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Apples Are Covered, Kale Is Exempt: A Look at the Proposed Produce Safety Rule

Last week Food Safety News published an article noting that nearly 80 percent of produce growers will be exempt from the landmark proposed rule that would for the first time require national preventative standards for the produce industry. We got feedback from a handful of readers who took issue with our headline because, while it is true that about 8 in 10 growers are exempt from the new rule, the vast majority of produce Americans consume would be covered by the measure.

Most stakeholders agree the proposal is a huge step toward building a more preventive food safety system. The rule focuses on five areas: agricultural water, farm worker hygiene, manure and other additions to the soil, animals in growing areas and equipment, tools, and buildings (see here for an overview of the rule).

So what exactly is covered and what’s not?

In its economic impact study, the U.S. Food and Drug Administration estimated that 40,496 out of 190,911 total farms, or around 20 percent, will be covered by the proposed rule. FDA says 90 percent of produce acreage grown and consumed by Americans would either be covered by the rule or be exempt because the product is consumed cooked or sent to food processing plants “designed to address biological hazards associated with produce.”

The remaining 10 percent of acreage presumably comes from farms that would be exempt from the rule because they make less than $500,000 annually and sell more than half their produce directly to consumers (who could be located anywhere) or to restaurants or stores located within 275 miles or within state lines, or they may be exempt because they make less than $25,000 annually. (The agency has a helpful flow chart to figure out which farms are covered and which are not.)

According to FDA’s analysis, there are around 3.1 million illnesses each year that are attributable to produce, which, the agency estimates, means the total potential benefit of eliminating all of these illnesses is somewhere in the neighborhood of $1.88 billion. FDA estimates the proposed rule covers about $1.61 billion of this estimate, indicating that the agency believes the vast majority of the farms linked to known illnesses would be covered by the measure. (Of course, the rule is not expected to eliminate all illnesses caused by contaminated produce. The agency thinks if the rule is implemented effectively it could reduce these illnesses by 65 percent, eliminating 1.75 million illnesses, which would save $1.04 billion annually.)

It’s not clear exactly what percent of total produce likely to be consumed raw is covered. When asked for estimates on exactly what portion FSMA would cover, neither United Fresh nor the Produce Marketing Association, the two industry associations representing the vast majority of the produce market, were able to come up with numbers.

What’s in, What’s out

As far as produce that is commonly cooked before consumption, and therefore exempt from the rule, the FDA proposes an exhaustive list that includes the following: arrowhead, arrowroot, artichokes, asparagus, beets, black-eyed peas, bok choy, brussels sprouts, chick-peas, collard greens, crabapples, cranberries, eggplant, figs, ginger root, kale, kidney beans, lentils, lima beans, okra, parsnips, peanuts, pinto beans, plantains, potatoes, pumpkin, rhubarb, rutabaga, sugarbeet, sweet corn, sweet potatoes, taro, turnips, water chestnuts, winter squash (acorn and butternut squash) and yams.

“Because these listed fruits and vegetables are almost always consumed only after being cooked, which is a kill-step that adequately reduces the presence of microorganisms of public health significance, we propose that these listed produce be excluded from the requirements of this rule,” reads the proposal.

FDA is seeking comment on these exclusions. It turns out that it is tricky to draw the line between produce that is generally cooked and generally consumed raw. Take bok choy, for example. The FDA says that while it has concluded the leafy green is rarely consumed raw, the agency is unsure whether the common cooking method (stir fry) is an adequate kill-step for disease-causing bacteria.

The proposed rule also provides a list of those produce items that are covered by the rule (but it’s not an exhaustive list). The rule covers the following common produce items: almonds, apples, apricots, avocados, bananas, blackberries, blueberries, broccoli, cabbage, cantaloupe, carrots, cauliflower, celery, cherries, citrus (such as clementine, grapefruit, lemons, limes, mandarin, oranges, tangerines), cucumbers, garlic, grapes, green beans, guava, herbs (such as basil, chives, cilantro, mint, oregano, and parsley), honeydew, kiwifruit, lettuce, mangos, mushrooms, nectarine, onions, papaya, passion fruit, peaches, pears, peas, peppers (such as bell and hot), pineapple, plums, radish, raspberries, scallions, snow peas, spinach, sprouts (such as alfalfa and mung bean), strawberries, summer squash (such as patty pan, yellow and zucchini), tomatoes, walnuts, watercress and watermelon.

Some commodity groups are already expressing concerns about being included under the rule. Washington state tree fruit interests, for instance, said they were disappointed that tree fruit crops were lumped into the same category as ground crops like lettuce and cantaloupe, which have been linked to recent outbreaks.

“There are a lot of technical issues involving water at the farm that FDA is concerned about,” Chris Schlect, president of the Northwest Horticultural Council of Yakima told the Yakima Herald-Republic. “They are focused on ground crops, but chose not to separate out high- and low-risk commodities and exempt things like apples. We are caught up in having to deal with it.”

Both United Fresh and the Produce Marketing Association are working with their members to put together comments that include commodity-specific feedback. United Fresh has organized working groups and webinars for their members.  PMA is hosting two webinars on the rules today and two more Jan. 24.

FDA is seeking comments on the proposed produce rule through May here.

© Food Safety News
  • http://twitter.com/MichaelBulger Michael Bulger

    The technical issues involving water that an apple grower would be required to address would be considering risks and  safeguards, inspecting equipment for cleanliness, and testing any untreated agricultural water (pond water, well water, etc.) that is intended to contact the apples directly (e.g., washing harvested apples). 

    The FDA states that there are many low-cost products that are available to test levels of E. Coli. This testing would need to be done anywhere from once a week to once every few months during the working season (the frequency would depend on whether the water comes from a stream, well, pond, etc.).

    Of course, many apple growers would likely not be spraying irrigation water directly on their fruit. Thus, that water would not have to be tested by the grower. Treated water, such as public drinking water, would also be exempt from testing. In addition, smaller farms would get additional years to comply with water testing once the final rule is published.As for kale, that exemption confused me. It was proposed under the premise that kale is rarely consumed raw. Personally, much of the kale I eat is raw. Tossing kale in a light lemon vinaigrette tenderizes good-quality kale and makes the basis for a delicious salad. If the final rule exempts kale, it will be particularly important to wash raw kale before eating. 

  • flameforjustice

    Just because some people took ‘issue’ with your previous article I was NOT one of them;keep up the good work.I thank you for all the important information you give to concerned consumers of the foods they eat.Sincerly Sharyn aka flameforjustice.