Amidst the flurry of activity surrounding the proposed food safety bills currently in the House and Senate, one of the most hotly discussed topics remains whether the bills will affect small farms.  Will these bills end the organic farming movement as we know it?  Will farmers markets dwindle as growers are overwhelmed by regulations?  To answer these questions, it’s important to look not just at the language of a few provisions, but to the entire bill in order to develop a clear picture of which operations legislators think should be subject to the new requirements.

To do this, I’m going to start with H.R. 2749, the Food Safety Enhancement Act of 2009.  One of the most pressing issues for small farmers is whether they will be subject to the new registration requirements of Section 101, and the fees and duties that accompany these requirements.  Section 101 explicitly states that “farms” are excluded from the registration requirements, but what exactly does this mean?  For this purpose, it’s handy to look at the specific language of the proposed law.  It states:

(D)(i) The term ‘farm’ means an operation in one general physical location devoted to the growing and harvesting of crops, the raising of animals (including seafood), or both.

(ii) Such term includes–

(I) such an operation that packs or holds food, provided that all food used in such activities is grown, raised, or consumed on such farm or another farm under the same ownership;

(II) such an operation that manufactures or processes food, provided that all food used in such activities is consumed on such farm or another farm under the same ownership;

(III) such an operation that sells food directly to consumers if the annual monetary value of sales of the food products from the farm or by an agent of the farm to consumers exceeds the annual monetary value of sales of the food products to all other buyers;

(IV) such an operation that manufactures grains or other feed stuffs that are grown and harvested on such farm or another farm under the same ownership and are distributed directly to 1 or more farms for consumption as food by humans or animals on such farm; and

(V) a fishery, including a wild fishery, an aquaculture operation or bed, a fresh water fishery, and a saltwater fishery.

(iii) Such term does not include such an operation that receives manufactured feed from another farm as described in clause (ii)(IV) if the receiving farm releases the feed to another farm or facility under different ownership.

Elsewhere (such as in the records keeping provisions), H.R. 2749 refers to the definition of “farm” from section 415 of the Food, Drug, and Cosmetic Act, which states:

The term `facility’ includes any factory, warehouse, or establishment (including a factory, warehouse, or establishment of an importer) that manufactures, processes, packs, or holds food.  Such term does not include farms; restaurants; other retail food establishments; nonprofit food establishments in which food is prepared for or served directly to the consumer; or fishing vessels…

Under the traceability provision, Section 107, the bill excludes food produced on farms, so long as it’s “sold by the owner, operator, or agent in charge of such farm directly to a consumer or to a restaurant or grocery store.”  The minimal requirement in such a scenario is that the farm must “keep records, in electronic or non-electronic format, for at least 6 months documenting the restaurant or grocery store to which the food was sold.”

The amended Section 112 only requires reporting to the Reportable Food Registry for farmers who distribute food in interstate commerce.

Gathering all of these provisions, we can form a complete picture of the type of “farm” that’s excluded from the H.R. 2749.  A farm that operates for personal use or primarily engages in face to face sales to consumers (at farmer’s markets for example) is excluded from the requirements.  On the other hand, a farm that sells mostly to resellers or (at least regarding the Reportable Food Registry) sells across state lines, must conform to the requirements of the bill.  The fact that any operation that “manufactures, processes, packs, or holds food” is a deemed “facility” sets a fairly low bar for operations that engage in a minimal amount of food processing.  Nevertheless, given the entire context of the bill, the farm cutout was created simply to protect local operations that sell raw produce directly to consumers.  

If you step outside of the realm of raw-product-to-consumer-sales, you end up with a “value-added” product for which operators must be held to a higher standard.  Though many concerned farmers (understandably) grumble at this distinction, the overriding point is that there are costs associated with expanding any business.  Farms that “manufacture, process, pack, or hold food” are, after all, very likely to be for-profit operations.  When a business owner decides that she wants to place a product into the stream of commerce, she must be prepared for the greater responsibility to consumers that accompanies the chance for higher profits.  The balancing act, as far as the legislation goes, consists of weighing the utility of the locally grown movement (remember the raw-product-to-consumer-sales exception) against the need to ensure the public that the food they buy is safe.

This is a trade-off that operators will have to take into account when considering whether to expand their operations beyond face to face sales.  Yes, it might mean that some fledgling operations may encounter roadblocks when expanding; however, an operation’s choice to engage in broader sales should not come at the expense of consumer safety and business accountability.  When a farmer decides that her product should be sold alongside corporate products, the farmer owes a duty to consumers to ensure that the product is held to the same national production, inspection, and safety standards that the corporate product must adhere to.  This isn’t a stand for big business; this is a stand for the health of the men and women who pay for these products.

In an ideal world, small farmers would be able to process goods, create value added packaged products, sell them to local resellers, and manage local supermarkets of safe food.  Unfortunately, as we’ve witnessed time and time again (Peanut Corporation of America comes to mind), business, ethics, and food safety do not always go hand in hand.  These bills, though woefully imperfect, are a result of that reality.