Is the Food Safety Bill a Blessing or a Corporatist Curse?

What’s covered?

The Act covers about 80 percent of the food supply, including:

• fresh fruits and vegetables
• eggs
• dairy products
• most processed foods

But there are gaps. Meat, for instance – that’s policed by the Department of Agriculture. So slaughterhouses and meat packers aren’t covered. Nor is processed food that contains meat and meat products.

Small Farms

Yes, as initially written, the bill would have applied a stupid amount of regulation to precisely the small farms that didn’t need it. As Pollan says, “The largest outbreaks are routinely caused by the largest processors, not by small producers selling their goods at farmers’ markets.”

As notes Roland McReynolds, writing at Food Safety News,

The FDA’s own guidance just published for processing cut leafy greens, which any local garden that prepares a salad mix for sale to local restaurants is potentially subject to, estimates that it would take a trained corporate team 100 hours to develop an appropriate safety plan, not to mention the cost of tests that such a plan would have to require.  The husband-and-wife team likely operating a produce farm for a local food market, in addition to their off-farm jobs, don’t have a spare two-and-a-half weeks to create a plan, let alone the expertise of a team of food technologists, lawyers and engineers necessary to come up with a plan in 100 hours.

… The California experience has shown that the big boys’ model is devastating to low-input growers, as well as organic farming and soil conservation programs.

The Tester Amendment (pdf) was designed to exempt small farms.

But does it? I wish I could give you a straight answer.

• Small farms could count as “Qualified Facilities”, which are exempt from some of the regulations.
• Some mom-and-pop operations would be covered; others not. It would be pretty easy for even small operations to exceed the dollar threshold ($500,000 average over three years).

Eric Blair at Activist Post read through the amendment and analyzed it in detail, and he says there’s good news and bad news here.

• Qualified Facilities aren’t required to write up a company food-safety plan – a time-consuming and expensive operation
• But they are NOT  exempt them from “inspections that they get billed for, licensing requirements with expensive quality controls, product confiscation without cause or recourse, and even armed raids.”
• AND in order to become a Qualified Facility, they must submit a bunch more paperwork. “In other words,” says Blair, “they must submit similarly comprehensive plans just to qualify to be exempt from creating them.”

“If Grandma wants to sell her famous raspberry jam at the county fair (within 275 miles of her canning kitchen) she will indeed be qualified for small producer exemptions,’ Blair notes, “but not before she forks over 3 years of financials, documentation of hazard control plans, and all local licenses, permits, and inspection reports. She must submit this documentation to the satisfactory approval of the Secretary; and if she fails to do so, the entirety of S.510 can be enforced on her.  That’s hardly what I would call an exemption.”

Blair says it’ will be so cumbersome to get the exemption that a lot of local producers will just throw in the towel. Which, says Blair, is probably what the big producers want. You and I may not think that grandma or grampa are competition for the multinationals, but they have demonstrated in the past that the big companies actually do care – and are willing to sue to shut the old folks down. Now they won’t have to; they can just call the government and have Uncle Sam do it.

But Blair missed some things and got some numbers wrong. For instance, there’s a whole second option for defining Qualified Facilities: The FDA can also set rules that define what it means to be a “very small business.” Clearly, Grandma’s operation could fall under that heading.

But wait, there’s more….

There’s yet another “guidance document” that has yet to be written by the FDA. Writing at Grist, food reporter David Gumpert is worried about that. “For years, the USDA sought to implement a program that would force farmers to register their farms (or “premises”) and each and every animal — known as the National Animal Identification System (NAIS). It finally pulled back last year, in the face of growing farmer outrage… You don’t have to have a very fertile imagination to conjure up what might be in that ‘guidance document’.”

Where does that take us? Gumpert fears we’d have FDA inspectors at every small farm in the country (although where those inspectors would come from he doesn’t say – the FDA is chronically  understaffed). So he may be blowing things out of proportion. That’s the problem – we don’t know.

Or are they both wrong?

So says Margie McDonald, regional organizer with the Western Organization of Resource Councils. She says they’re misreading the bill:

Starting with the issues related to facilities, it is important to make clear that the Tester amendment does not change current law, the Bioterrorism Act of 2002, which already requires small facilities to register with the FDA. Without the Tester amendment, every facility that is required to register with the FDA under the Bioterrorism Act, which includes tens of thousands of small local food businesses that are already being inspected and certified under local health departments, and farms that add value and sell their produce off-site, would be subject to an arduous and extensive laundry new laundry list of hoops and steps…

…There are two avenues for a “qualifying facility” to avoid extensive hazard analysis and control requirements detailed in S. 510. The simplest and easiest path is by documenting that the facility is already being inspected at the local or state level, and the vast majority of these facilities already are inspected by local public health agencies. Alternatively, if a facility cannot demonstrate it is subject to state or local public health oversight, it can submit a much simpler, shorter statement addressing potential hazards and prevention steps.

With respect to farms, the exemption is simpler. Under the Tester-Hagan amendment, a qualifying farm — one that grosses under $500,000 and sells more than half its products directly to qualified end users — is exempt. Period. There is no need to provide special documentation or go through any process, beyond putting a label or displaying a sign with the farm’s name and address.

That sounds great. I hope she’s right. (See the Grist “Food  Fight” for a good back-and-forth discussion of all this messy detail).

Enforcement

One of the biggest issues leading to food recalls has been the slashing of the Food and Drug Administration’s budget and workforce. The Bush Administration wasn’t a big fan, leading to a situations where there were so few inspectors that plants would only be visited every few years.

Good news/bad news on this one: the Homeland Security Department is going to help out. If this makes you nervous… you’re probably smart. Just think of the uproar over air travel the past month, and imagine the same gentle mercies applied tenderly to grandma’s farm.

Don’t think it can happen? It already is – from the raid that shut down and confiscated the livelihood of a private cooperative in California that wanted to practice a lifestyle of raw-foodism (in minute violation of Federal Regulations), to the ordered destruction of raw-milk cheese in Missouri or the raids on Amish dairies that sell raw milk.

On the bright side, the original provision – 10 year prison sentences for selling raw milk! – was removed.

More on this issue:

• Food Safety Modernization Act, The Bill That Wouldn’t Die, Is Dead
• Zombie Food Safety Act Resurrected by Senate
• The Food Safety Act is Now Law. But How Will It Be Enforced?

(Image credit: McGinch from American Gothic Parodies)