropriations process.

  • Steve,
    Thanks for pointing out a couple of the general problems in this article. Let me amplify part of what you said.
    As you know, it isn’t the statutory provisions in the 2002 Bioterrorism Act which are causing the problem. Rather, it was the FDA’s rulemaking that came out of that act which created the problems.
    The fact that the Bioterrorism Act clearly exempts farms from registration didn’t stop the FDA from using rulemaking to narrow the exemption by writing narrow and broad definitions as needed. As if that weren’t enough, it clearly overlapped the definitions of “harvesting” and “manufacturing/processing.”
    Instead of sticking with the Federal Food, Drug and Cosmetic Act’s (FFDCA) statutory definition, the FDA wrote a broader one. The FFDCA definition [21USC321(gg)] is “The term “processed food” means any food other than a raw agricultural commodity and includes any raw agricultural commodity that has been subject to processing, such as canning, cooking, freezing, dehydration, or milling.”
    During its rulemaking for the Registration of Food Facilities portion of the 2002 Bioterrorism Act, the FDA expanded the definition to read, “Manufacturing/processing means making food from one or more ingredients, or synthesizing, preparing, treating, modifying or manipulating food, including food crops or ingredients. Examples of manufacturing/processing activities are cutting, peeling, trimming, washing, waxing, eviscerating, rendering, cooking, baking, freezing, cooling, pasteurizing, homogenizing, mixing, formulating, bottling, milling, grinding, extracting juice, distilling, labeling, or packaging” [21CFR1.227(b)(6)].
    Because this definition is so broad, it clearly overlaps “harvesting,” one of the activities of farms. 21CFR1.227(b)(3) states, “Washing, trimming of outer leaves of, and cooling produce are considered part of harvesting” which is part of farming. Please note that “washing” and “cooling” are in both definitions! As a result, I (and 2 members of Sen. Burr’s staff) had a long conversation with one of the authors of the FDA’s definition. When I pointed out that the regulation said the only way a farmer could clearly offer salad mix without becoming “processor” was to grow it as a seed mix and harvest it together, she said, “I’m not so certain about that.”
    As you and I know, Steve, it is exactly this kind of confusion that all farmers—large and small—can’t stand. And lots of that kind of rulemaking is what the FSMA mandates.

  • Laturb

    Thanks for the clarification, Steve.

  • After having read a half a dozen of the articles in this series, I find it truly depressing that News 21 is part of the larger Carnegie-Knight Initiative on the Future of Journalism Education. If this is the future of journalism, then we are all in trouble because, to be strong, America must have high quality press coverage.
    This isn’t a “new form of in-depth and investigative reporting.” It is the same-old, shallow, biased journalism that is increasingly dominating America’s newsrooms. The writers are clearly in the thrall of the supporters of the FSMA. The Make Our Food Safe Coalition could have written this article.
    Did the authors hear from those of us who convinced Sen. Tester to offer his amendments? Yes, at least, one of did. I was interviewed by Andy Marso. And early on it was clear to me that I wasn’t giving him what he wanted. He didn’t want to talk with an opponent of the FSMA who had carefully analyzed the pertinent parts of the bill and gave him facts and figures and cited sources. I also gave him names of the key people and organizations whose efforts led to the Tester-Hagan amendments. I offered to send him all sorts of info supporting our positions on various issues. I offered him my extensive library on the issues in the FSMA.
    Andy Marso had no interest in seeing any of it.
    If anyone wants to discuss details of the News21 op-ed, please write me at healthyfoodcoaltion@gmail.com and we can set up a time to discuss it.

  • Maxwell J.

    Seems to me if the Small Farm Lobby hadn’t insisted on being exempted from food safety standards we wouldn’t be having this ridiculous apologetic discussion. Claiming special handicap status brings its own special challenges. Do I recall incorrectly the Small Farm Lobby swearing to us they could handle this flawlessly without any help from the experts? I think not. There is just no pleasing the Small Farm Lobby. We shall see how this works out as people become ill from eating farmers market fare. The Small Farm Lobby may be powerful but even they cannot suspend reality to suit themselves.

  • Steve

    Maxwell — good luck with getting your depictions of a “small farm lobby” to stick. Quite ludicrous, actually, in the face of what Big Ag spends everyday to put their food on our plate — Witness Biotech’s documented lobby expenditures of $572 Million over the last decade…
    For years we’ve seen how people have regularly become ill eating industrial food. Thankfully, the Good Food Movement is gaining prominence all around the country — and eaters finally have a choice over their daily food supply…

  • Steve,
    Thanks for pointing out a couple of the general problems in this article. Let me amplify part of what you said.
    As you know, it isn’t the statutory provisions in the 2002 Bioterrorism Act which are causing the problem. Rather, it was the FDA’s rulemaking that came out of that act which created the problems.
    The fact that the Bioterrorism Act clearly exempts farms from registration didn’t stop the FDA from using rulemaking to narrow the exemption by writing narrow and broad definitions as needed. As if that weren’t enough, it clearly overlapped the definitions of “harvesting” and “manufacturing/processing.”
    Instead of sticking with the Federal Food, Drug and Cosmetic Act’s (FFDCA) statutory definition, the FDA wrote a broader one. The FFDCA definition [21USC321(gg)] is “The term “processed food” means any food other than a raw agricultural commodity and includes any raw agricultural commodity that has been subject to processing, such as canning, cooking, freezing, dehydration, or milling.”
    During its rulemaking for the Registration of Food Facilities portion of the 2002 Bioterrorism Act, the FDA expanded the definition to read, “Manufacturing/processing means making food from one or more ingredients, or synthesizing, preparing, treating, modifying or manipulating food, including food crops or ingredients. Examples of manufacturing/processing activities are cutting, peeling, trimming, washing, waxing, eviscerating, rendering, cooking, baking, freezing, cooling, pasteurizing, homogenizing, mixing, formulating, bottling, milling, grinding, extracting juice, distilling, labeling, or packaging” [21CFR1.227(b)(6)].
    Because this definition is so broad, it clearly overlaps “harvesting,” one of the activities of farms. 21CFR1.227(b)(3) states, “Washing, trimming of outer leaves of, and cooling produce are considered part of harvesting” which is part of farming. Please note that “washing” and “cooling” are in both definitions! As a result, I (and 2 members of Sen. Burr’s staff) had a long conversation with one of the authors of the FDA’s definition. When I pointed out that the regulation said the only way a farmer could clearly offer salad mix without becoming “processor” was to grow it as a seed mix and harvest it together, she said, “I’m not so certain about that.”
    As you and I know, Steve, it is exactly this kind of confusion that all farmers—large and small—can’t stand. And lots of that kind of rulemaking is what the FSMA mandates.

  • After having read a half a dozen of the articles in this series, I find it truly depressing that News 21 is part of the larger Carnegie-Knight Initiative on the Future of Journalism Education. If this is the future of journalism, then we are all in trouble because, to be strong, America must have high quality press coverage.
    This isn’t a “new form of in-depth and investigative reporting.” It is the same-old, shallow, biased journalism that is increasingly dominating America’s newsrooms. The writers are clearly in the thrall of the supporters of the FSMA. The Make Our Food Safe Coalition could have written this article.
    Did the authors hear from those of us who convinced Sen. Tester to offer his amendments? Yes, at least, one of did. I was interviewed by Andy Marso. And early on it was clear to me that I wasn’t giving him what he wanted. He didn’t want to talk with an opponent of the FSMA who had carefully analyzed the pertinent parts of the bill and gave him facts and figures and cited sources. I also gave him names of the key people and organizations whose efforts led to the Tester-Hagan amendments. I offered to send him all sorts of info supporting our positions on various issues. I offered him my extensive library on the issues in the FSMA.
    Andy Marso had no interest in seeing any of it.
    If anyone wants to discuss details of the News21 op-ed, please write me at healthyfoodcoaltion@gmail.com and we can set up a time to discuss it.