Sometime early in 2014 the rules governing the first major overhaul of U.S. food safety regulations in more than 70 years, known as the Food Safety Modernization Act (FSMA) will take effect. The law calls for new standards in the growing and harvesting of fruits and vegetables and new food safety measures for facilities that process foods ultimately eaten by us.
Their impact on farms, including the smaller farms that foodservice operators look to for their buy-local efforts, could be dramatic and trend-altering. Or, they could merely make our overall food supply safer, without any significant effect on the sustainability movement.
Operators who have been following the process being carried out by the Food and Drug Administration (FDA) appear to be split over what they believe the effect of the new rules will be. Some believe that the FDA exemptions will protect most small farmers, while others think that the rules could be onerous enough to lead to the demise of some growers.
In one camp are foodservice professionals like Mark Miller, director of dining services at Skidmore College, in Saratoga Springs, N.Y. Miller feels the proposed rules will “simply make farmers more accountable for safe food.”
On the other side are operators like Jim McGrody, director of food and nutrition at Rex Healthcare, in Raleigh, N.C., who sees things differently. “I do believe it will hurt smaller farms and the farm-to-fork program,” McGrody suggests. “There seem to be a lot of inspection fees, etc., in this new law that would ultimately either drive their selling prices too high for consumers or put them out of business.”
The operative word, of course, is “seem.” With proposed rules still in the comment phase, many operators are like William Claypool, executive chef at Vanderbilt University, in Nashville, Tenn. They remain on the fence, either unsure of the potential impact or simply willing to take a wait-and-see attitude.
“I’ve not been following [FSMA] closely yet because it’s still in the rollout phase and it hasn’t impacted any of my suppliers yet,” Claypool says. “I’m not sure how much it will affect our farm-to-fork efforts since most of our local suppliers deal in produce that is less frequently deemed as high-risk product.”
But after two years of writing and rewriting rules to satisfy the requirements of the law and gathering comments from interested parties, the FDA may be close to answering the questions Claypool and others have.
Setting the stage
The FSMA was passed by Congress in 2010 and signed into law by President Obama in January 2011. The purpose of the law was twofold. One was to enhance the FDA’s ability to guard against bioterrorism. The other, more valuable reason, was to give the agency a stronger role in protecting Americans against foodborne illnesses, which, according to the Centers for Disease Control and Prevention (CDC), affect an average of 1 in every 6 Americans and kills about 3,000 each year.
There are two types of regulations being proposed. One set falls under the Produce Rule and applies to farmers. The other set is in the Preventive Controls Rule and covers the processors, manufacturers, packers and storage facilities of foods for human consumption.
The regulations under the Produce Rule are the ones of biggest concern to supporters of sustainable agriculture and the farm-to-fork movement. The proposed regulations would:
• Set standards and establish rest requirements for water that would or would be likely to come in contact with food surfaces;
• Establish new rules for the use of natural fertilizers—referred to by the FDA as “biological soil amendments of animal origin”—including what can be used, how it must be applied and how long it must be in the soil before crops can be planted;
• Outline how farmers must handle farm animals and monitor for wild animals to guard against animal waste contaminating crops; and
• Set stricter policies regarding the health and hygiene of farm workers.
Farms growing sprouts would fall under separate, more stringent, rules because the nature of the growing process—warm, moist and nutrient-rich conditions—makes sprouts more susceptible to pathogens.
The new rules would be effective 60 days after they have been published and compliance would be required within two to five years, depending on the rule and the size of the farm.
All rules would be in effect for any farm that has generated more than $500,000 in revenue annually over the past three years. According to the latest data from the U.S. Census Bureau, that would cover less than 9% of the 2.2 million farms in the U.S. However, those farms account for about 63% of the country’s total agricultural sales, according to the U.S. Department of Agriculture. The Census Bureau defines a farm as “any establishment which produced and sold, or normally would have produced and sold, $1,000 or more of agricultural products during the year.”
According to the FDA, there would be exemptions to the proposed rules. Crops, grains and produce that typically must be cooked before they are eaten, such as potatoes, would be exempt from the regulations. As for growers, any farms that have generated less than $25,000 a year for the past three years would be exempt, and any farms with annual sales of less than $500,000 for the past three years also would be exempt provided they sell their produce within the same state or within 275 miles of the farm.
The proposed rules have been promulgated in order for concerned parties to offer their comments. The comment period was scheduled to end Nov. 15, although with the partial shutdown of the federal government on Oct. 1 it was unclear whether that deadline would be extended. Because of the shutdown, FoodService Director could not reach FDA officials for clarification in time for publication.
What’s the impact?
Many Americans no doubt believe the proposed rules are long overdue. According to a recent study by Multi-sponsor Surveys Inc., consumer confidence in food safety is declining at the same time that Americans are generally looking to buy more fresh and/or unprocessed foods. In the survey of 2,100 adults, only 17% said they had a “great deal” of confidence in food safety, compared with 25% in 2008.
Their fears are not without merit. Since FSMA became law in 2011, there have been at least 20 outbreaks of foodborne illnesses, according to the CDC. The most notable of these was the listeria outbreak in 2011 that sickened nearly 150 people in 28 states and led to the death of 33. The cantaloupes linked to the outbreak were traced to a Colorado farm, whose owners have been charged with introducing adulterated food into interstate commerce.
“I believe FSMA is a good thing,” says Cathy Graham, foodservice director for the Pewaukee School District, in Wisconsin. “With the ever-increasing foodborne illnesses that arise from produce, something has to be done. There have to be some measures in place to be sure that the produce we are receiving has been monitored through the growing, harvesting and distribution.”
Skidmore’s Miller agrees. “I do support the government’s efforts on improving food safety because of the 1.75 million [people sickened by] foodborne illness outbreaks in the past year,” he says.
Al Caldiero, director of food and nutrition at the University of Rochester Medical Center, in New York, says he supports “any effort that improves food safety. It seems we’ve experienced some very new and different outbreaks in the past 10 years.” One possible explanation he suggests: “Competition to get to market first is causing growers and manufacturers to take shortcuts.”
Even farm groups seem to support the intent of the regulations. For example, the Leafy Greens Marketing Agreement (LGMA) is staunchly behind the new rules. “Leafy greens farmers fully understand that they grow a product that is consumed in large quantities by people at home and in restaurants, and it is frequently eaten raw,” the LGMA said in a statement. “Leafy greens absolutely must be safe.” The LGMA says that, in preparation for the new rules, it has been putting into place rules specifically for its members that would meet or exceed the standards proposed by the FDA.
But while no one really disputes the need for better food safety regulations, the debate centers around the specific rules being proposed, how they will be enacted and who will be the most negatively impacted.
For instance, based on the exemptions being proposed by the FDA, it would seem that most farms that operators might consider being part of the local and sustainable agriculture movement would be protected. But the National Sustainable Agricultural Coalition (NSAC) says it has major worries about FSMA.
“FDA’s food safety regulations will impact the agricultural landscape for decades to come,” said Brian Snyder, director of the Pennsylvania Association for Sustainable Agriculture (PASA) and co-chair of NSAC’s Food System Integrity Committee, in a recent NSAC release. “At stake in these regulations is nothing less than the ability of family farmers and local food businesses to supply burgeoning consumer demand for fresh fruits and vegetables, as well as value-added products like artisan cheeses and other preserved farm products.”
NSAC has been active in providing guidance to farmers. NSAC has created a top 10 list of the problems it sees with the new regulations. Among them are the cost, the danger of over regulating the industry, the possibility of reducing consumers’ access to fresh foods, and the potential threat to wildlife and farm conservation efforts.
“The agency needs to listen carefully to the concerns of farmers and fix the regulations so that they allow farmers to use sustainable farming practices, ensure that local food and farms grow and thrive and provide options that treat family farmers fairly,” says Ariane Lotti, assistant policy director for NSAC. “As currently written, the rules will put many farms out of business, reduce the supply of fresh, local produce in places like schools and hospitals and increase the use of chemical rather than natural fertilizers.”
The United Fresh Produce Association (UFPA) has also asked the FDA to go slow on implementing the regulations. In an April 11, 2013, letter to Margaret Hamburg, commissioner of the FDA, the organization, which represents more than 85 produce growers’ associations, urged the agency to extend the original comment deadline—which the FDA did; the original deadline was May 16. But it also asked the FDA to promulgate a second draft of the rules once it makes revisions to the original regulations.
Dan Benishek, (R-Michigan), has echoed the cry of the UFPA by calling on the FDA to conduct an additional cost and scientific analysis of the effects of the new rules. His proposal was included in the House version of the Farm Bill that was passed last summer.
Jamie Moore, sustainability coordinator for the Eat ‘n’ Park Hospitality Group, the Homestead, Pa.-based parent of Parkhurst Dining Services and Cura Hospitality, believes that the rules need to be better thought out in order to protect small farmers. On balance, Moore believes that “there are things that will make it very difficult for small, sustainable farms to operate.” However, he adds that there are some good measures in the proposed rules, particularly regarding water quality and testing.
“Water is the most important piece, I think,” Moore says. “If anything stays, it should be that.”
However, even water testing rules may be problematic, according to some scientists. In an article published in the Montpelier Bridge, in Vermont, Vernon Grubinger, a professor at the University of Vermont and a produce specialist, noted, for example, that E. coli levels in water can fluctuate from one day of week to the next. In addition, he said, the FDA will be using E. coli levels for recreational water because there currently is no standard for the bacteria in irrigation water.
“There’s no clear evidence that that makes sense,” Grubinger told the Bridge. “From week to week the counts go up and down like crazy. So farmers will spend a lot of time and money for tests that don’t make sense.”
The monetary and labor costs
Another worry farmers have is the cost of implementing the new rules. John Turenne, founder and president of Sustainable Food Systems LLC, a company that helps link operators with farmers, says that “the percentage of costs to the overall operating expenses of these small farms is significant; 6% or higher, as opposed to a 10,000-acre farm, where they could be just a drop in the bucket.”
According to the NSAC, the FDA estimates that farms with sales of up to $500,000 a year will spend 4% to 6% of their gross revenue to comply with the proposed regulations. NSAC says that the average net income for farmers across the country in 2011 was only 10% of sales.
“The other concern,” Turenne says, “is that some of the logistical paperwork and hoops they will have to go through just in water testing, that the cost to do that and the time and training it will require, could have some of these small farmers saying, ‘I don’t know if it’s worth it.’”
The irony in all this, Turenne says, is that while the new law could have the biggest impact on smaller farms, they are not the biggest contributors to the problem.
“Everybody is concerned about food safety. It is critically important,” he notes. “But if you look at the fruits and vegetables [that have caused] the outbreaks in the last 10 years, you and I know it’s the large factory farms that have been the biggest [sources] of these outbreaks.
“Let’s hope that this law does address those. But the collateral damage, you might say to this [law] being so broad is that the local and sustainable food movement could be significantly affected.”
Turenne suggests that some farmers might attempt to “fly under the radar,” operating their businesses as they always have and hoping that they don’t get caught.
“Worst-case scenario,” he says, “is that we could see some small farms close up and go away or get folded into some bigger farms that will become bigger yet. But I’m optimistic that this won’t happen. I’m optimistic that there is going to be enough pushback that common sense will prevail.”