Monday, March 23, 2009

Food Safety Modernization Act - Another Look

Since I posted my take on the Food Safety Modernization Act - H.R. 875, I have been drawn into a number of conversations about the bill and what it means or does not mean for small farmers. In these conversation a fact sheet put out by Food and Water Watch has been referred to often, either by people who support the bill or people who work for Food and Water Watch. Their reading of this bill and mine differ on a few points. Here is what Hayley, an employee of Food and Water Watch, posted in the comments on the Garden Rant discussion of this bill.

Hayley said...

Hello everyone,

My name is Hayley and I work for Food and Water Watch. In the posts, Jill, mentioned our fact sheet, well I think it's important to clear up the bill, so I'm going to post it here. Our policy experts have read and interpreted the entire bill and basically there are 6 food safety bills being circulated in Congress, but only this one seems to be receiving a lot of attention. H.R. 875 – would overhauling the totally dysfunctional Food and Drug Administration. But the rumor mill has this legislation pegged as something entirely different. Now it’s time to set the record straight. Here are a few things that H.R. 875 DOES do:

- It addresses the most critical flaw in the structure of FDA by splitting it into two new agencies –one devoted to food safety and the other devoted to drugs and medical devices.
- It increases inspection of food processing plants, basing the frequency of inspection on the risk of the product being produced – but it does NOT make plants pay any registration fees or user fees.
- It does extend food safety agency authority to food production on farms, requiring farms to write a food safety plan and consider the critical points on that farm where food safety problems are likely to occur.
- It requires imported food to meet the same standards as food produced in the U.S.

And just as importantly, here are a few things that H.R. 875 does NOT do:
- It does not cover foods regulated by the USDA (beef, pork, poultry, lamb, catfish.)
- It does not establish a mandatory animal identification system.
- It does not regulate backyard gardens.
- It does not regulate seed.
- It does not call for new regulations for farmers markets or direct marketing arrangements.
- It does not apply to food that does not enter interstate commerce (food that is sold across state lines).
- It does not mandate any specific type of traceability for FDA-regulated foods (the bill does instruct a new food safety agency to improve traceability of foods, but specifically says that recordkeeping can be done electronically or on paper.)


HOWEVER Several of the other bills include provisions that should worry small farmers – like H.R. 814, which calls for a mandatory animal identification system, or H.R. 759, which is more likely to move through Congress than H.R. 875 and calls for electronic recordkeeping on farms and registration fees for processing plants.

I hope everyone found this helpful!

Hayley says the bill "- It increases inspection of food processing plants, basing the frequency of inspection on the risk of the product being produced". What she doesn't mention is that if you "process" (as in cut and bag, or otherwise package food or produce) you are reclassified as a food establishment and subject to these inspections. Many small farms do this. Most large farms do not. She also points out that this bill "extends food safety agency authority to food production on farms." Food and Water Watch think this is a good thing, and it may be for large commercial farms. The requirement to "write a food safety plan and consider the critical points on that farm where food safety problems are likely to occur" (and submit it for review, approval, and inspection, I'm sure) is a good thing for giant producers of some kinds of produce, but would be burdensome and unnecessary for small farms.

Hayley goes on to point out things the bill "does not" do. Some of these are true as far as the wording of the bill is concerned (except that if you process anything on farm you instantly become a food establishment and subject to all the requirements of this law.) Other things, like "- It does not call for new regulations for farmers markets or direct marketing arrangements." are true. The bill isn't aimed at the marketing methods, and contains nothing about farmers markets or direct marketing. But, (9) CATEGORY 5 FOOD ESTABLISHMENT.—The term ‘‘category 5 food establishment’’ means a food establishment that stores, holds, or transports food products prior to delivery for retail sale. the small farmer taking his bags of lettuce to market and holding them there for sale could also fall subject to the inspection and requirements for a Category 5 Food Establishment. That could mean refrigerated trucking, refrigeration at the market, etc. This would have a huge impact on small farms and small Farmers Markets.

She says "
- It does not apply to food that does not enter interstate commerce (food that is sold across state lines)." I didn't find this anywhere in the bill.

On the topic of traceability Hayley says the bill will not "establish a mandatory animal identification system." and that "- It does not mandate any specific type of traceability for FDA-regulated foods (the bill does instruct a new food safety agency to improve traceability of foods, but specifically says that recordkeeping can be done electronically or on paper.)" But the bill states "SEC. 210. TRACEBACK REQUIREMENTS.

(a) IN GENERAL.—The Administrator, in order to protect the public health, shall establish a national traceability system that enables the Administrator to retrieve the history, use, and location of an article of food through all stages of its production, processing, and distribution.

(b) APPLICABILITY.—Traceability requirements under this section shall apply to food from food production facilities, food establishments, and foreign food establishments." Seems like a traceability requirement for all food to me.


I still think this bill addresses some efficiency issues that need to be looked at. But it is written with an eye for large producers. The regulatory part takes into account their needs and the problems associated with them. It does NOT consider small farms at all. That is a different system and needs to be addressed in different ways. This bill as it is written has the potential to severely damage the small farm and local food movements. Not from maliciousness, but from ignorance of the issues at this level.

4 comments:

Alan said...

Aidan Kallas added the following to this post on another site.

H.R 759 that Haley mentions in the article you include here has also bubbled up in discussions happening on the Community Food Security Coalition's list serve. I'm going to have a look at this character and encourage yall to check it out as well. It's available at GovtrackUS at this address
http://www.govtrack.us/congress/billtext.xpd?bill=h111-759

Happy reading! I have also included some of the excerpts you had trouble finding in H.R 875 :)

As to the bill applicability to goods involved in interstate and not intrastate trade:
SEC. 406. PRESUMPTION.
In any action to enforce the requirements of the food safety law, the connection with interstate commerce required for jurisdiction shall be presumed to exist.

As to the bills consideration of small and mid-sized businesses:
SEC. 201. ADMINISTRATION OF NATIONAL PROGRAM.
(c) Program Elements- In carrying out the program, the Administrator shall--
(12) provide technical assistance to farmers and food establishments that are small business concerns (meeting the requirements of section 3(a) of the Small Business Act and the regulations promulgated thereunder) to assist with compliance with the requirements of this Act.

You can see it and follow his links here http://connect.bioneers.org/profiles/blog/show?id=1233360%3ABlogPost%3A53232&page=1#comment-1233360_Comment_53242

Alan said...

I responded as follows;

Section 406 is part of Title IV ENFORCEMENT. When it comes to enforcement the federal government is limited to interstate violations. But all the requirements of this law will be enacted at a state level by state agencies. The administrator is required to develop a "PLAN TO IMPROVE FOOD SAFETY CAPACITY AT THE STATE AND LOCAL LEVEL.— (1) GOALS.—The Administrator shall leverage and enhance the food safety capacity and roles of State and local agencies and integrate State and local agencies as fully as possible into national food safety efforts, in order to achieve the following goals:(C) Strengthen oversight of food safety at the retail level. (D) Strengthen the capacity of State and local agencies to carry out inspections and enforce safety standards in food processing establishments, as part of a national strategy and plan to provide an adequate level of inspection and achieve compliance with safety standards in such establishments." So this isn't just about interstate food commerce.

As for the small and mid-sized businesses and the "National Program... to assist with compliance with the requirements of the act". My experience, and that of many small farmers, leads me to worry that these programs will fall far short of the help needed. They will come in the form of "training" and government loan programs. The first being nice but not solving anything and the second being expensive and riddled with requirements and strings that fundamentally change the business we are in. The more I look at this bill the more I find that damages small farms and local/ sustainable food production.

henbogle said...

Thanks so much for taking the time to post reasoned, intelligent, thoughtful analyses of this issue, Alan. I am taking action.

Alex said...

Here is an online petition you can sign to help stop HR 875: http://www.LeaveMyFoodAlone.org

Spread the word!

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