{blogger’s note: Please make sure to read the action alert at the end of this post!}

With the dust still settling from the horrific terrorist attacks on September 11, 2001, the U.S. Congress passed and President George W. Bush signed into law a piece of legislation widely known as the Bioterrorism Act (BTA) in early 2002.  From one perspective this action was a necessary response to one of our greatest vulnerabilities as a nation, a potential attack on our people through the food supply chain. From another, it was an overreach of federal power intended and abetted by corporate America to extend their control over our food system. The actual reality of the situation probably falls between these two perspectives, and in many ways is still very much in play today.

No matter the effects of the BTA, one of the most significant things it did was to draw a distinction between two major categories of activity within any food system by defining a “farm” as a producer of raw agricultural commodities as distinct from a “facility” that transforms those commodities into the variety of processed foods that can readily be observed in any modern supermarket.  The distinction was critical, especially since the stated intent was to exempt all farms from the new regulations facilities would face, beginning with the requirement to register under the federal Food and Drug Administration (FDA), establishing the agency’s authority to regulate the activity of all such facilities.

Enter the Food Safety Modernization Act of 2010 (FSMA), which was intended as an elaboration and extension of the BTA, now with added intent to authorize direct FDA regulation of farms producing raw agricultural commodities consumed by humans or animals with very little or no processing by a regulated facility along the way. The immediate effect of FSMA was to blur the lines between farms and facilities, such that even FDA personnel visiting farms – some of them for the very first time – were apt to see facilities wherever they looked. It was a dramatic representation of the old adage “Give a boy a hammer and everything looks like a nail.”  Even those of us working to improve draft regulations written to implement FSMA were wondering if anything such as a farm, pure and simple, could ever exist, at least according the definition being used in the new regulations.

The good news is that the FDA heard our concerns and made improvements to the farm definition in a re-draft of regulations released in September of this year. Specifically, they now acknowledge that farmers often do handle raw agricultural commodities for each other, which is extremely important to those engaging in collective marketing activities, or just in being neighborly. But there are at least two more important realities of legitimate farm activity that must be acknowledged in the regulations before FDA is done with them, as follows:

• The current reference in the regulations to farms being situated in “one general physical location” must be removed since farmers commonly are involved in managing parcels of land that are not contiguous and are apt to be deemed as separate farms under the rules the way they are now written. This is true whether in an urban, suburban or rural setting, and no matter the size of the parcels. Relatively few farms these days are located on a single, intact piece of land. Insisting that they be defined as located in a single general location invites rampant inconsistency in interpretation from one government inspector to the next, and even the possibility of abuse among those who might divide their holdings in such a way as to take advantage of allowances in the law intended for smaller landholders.

• Likewise, the current draft of regulations defines a farm as being “under one ownership,” which can lead to similar misinterpretation and unnecessary narrowing of the reality of what a farm can, and often should be. Collaborative and cooperative ownership structures of all kinds exist, ranging from the most traditional farm families to modern strategies for aggregating raw agricultural commodities for efficient delivery to both direct and wholesale markets. So long as such structures are majority owned and controlled by the farmers who benefit directly from sale of products originating on their farms, they should be considered as extensions and therefore part of each of the farms involved.

You might ask “What’s at stake here?” and it does take a little while for the reality to sink in completely. I acknowledge that there is a difference between the growing and marketing of raw agricultural commodities, and the processing of food by which those commodities are transformed into something completely different, with the latter legitimately triggering the use of the term “facility” under the law. But if we rely on a sentimental idea of a farm as located in one general location and operating mostly in isolation from other farms, then we will be apt to see many if not most modern farming operations, from innovative urban farms to traditional, multigenerational operations in rural areas, defined as facilities as well and put under the thumb of the most onerous FDA regulations intended mostly for large food processing plants.

In case you are still missing the significance, the beloved “food hubs” that are popping up all over the country, providing new market opportunities for smaller farms working together and new sources of healthy, locally grown food for schools, hospitals and other commercial accounts, would likely all be deemed “facilities” by the rules as they are now proposed, and threatened with costs of compliance that could put many of them out of business forthwith. Many of the most innovative Community Supported Agriculture operations out there could face a similar fate. If this happens, then we could indeed look back at the BTA with an eye to interpreting its intent clearly as that of quashing innovation on farms and preserving market share of big companies for whom compliance costs are just a proverbial drop in the bucket.

But getting this farm definition right is not just all about protecting local food systems serving those of us in the sustainable farming community.  It is also about preserving the idea of “farming” itself, and deflecting the looming corporatization of all food systems. In this case, and throughout the entire FSMA debate beginning in early 2009, sustainable farmers have been standing up for all farmers everywhere, which is a watershed moment in the history of agriculture.

If, as we often hear these days, a corporation can be considered a person under the law, then a collective of independent and innovative farmers, working together to feed their families, their communities and the world, should most definitely still be considered a farm.

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Take Action! Newly proposed food safety regulations are now in their second draft, with a public comment period that ends on Monday, December 15, 2014. All the information you need to submit comments to the FDA is available at the FSMA Action Center maintained by the National Sustainable Agriculture Coalition (NSAC).  There you will find not only information about the farm definition, but also other critical issues like agricultural water, manure and compost use on farms, supplier verification, and many more. When ready to comment, you may go directly to the government portal for the Produce Rule or Preventive Controls Rule. NSAC has also provided clear instructions and comment templates for both Farmers and Consumers to use, which will be a tremendous help in organizing your comments.

The FSMA rules in general, and the pertinent definitions in particular, will affect the way farms operate for several decades into the future, likely beyond the lifespan of all active farmers today. Please do not hesitate to let your voices be heard at this critical juncture in the history of farming!