Editor’s Note: We’ve asked Jill Richardson, author of “Recipe for America: Why Our Food System is Broken and What We Can Do to Fix It” for a behind-the-scenes analysis of the legislative battle over food safety legislation that remains alive in the current Congress.
Over the past year and a half, the rumors have made their rounds more than once. “The food safety bill will shut down farmers’ markets!” “The food safety bill will kill organics!” “You can be criminally charged for your own vegetable garden if the food safety bill passes!”
Everyone from elected officials to members of the media to even Robert F. Kennedy Jr. heard these rumors and wondered if they could be true. Some even believed them, despite a few obvious giveaways that the rumors were entirely bogus. (For example, at one point, while Congress was on a two-week recess, emails went around claiming that the bill would pass within the next two weeks–a claim that had already been circulating for six weeks or so at that point.)
So is it true or false? Is the food safety bill (S.510) the end of food as we know it, or is it a much-needed update to an old regulatory system based on outdated science and corporate lobbying? The answer, of course, lies in the middle.
On one hand, some people have legitimate concerns with the bill. On the other hand, it’s easy to agree that we should not continue with our current food safety system that gives us frequent nationwide recalls, sickness, and even deaths due to everyday foods like eggs, spinach, and peanut butter. And, while the bill does a lot, even those who support it know that it does not do everything. (In fact, the bill only affects the FDA, which regulates 80 percent of the U.S. food supply, but not the USDA or EPA, which also have food safety oversight duties.)
The rumors, as you may have guessed, were mostly baseless. They seemed to come from people who were not adept at reading the legalese in which bills are written, who had not watched the federal hearings that helped determine the content of the bill, and who were not even terribly familiar with how Congress operates.
When you get one of those emails, it’s easy to hit reply all and say, “This email is totally bogus!” But what about concerns raised by people who can read legalese and who are familiar with the inner workings of Congress? The crazy rumors managed to obscure a true debate, one that has been quietly taking place as the bill slowly worked its way through first the House, and then – partially – through the Senate. (The food safety bill, S. 510, was almost certain to pass the Senate and go to Obama’s desk this month, until Sen. Tom Coburn – a doctor – decided that he could not allow the bill to move forward, Hippocratic oath be damned. Now the bill seems unlikely to pass before November.)
The true debate takes place between two groups of people who are intelligent, well-informed, and looking to do the best thing for the country. All involved agree that the current situation is highly unacceptable, because nobody deserves to get sick or die from eating peanut butter.
And, generally speaking, most would point the finger at large corporations, because they are responsible for the vast majority of food poisoning outbreaks – particularly the ones that make national news and make hundreds or thousands of people sick. Most would also agree that the 10-acre farm selling produce or jam at a farmers’ market is not the big food safety problem in the U.S.
The disagreement comes over priorities and trust in government. On one side, consumer advocacy organizations like Consumers Union feel strongly that the bill should have no loopholes for unscrupulous individuals or corporations to duck through. If the bill exempts small farms, would a large farm be able to break itself up into many smaller entities to escape regulation?
The folks on this side of the debate tend to generally trust the FDA to do the right thing. Thus far, the bill has been amended to give the FDA discretion to exempt small farms from some of the bill’s provisions. Presumably, the FDA would have the sense to exempt truly small farms but not exempt a large farm trying to evade regulations by posing as many small farms.
Furthermore, they worry about imports. Would an exemption for small farms disproportionately apply in developing countries where food safety is not as advanced as it is in the United States? (Perhaps a better question is why we sign trade agreements that preclude us from imposing harsher food safety regulations on trading partners than we do on our own farmers, given that other countries may not have safe drinking water or strictly enforced laws on pesticides and antibiotics used in agriculture like we do in the U.S. However, changing that is outside the scope of this bill.)
The other side of the debate comes from a group that is less trustful of the government, many of whom are farmers or consumers who enjoy buying their food directly from farmers. The government has not always acted in a way that would earn it trust, and farmers are acutely aware of cases in which farmers have lost their farms due to government policies or even misconduct.
Humans – imperfect humans with egos, interpersonal conflicts, and career aspirations that can get in the way of their job performance, run government agencies like the FDA. Even if the FDA is mostly good, and even if its enforcement of this law is mostly good, farmers worry, “What if their one mistake is my farm?” (Remember the summer of 2008 when the government wrongly identified tomatoes as the source of a Salmonella outbreak, telling consumers to avoid eating raw tomatoes, only to find out that the Salmonella actually came from peppers?)
Clearly, both sides of this debate make valid points. No, we don’t want loopholes that would allow for more foodborne illness or even deaths. And yes, it’s distinctly possible that the government could screw up like they did with the tomatoes and peppers, sending the FDA with newly expanded powers to inspect innocent farms for tainted tomatoes.
The bill language, as it stands now, is intended as a compromise between these two sides. But these are two sides that cannot compromise terribly well. One side wants no absolute exemptions to the food safety bill, and the other side does not think it’s enough to give the FDA discretion about which farms or small processors to exempt.
What should be recognized is that much of the bill is not controversial. Many provisions in the bill do not involve farms at all, but instead focus on food manufacturing facilities and warehouses. However, a farm suddenly becomes subject to many of the provisions if it performs on-farm processing (like making maple syrup, sun-dried tomatoes, or jam).
For example, food facilities, including farms that engage in on-farm processing, must create food safety plans (subject to FDA inspection) that analyze risks, take preventive controls, monitor the effectiveness of the plan, take corrective actions, and provide verification that the plan is working. Facility owners must keep records and periodically re-analyze their plans.
The FDA must “provide sufficient flexibility to be practicable for all sizes and types of facilities,” including small businesses. However, Judith McGeary, of the Farm and Ranch Freedom Alliance, criticizes this provision, saying the bill language uses “undefined terms” that are “in practice, largely unenforceable.” (Full disclosure: Judith McGeary and I are friends.)
Additionally, the FDA may choose to exempt or modify requirements for on-farm processing “as the Secretary [of Health and Human Services] deems appropriate” for small facilities and low risk activities.
While McGeary pushes for bill language that provides airtight exemptions for small farms, consumer advocate groups fear that any loophole that large would put the nation’s food safety at risk. They tend to think that making a food safety plan is not a big deal for a farm – a small sacrifice to make for a safer food system.
But some farmers – particularly those on small, diversified farms with a large number of products and processes that would each need food safety plans – feel that this is an undue burden. It’s already very difficult to stay in business as a small farm and diverting labor from farm activities to write and follow food safety plans (when the food they produce isn’t the nation’s major food safety problem in the first place) would make it that much harder to stay profitable.
The bill directly regulates farms in a requirement for the FDA to create standards for growing and harvesting fruits and vegetables, including standards for “soil amendments, hygiene, packing, temperature controls, animals in the growing area, and water.” While the FDA cannot regulate meat, eggs, or dairy, farms with animals could face new rules about “animals in the growing area.”
To date, a few compromises have been included in the bill to minimize any harm it causes to small, sustainable farms. The produce standards must provide “sufficient flexibility” and be “appropriate to the scale of diversity” of the farms. (Again, McGeary criticizes these terms as undefined and largely unenforceable.) The FDA may exempt or modify its requirements for small or very small businesses that grow low risk crops, and the standards cannot conflict with organic regulations for certified organic producers.
However, many sustainable producers that grow organically choose to forego organic certification because of the cost associated with becoming certified, and those non-certified producers would not be included in the protections for certified organic producers.
Last, the FDA must “take into consideration, consistent with ensuring enforceable public health protection, conservation and environmental practice standards and policies established by Federal natural resource conservation, wildlife conservation, and environmental agencies.” Here, McGeary worries that the FDA is not legally obligated to protect natural resources or wildlife.
One more point of contention remains in the bill. The food safety bill requires a new traceability system so that when a food safety outbreak is traced to a particular plant, all of the affected foods can be identified and recalled quickly. Thus far, food sold directly from a farmer to a consumer is exempt from this portion of the bill. However, food sold from a farmer directly to an institution (school, hospital, prison) is not.
Here, the FDA is instructed to consider the impact on farm-to-institution programs and then modify the traceback requirements “as appropriate” to avoid “undue burdens.” Consumer advocates worry that a more complete exemption of all farm-to-institution direct sales could accidentally, for example, exempt an enormous factory farm supplying large amounts of food to, say, the entire Chipotle restaurant chain from any traceability requirements.
All in all, great care has been taken in the year and a half or so since the bill was first introduced to write in many protections for small, sustainable, ethical farmers and small businesses. And, assuming the FDA is trustworthy in following the bill as written, the bill looks pretty good for any small farmer or processor.
The question is which scenario would be more likely: for the FDA to abuse its power (despite bill language encouraging it to be mindful of small farms and processors and sustainable growing practices when enforcing the bill), or for large corporations or farms to sneak through any loophole that was intended for small, sustainable farms and businesses?
The various parties have come far in compromising on the protections provided for small, sustainable farms and processors, but because one side insists on absolute exemptions and the other side refuses to accept that, it seems a compromise that both sides are 100 percent happy with will not be forthcoming.
Jill Richardson has worked with Consumers’ Union in lobbying for Senate passage of food safety legislation.