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Fresh Produce at Farmers Markets Exempt from New Food Safety Regs

For farmers who sell fresh fruits and vegetables at farmers markets, food safety will be business as usual, despite the federal Food and Drug Administration’s new proposed rules governing produce.

“Business as usual,” because most market farmers are exempt from the new rules, just as they’re exempt from the Food Safety Modernization Act, which was signed into law in 2010.

Under the act, farms are exempt if they average less than $500,000 in food sales annually (for the last 3 years) and sell most of their food directly to consumers, restaurants and stores within the state or 275 miles or less from the farm.

However, states do regulate items such as milk, cheese, meats and eggs, among others.

Praised as the most sweeping reform of the nation’s food safety laws in more than 70 years, the act takes aim at preventing food from becoming contaminated with pathogens that can sicken or kill people instead of responding to foodborne outbreaks after they’ve happened.

According to the FDA, the two proposed rules for produce will play a role in implementing the act.

Concerns about fresh produce

In comments about fresh produce, FDA describes this category as possessing a special food safety risk because, when eaten raw, it doesn’t go through a “kill step” such as being subjected to high enough temperatures to kill harmful pathogens.

Fresh produce is also of special concern, says the agency, because people are eating increasing amounts of it, in part because public health agencies are recommending fruits and vegetables for their nutritional benefit.

In addition, because produce is generally grown outdoors, it can be contaminated in various ways – by polluted irrigation water, fecal droppings from wild life and livestock and contact with the soil.

According to a recently released report from the U.S. Centers for Disease Control and Prevention, produce such as fruits and vegetables accounted for 46 percent of the 4,589 foodborne illness outbreaks linked to a specific commodity between 1998 and 2008. At the top of the list were leafy greens, which were responsible for the most illnesses, many of which were caused by noroviruses, the most common cause of acute gastroenteritis — an infection of the stomach and intestines — in the United States.

FDA’s analysis of available foodborne illness outbreak data documents 131 outbreaks associated with contaminated produce between 1996 and 2010 that caused more than 14,000 illnesses and 34 deaths. These foodborne illness outbreaks were caused mainly by biological hazards such as Salmonella, E. coli O157:H7, Shigella, Hepatitis A and Cyclospora.

FDA’s proposed rules for produce cover 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.

Of special interest to farmers is the second produce rule, which proposes enforceable safety standards for the production and harvesting of produce on farms. An FDA press release about the rules says they were developed using science- and risk-based standards.

Even so, small-scale farmers who meet the exemption qualifications in the act won’t be bound by any of the rules.

Who’s minding the shop?

For the most part, states rely on county health departments to check out food safety at farmers markets. But that usually comes down to making sure that prepared foods such as soups and pizza are at the correct temperatures, that eggs and milk are being sold according to state regulations, that samples are cut and handled according to basic sanitation principles and that farmers and employees handling food have access to proper handwashing setups.

In California, when the state’s Agriculture and Food Department certifies the its approximately 700 farmers markets and approximately 2,200 producers who sell at the markets, the department doesn’t get involved in food safety issues. Instead, said department spokesman Jay Van Rein, the emphasis is on making sure the market farmers are selling only what they’re actually growing — not food they’ve bought from other sources.

When it comes to food safety, Van Rein said that’s up to the local health department offices.

Lisa O’Malley of the San Francisco Department of Health said the department follows the state’s Retail Food Code. At certified farmers markets, certain requirements of the code must be met. For example, food must be stored at least 6 inches off the floor or ground, no live animals (exceptions for guide and service animals), birds or fowl can be kept or allowed within 20 feet of any area where food is stored or held for sale and food samples must be distributed in a “sanitary manner.”

Even so, Jerry Lami, executive director of the West Coast Farmers Market Association, which operates five farmers markets in northern California, and Jan Taylor, director of the association’s market operations, told Food Safey News that fresh produce sold at farmers markets is, for the most part, not governed by the state when it comes to farmers’ food safety practices.

In Indiana, food safety boils down to faith on the part of the consumers that the farmers they’re buying from at farmers markets are following good food safety practices, said A. Scott Gilliam, Director of Food Protection at the state’s department of health, in an e-mail to Food Safety News.

And while his program offers workshops on food safety and continues to encourage all fruit and vegetable farmers, no matter what size their farm is, to use good agricultural practices (known as GAPs) and third-party certification, he said that so far “it has been only guidance.”

Retailers, meanwhile, have been moving toward requiring the farmers they buy from to follow good agricultural practices. But Gilliam said that “many farmers markets have not evolved to that level.”

He also pointed out that wholesalers can exert “much influence” on food safety practices. An example of that influence, he said, is that watermelon and cantaloupe growers in Indiana “are poised to stand together” in implementing good agricultural practices and using third-party certification — and plan to put pressure on growers who do not.

Pointing out that the state’s melon growers “lost a lot of market share and untold amounts of money” last summer because of the multi-state outbreak caused by Salmonella-infected cantaloupes from a farm in Indiana, Gilliam said that sort of fiasco affects all farmers of a crop, no matter how big or small they are.

In Washington state, Jill Trohimovich, an environmental health specialist with the King County/Seattle Public Health Department and liaison between the department and farmers markets, pretty much echoed what officials in other states said about fresh produce inspections at farmers markets: it’s not really part of the territory.

“We do just a quick walk-by — take a quick peek at exempt foods,” she said.

Kirk Robinson, Assistant Director of Food Safety and Customer Services at the state’s agriculture department, said that even though the department has very little oversight of fresh produce sold at farmers markets, it does offer workshops on food safety.

“It’s really important,” he said, referring to food safety. “It’s a concern for everyone.”

Joel Wachs, a past president of the Washington State Farmers Market Association and a former president of the Mercer Island Farmers Market, would agree. He said that during the Association’s recent annual conference, the session about food safety drew a packed room, with people sitting on the floor because there weren’t enough chairs for everyone.

“There’s a huge level of awareness about food safety,” he said. “Farmers don’t deny that this an important issue — if not the most important issue — for them.”

But he also said that it can be difficult for small-scale farmers to deal with all of the complexity that comes with food safety rules and to maintain the necessary paperwork, and can be difficult for the agencies involved as well. A large farm can hire people to put a plan in place and maintain it, he said, but small farms don’t have the resources for it.

That’s why he believes that finding a balance between food safety regulations and small farms to allow a degree of flexibility in how small-scale farmers can achieve them is so important.

On the legal front

Food safety attorney Bill Marler (publisher of Food Safety News) reminds small-scale growers that, exemption or no exemption under the Food Safety Modernization Act, they can still be sued if their food is contaminated and gets people sick or kills them.

“I grew up on a small farm,” he said. “I know the pride my father had in what he produced. But small farmers are not exempt from today’s bacteria and viruses. To think they are immune because they are not ‘big Ag’ is living in a world that does not exist. One child with HUS caused by E. coli can cost millions of dollars. Those are dollars ‘small Ag’ does not have.”

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

Farmers markets update

According to information from the USDA, farmers markets are a significant source of fresh fruit, vegetables, meats and other items sold directly from the producer or farmer to U.S. consumers. USDA data from August 2012 show that across much of the United States the number of farmers markets continues to grow. Go here for information on how the penetration of farmers markets varies geographically and a map showing the percent of change of farmers markets per capita between 2009 and 2012.

© Food Safety News
  • http://www.facebook.com/people/Raymond-James/100000892166766 Raymond James

    Talking with growers in Henry, Johnson, Pettis and Benton County Missouri they definatly have been getting information  on best practices to use.   They have had several meetings  on how to implement and assure complinace.  I hope they do well  but I favorunannounced inspections by  inspectors not directly paid by the producer. 

  • Richard Moyer

    Cookson, Thanks for your reporting.  However, I take exception to your first few sentences (find below), which appear to be editorializing, making conclusions for your audience before they read your report.
    Point in fact, due to GAPS and other efforts for produce safety, there are increasing training opportunities at the county, state, and regional level.  A number of market farmers attend these, to up their game and increase sales opportunities.  Despite what some may think, at least some small growers DO take advantages of training, and not because they are mandated by law.  Conversely, have been to some training required by law, where the trainer tells the farmers the right answers to ‘pass’ the test, to give the appearance of successful training in current food safety practices.  My point, FSMA will cause many more training opportunities for ALL farmers, regardless of size of operation, and the smallest operations who choose to attend, to stay on top of their game, can be some of the best examples.  For there not under force of law, but voluntarily, reasons of their own choosing.
    Most of the producers at my farmers market grow vegetables in their home plots, provide all their own labor (not bringing temps in), grow their own food, use sanitation facilities set up for their own use (primarily household), etc, which could lower the risk of some veggie contamination before it reaches market.  Our customers also know they need to wash the produce before eating it, something not assumed for many fresh foods sold in groceries.
    As for risk of other foods found at farmers markets:  The FSN website features a previous article about honey, the degree to which hyperfiltered honey (pollen removed) now dominates much of the US market, a substantial portion of this likely coming from China, with a history of documented contaminants.  And FDA still refusing to set honey standards.  Best place to buy the lowest risk honey?  From the FSN report, your local farmers market, and a few high end groceries.  Is this possible for any other items found at farmers markets, that they could be equal or lower risk? Or at least more easily traceable, less adulterants?
    As for red meats, farmer’s market vendors also use USDA inspected facilities.  But these tend to be local, family owned and run, and have one USDA inspector per 1-6 total head of cattle per day (trust me on this, I see it).  These cattle processed one at a time.  Hence I can describe to my customers how their beef cuts or ground came from a single cow, and the whole production from the beef processor that day was beef from my farm, or from 1-2 other local farms.  And how I saw the USDA inspector looking over and inside each piece of equipment before my beef was processed.
    I agree that the health benefits of fresh veggies and produce are well documented, as well as the importance of their sale to many small-scale farmers.  In my experience, FSMA, however it works itself out, will offer increased training opportunities to all farmers.   And the ones who choose, voluntarily, to learn from such training and principles?  They’ll be setting the standard at many local farmers markets.  
    In summary, I believe increased opportunities in food safety training, in best practices, will raised the bar for all.
    FSN “For farmers who sell fresh fruits and vegetables at farmers markets, food safety will be business as usual, despite the federal Food and Drug Administration’s new proposed rules governing produce.  “Business as usual,” because most market farmers are exempt from the new rules, just as they’re exempt from the Food Safety Modernization Act, which was signed into law in 2010.”

    • farmber

      As already well-stated this article leads off with some inflammatory editorializing-type “business as usual” statements — before getting the reader lost in the weeds of a multitude of food safety constructs. 
      The fact is that some smaller scale farmers will qualify for scale and risk appropriate ALTERNATIVE oversight regimes under FSMA instead of being directly subject to federal regulation. But at the same time a deeper look shows FDA retains a “material conditions” clause that allows them to come onto any farm, whether exempt from the federal rules, or not. Meanwhile there’s a HUGE food safety exemption that runs throughout the 1700-some pages of the proposed produce and processing rules where the toxic chemical and genetic  contamination rife in the marketplace is not touched with a 10 foot pole. Talk about (Agri)business as usual!!

    • http://www.foodsafetynews.com/ Food Safety News Information

      Thanks for your response, Richard. 

      When I said “business as usual,” I merely meant
      that the proposed new produce rules weren’t going to make much difference to
      farmers who are exempt from the rule proposals. For some, “business as
      usual” means following accepted food-safety practices; for others, it
      means following some of them; and for others, it’s ignoring them because they
      think that because they’re small-scale and doing most or all of the work
      themselves that they’re doing things in a perfectly safe manner. And in the
      case of some produce, such as cut leafy greens or cantaloupes that have been
      nicked, washing them isn’t going to get rid of pathogens that have managed to
      get into them. That’s why it’s so important to follow basic food-safety
      practices . . . for the most part, doing that will prevent pathogens from
      getting onto the produce in the first place.

      Cookson