Back when the Food Safety Modernization Act (FSMA) first started to move through Congress in 2009, none of us really anticipated that we’d be fighting over four years later to preserve the very idea of a “farm” as defined in the new law. Well, almost none of us expected this, except perhaps my very dear friend Russell Libby, then executive director of the Maine Organic Farmers and Gardeners Association (MOFGA). In an email directly to leaders at the Food and Drug Administration (FDA) with whom we were negotiating, Russell decried what he called the “broad and inclusive definition of ‘facility,’ and relatively narrow sense of what constitutes a ‘farm,’” contained in the language of the Bioterrorism Act of 2002 (BTA), upon which FSMA would rely for such definitions.
Russell is now gone, a victim of the cancer that took his life a year ago this December. There will always be a hole left in the lives of those who knew him, and also now this lingering feeling that he could see ahead, to the potential disappearance of farms as we know them, both literally and in the figurative sense as part of the laws of our country. And as the newly-extended comment period closes this week (Friday, November 22) for comments to FDA on FSMA, there is almost certainly no higher priority to any of us than that the definition of a farm ends up in the regulations as richly diverse and comprehensive as we have always known it to be. Please take one more look, and help us get this right.
When farmers first started hearing about the new food safety legislation, there was a general sense of panic among many of them who farm in a sustainable manner and serve mostly local markets. Their concerns eventually became codified in the so-called Tester-Hagan amendment to FSMA, which offered some measure of “exemption” from the full brunt of the new law and the regulations that were sure to follow. But the sustainable farming community was not primarily looking to be exempted from good food safety practices, or even to be overlooked as some kind of special exception due to the size of their operations (many of which actually classify as “large” farms by USDA standards). The biggest concern of all was regarding the differential definitions of “farm” and “facility” that had been unnecessarily vague and confounded in the BTA.
In other words, from the beginning of the FSMA process, farmers have been more fearful of being branded a “facility” by the FDA, necessitating federal registration, further regulation and likely expense, than any other aspect of how FSMA would affect their farms (other concerns have, of course, come to light along the way). Nothing we heard in those early days of the legislative process, or since, has put this concern to rest, or even offered any real comfort to those who fear losing their identity as farmers by the time FSMA is fully implemented. FDA’s inability to deal with this issue through the legislation, the proposed rules, or in public meetings, has allowed a negative situation to fester that has complicated the entire process for farm advocates and the FDA alike. Frankly, it’s enough to convince one that the confusion in the law and regulations could well be intentional.
At the heart of farmers’ concerns is the possibility that activities commonly carried out on farms for decades – or centuries even – would suddenly put them into the same category as some of the largest food processors now dominating the food system and representing the biggest food safety risks. To avoid this, FDA would need to understand that farms are first and foremost part of a community, whether in rural or urban settings. This community is comprised not only of the farm-to-consumer relationships that are so celebrated these days (as with USDA’s Know Your Farmer Know Your Food campaign), but also – and more traditionally speaking – farmer-to-farmer relationships that are characterized by working together in the field, marketing of products with cooperative strategies, and above all else, coming to each other’s aid in times of need (think of the barn raisings made popular, but by no means invented, by the Amish).
There is really nothing more fundamental to the nature – and definition — of farms than this tendency to pool efforts within the community toward common goals, whether it involves getting food to market or building a new school or church to serve the citizens of that community. Farmers plow the land together; they plant and cultivate together, sharing equipment whenever possible; they harvest together, which is often a time of celebration; and they pack, hold and transport food to market together, as part of the very nature of what a farm is, existing within the context of a community of other farmers and consumers as well. Most importantly, it must be recognized that this type of farm definition is not a thing of the past, but is quickly gaining in popularity, even rather dramatically since FSMA began to take form in 2009, as a new administration in the White House and USDA readily acknowledged right away.
Problem is, by the FSMA rules as currently proposed, many of these routine gestures of cooperation that have always been part of what’s in the common idea of a “farm,” could now throw an agricultural enterprise, no matter the size, into the category of being a “facility.” This is particularly true of marketing activities where farmers work together to harvest, hold, pack and transport food grown on their farms on its way to a “qualified” and very grateful end user. And any operation defined as a “facility” is obligated by the proposed FSMA rules to implement either “improved” Good Manufacturing Practices (for those qualifying under Tester-Hagan), or a more stringent set of procedures known as the Hazard Analysis and Risk-Based Preventive Controls (HARPC), which is reminiscent of the HACCP program imposed on meatpackers several years ago. I don’t think I need to remind folks what the negative effects of HACCP have been on the availability of small and very small USDA-certified meatpacking facilities in the country, or the livestock farmers who depend on them. HARPC could easily have the same impact on the availability of marketing options for produce farmers, and value-added enterprises that are almost ubiquitous on direct-marketing farms across the country today.
I submit that the fact it may be difficult for FDA to differentiate between the type of “traditional” community-based farm as described above, and modern practices within an increasingly vertically-integrated food processing industry, is not a problem for which community-based farmers should have to pay the price of having the identity of their farms confused as facilities instead. This community-based reality must be included among the organizing principles FDA is proposing to use in defining farms as a priority. Since the passage of FSMA, we have already witnessed the incursion of FDA inspectors on farms firmly rooted in their communities, and the inspectors’ tendency to see a “facility” wherever they look. If this is not resolved, there will likely be grave consequences for the success of FSMA over the long haul in terms of the support it gets from either farmers or members of the general public increasingly concerned about identifying the sources of their food.
It is tempting to view this whole definitional dilemma as an unintended consequence of vague wording in the BTA and confusing descriptions used in the proposed FSMA rules. But as is so often the case these days, there is a more sinister interpretation begging for consideration as well. What if it were the intent of the FDA – or the food industry more broadly speaking – to submit EVERY morsel of food produced in the country to a HARPC “control point” step before being consumed by the general public?
That would mean the final step before any food enters commerce would have to be considered a facility, subject to the full brunt of FSMA regulation. That would mean every direct-marketing farm operation could necessarily be defined as a facility. And ultimately, that would mean my good friend Russell Libby could not have been more prescient, as he often was, in his concerns for the future of what we all know and love about farms.
Can you take one moment in the remaining time to let the FDA know what they must get right about what’s in a farm, that it all starts with a community, and people working together for the common good? If so, Russell and I both thank you, from the bottom of our hearts.
* * *
Whether or not you have already submitted comments to FDA about the proposed FSMA rules, there is still time to write, asking them to get the definitions of “farm” and “facility” properly differentiated, and to preserve the community-based nature of farms in general. You can also ask them to issue a “second set of proposed rules” as a top priority, so the public has another chance to comment before the rules become enforceable regulations. To learn more about the issues, and how to comment, please visit the PASA website or that of the National Sustainable Agriculture Coalition today.