Four years ago, in March of 2009, the relative tranquility of the Sustainable Food Movement was interrupted by what seemed a rapid burst of urgent messages, mostly coming by email, as though from some alien civilization. The versions of what was happening in this other world varied, but boiled down to something like this: “Help! Take action right now, to prevent our government from shutting down small farms, outlawing farmers markets and the growing of backyard tomatoes!”
The messages were disturbing, not only due to content, but for the way they were written to incite the maximum amount of panic and anticipated mass response. Many PASA members were getting them, and I began to hear from folks wanting to know what was happening. I also heard from Russell Libby, then executive director of the Maine Organic Farmers and Gardeners Association (MOFGA), who was in the same predicament. Together, we resolved to get to the bottom of it.
We knew right from the start that the messages everyone was getting could not be factually credible. So we decided to look for answers at the source of the controversy – the Commerce Committee of the United States House of Representatives. As it happens, in an incredibly fortunate twist of fate, a scientist friend of mine was working with the committee and advising its members on food safety issues. It was comforting to hear from my friend how well-understood it was becoming that pathogenic risk in the food system could be minimized by reducing handling, shortening supply chains and avoiding mass distribution systems as much as possible. In other words, and as he put it to me, “Local and regional food systems are a necessary strategy to assure food safety.” Such convergence of commonsense and science is rare, and seemed to exonerate the local farms and backyard tomatoes of the world.
It’s funny, though, how reality is often divided between what is and what should be. The discussion of safe food basically boils down to two main tenets: 1) It is impossible to eliminate risk altogether and 2) risk can be minimized by getting as close to a direct farm-to-consumer transaction as possible. If you accept both tenets as truth, then building a healthy and wholesome food system is a relatively straightforward project, which is not saying it’s easy to accomplish in any case. But the “what is” part of reality, or the status quo as it were, is not easily overcome. The political realities we have run into since that first conversation with my scientist friend have been daunting to say the least.
In our meetings with staff of the Commerce Committee we found out they were planning, through new food safety legislation, to impose a flat registration fee on all registered facilities (including many farms), regardless of size. There was distinct resistance to establishing a sliding scale or even a minimum size limit for such entities needing to pay because, as they explained, “we would lose the vast majority of our new revenue stream.” Now, it must be understood we had not suggested that somehow smaller facilities are safer than larger ones, but it just so happens that most of those facilities involved in the lower risk types of commerce described above tend to be smaller than those posing higher risks. Therefore, the fee structure being proposed would have created a major regressive hurdle for the very types of risk reduction we would hope to achieve in this process. Needless to say, we were stunned by their reasoning. The idea of applying registration fees was later scrapped for political reasons, but it was clear at this early stage just how powerful the status quo was going to be in the ongoing battle.
I’m not only talking about the influence of big agribusiness corporations in this political process, but the emergence of a new set of players in early 2009. Major consumer advocacy organizations, some of whom had heretofore sounded like proponents of local and regional food systems, began to emerge as the most significant opponents of any type of risk-based approach in the Food Safety Modernization Act (FSMA). Their spokespeople were clearly annoyed that the sustainable and organic farming community was entering the debate at all. We became even more suspicious when they expressed their strong support for the appointment of a former Monsanto executive, Michael Taylor, as our nation’s new Food Safety Czar, hired to shepherd the new law through Congress and into the federal regulatory framework. (For the record, Taylor ended up being a fairly attentive and reasonable guy, though such qualities were clearly in his job description.)
It wasn’t long before we could tell that the consumer groups had, so far as we could tell, appointed themselves as the ultimate clearinghouse for anything that went into or out of the proposed legislation. Their work was also bolstered by certain misleading information that was circulating at the time. Throughout 2009 and 2010, nearly every press release they put out trumpeted that 5,000 people were dying each year of foodborne illness in this country. But at the end of 2010, as the law passed, the number was somewhat arbitrarily reduced to 3,000 by the Center for Disease Control (CDC), and the FDA and consumer groups dutifully conceded. Interestingly, early in 2013 the CDC released a study suggesting that the number over the past decade was a little less than 1,500 per year. Even one death is more than anyone would want, but such adherence to evolving numbers in establishing a so-called “scientific” basis for food safety regulation has been very troubling to say the least.
There’s too much detail involved in the nearly 2-year process it took for FSMA to move through Congress for full explication here, but suffice it to say that a strong and growing alliance of partners, working through the National Sustainable Agriculture Coalition (NSAC), was successful in getting a number of protections for sustainable and organic farms built into the final version of the bill. The most important and controversial piece, however, was the so-called Tester-Hagan Amendment (THA), which exempts farms with total sales under $500K per year, so long as a majority of sales are restricted to within the farm’s home state or a radius of 275 miles. In this context, the word “exemption” must always be taken with a grain of salt because the amendment did not totally exempt anyone. In most cases it would refer qualified farms to existing state and local regulations, and affected processing facilities to the Good Manufacturing Practices that are also updated in the new federal rules.
Here is where the story gets really aggravating. As I already explained, our coalition is not inclined to make claims that food safety is a size-dependent concept; rather, it’s more a function of the farming and distribution systems involved. But the FDA and consumer groups are not ready to buy into the idea of a complete system overhaul just yet, preferring instead to rely on a size restriction within the law and regulations. That preference is reflected in the THA provisions. Lately, however, the consumer groups seem to be joining forces with the industrial farm lobbyists in an attempt to nullify the exemptions as they appear in the rules altogether, using plenty of fear mongering to make their case.
I must explain at this point that the sustainable farming community has been totally thwarted throughout this saga from including consideration of food safety factors outside the occasional outbreak of pathogens. Such factors might include rampant use of antibiotics and pesticides in food production, and the tremendous loss of biotic diversity and soil health that signals a much greater problem coming down the road. In brief, we have tried to shift the discussion from focusing exclusively on short-term safety issues to a more comprehensive and long-term consideration of food security, but mostly to no avail.
And so, we are now rallying our resources to fight for those THA exemptions in order that some subset of the whole food system can continue to keep the focus where it should be. We still don’t think farm or facility size is the primary issue, but as I said, the powers that be seem ill-prepared for a more nuanced and comprehensive approach to the matter. Regardless, we must at least protect the growing contingent of farmers and facilities serving local and regional markets, and especially those just getting started, from the overreaching and potentially destructive oversight of a federal agency that seems to know very little about on-farm food production.
At issue within the THA language is something we have been calling the “material conditions” clause, which was actually the final addition to the FSMA legislation that allowed it to pass and be signed into law. That clause, which brought great comfort to the consumer groups in particular, would allow the FDA to revoke a THA-designated exemption whenever an illness outbreak is traced to a farm, or…
…the Secretary determines that it is necessary to protect the public health and prevent or mitigate a foodborne illness outbreak based on conduct or conditions associated with a farm that are material to the safety of the food produced or harvested at such farm.
This is the potential “smoking gun” of FSMA. It can work, so long as the circumstances that would trigger this clause, the procedures for its implementation, and definitions of terms like conduct, conditions and material, are clear, appropriate and fair. Unfortunately, the proposed rules leave these concerns mostly to chance and interpretation by certain authorized persons in the future. There is also a huge risk, or even likelihood, that such language would be applied to particular commodities or classes of farms on an arbitrary basis due to misinformation, preconception or even prejudice. This is not good enough and must be addressed in the process of determining final rules. Otherwise, this language might just as well be called the “whatever they choose” clause. As it is, at least one of the major consumer advocates involved in the debate has called it the “one strike and you’re out” clause.
Consumer groups are publicly expressing their worry that the THA provisions might end up “swallowing the rule,” but we need to be very concerned that the material conditions language could easily swallow the exemptions, and with them all chances that FSMA will succeed in improving the ultimate safety, and security, of the food supply at all. If you’re a farmer and/or small food processor, and not paying attention to this process and understanding its implications, you may be destined to discover the meaning and importance of what’s going on only after it’s too late to do anything about it.
I am even tempted to say “Help! Take action right now, to prevent our government from shutting down small farms, outlawing farmers markets and the growing of backyard tomatoes!” But then such fear mongering of our own might detract from the reality that the current transformation in food safety regulation – the biggest in 75 years – really, really matters, and deserves the earnest attention of all farmers, and anyone who cares about where their food comes from and how it is grown.
Those wishing to follow the ongoing work and response regarding FSMA should sign up to receive updates on this blog, in the appropriate section of the margin to the right of this post. You may also wish to sign up for updates at the website for the National Sustainable Agriculture Coalition, where you will find more detailed information about the legislation and proposed rules. Those wishing to read the full text of the law and proposed rules can access them at FDA’s FSMA web-page – you can sign up for updates there as well. Useful information will also be posted at the PASA website from time to time.