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Church Brothers/True Leaf Recalls, Then ‘Unrecalls’ Spring Mix/Arugula After Testing Mishap

There was a recall at Church Brothers/True Leaf Farms and there didn’t have to be one.

This is a story as distressing as it is sad. Millions of dollars were wasted for no reason at all. Good people struggling to do the right thing while the industry struggles to know the meaning and importance of various test results.

It is a story of petty jealousies playing out, while substantive work was waiting to be done and it is a story of heroes who knew the questions to ask and others who gave honest answers when they didn’t have to.

It is also a story filled with lessons we are still learning in produce.

The story started with Jack in the Box, a company renowned for its food safety systems and whose Sr. Vice President, Quality and Logistics, David Theno, we praised in the midst of the spinach crisis.

As per the company’s request, for about two months, Church Brothers/True Leaf has been testing its spring mix for Jack in the Box. On Saturday, July 21, 2007, Church Brothers had done seven tests, and at 3:30 AM, on July 25, 2007, it got word that one of the tests was a presumptive positive for salmonella. Final results wouldn’t be available for another three days.

Then the management team sprung into action:

The owners and executives immediately called their customers notifying them of the test results and had them hold product at their warehouses and withdraw products from that day’s production that could already be at their customers’ stores or restaurants.

True Leaf researched the lots and found that most of the lots in the run on Saturday were also in the runs on Monday and Tuesday.

The owners and executives told their accounts to hold all Monday and Tuesday’s product until they could get the results of the next test.

Then the staff at True Leaf went back and checked all the lots tested on Saturday to see how many lots were also packed earlier in the week.

As they studied the matter, it was found that some lots were and some were not packed earlier in the week. Bottom line: True Leaf announced a recall of all spring mix and arugula produced from July 19 through July 25.

The owners and executives consulted with food safety experts, lawyers and each other and concluded this was the only option.

Several people told the ownership that the only product that tested positive was the Jack in the Box product and, thus, that was all that was necessary to recall. Others told the ownership that since it never had a positive before Saturday, July 21, that should be the company’s cut-off date.

These owners and executives wanted to do the right thing and couldn’t live with anything less, so they recalled everything that could possibly be affected.

Over the signature of David Gill, one of the trade’s true luminaries, True Leaf Farms issued a public recall:

True Leaf Farms, LLC Announces
Precautionary Withdrawal of Finished Spring Mix
and Arugula from Marketplace

No Reports of Illness or Problem, but Internal Tests of Numerous Samples Indicated Potential Presence of Salmonella in One Sample

Salinas, CA (July 24, 2007) — True Leaf Farms, LLC is contacting its wholesale and retail outlets to request they remove certain batches of spring mix and arugula from store shelves and preparation counters as a precautionary step.

During a series of regular internal tests known as ‘test and hold’, one of the many samples taken indicated the possible presence of salmonella, a human pathogen that may pose a potential health risk. To exert the utmost caution, all cases of spring mix and arugula produced between July 19 and July 25, 2007 are being withdrawn. There have been no reports of illness or problems connected to this product.

“There simply can be nothing more important than consumer safety,” said Jared Gill, Plant Manager of True Leaf Farms. “Withdrawing all of the product, and not just the one lot found with a potential problem is simply the right thing to do. It is essential we do all we can to protect our consumers.”

Appropriate authorities have been informed and consulted about the precautionary withdrawal and are being kept updated on developments.

Church Brothers Produce, which handles the sales and marketing for True Leaf Farms, is contacting directly all outlets who are known to have received shipments of the finished product from the affected dates.

The situation can only be described as a mess. It was a complicated and extensive recall covering eight different varieties of spring mix from 16 different lots.

The financial liability would be substantial. There would be freight and dumping charges. Plus, of course, the loss of the actual sale.

The process took a full day to unfold and that gave rumor and half-truths time to spread.

In the midst of the crisis, the owners and executives had to deal with the customers who wanted information faster than it could be produced or distributed, customers who had somehow determined, often incorrectly, that someone else got different information or information before they did and were thus peeved. Owners and executives tried to reach out and talk to both their day-to-day contacts and CEO’s at customer organizations and explained the sequence of events that took place.

We’ve spoken with several customers of True Leaf Farms and, in the end, all seemed satisfied as they realized the effort was sincere and focused on doing the right thing.

Then it might be said that God sent two angels. They were unlikely angels but that is how it turned out. Winnie Kovac heads up the food safety effort at Trader Joe’s. She had done no business with True Leaf Farms, but she did business with a customer of True Leaf and she showed up with a consultant in tow, Melissa L. Calicchia, a consulting microbiologist.

The two women understood the science, weren’t panicked at a presumptive positive for salmonella and knew that the lab should be able to give some indication by now as to how the confirmatory test was turning out.

They knew the questions to ask and the people to ask them of, and within a few minutes it became clear that the original test was contaminated by a lab sample and that the whole recall was unnecessary.

So the owners and executives started working the phones again, calling customers and explaining what happened and that the “recall” had to be “unrecalled.”

Of course, by that time much of the product was already destroyed and few customers would feel comfortable using it anyway — so the damage was done.

The short-term story of this incident is that David Gill, Tom and Steve Church and the ownership and executive teams at Church Brothers and True Leaf Farms performed precisely as the industry would hope they would. They didn’t cut corners, they didn’t hedge their bets, they just did the right thing.

No need to put them on pedestals; they did exactly what everyone is supposed to do in such a situation — but not everyone would.

It was a painful couple of days and the bills will keep coming in, perhaps the owners can take some solace in that this horrible event does offer the broader industry some valuable lessons:

First, this business of testing finished product and releasing the product before the test result is back is a disaster waiting to happen. There are new 12-hour salmonella tests being required by McDonald’s and already in use by companies such as Earthbound Farms. They should become the industry standard, and the practice should be test and hold — release only after the results are in. Most product doesn’t ship out the instant it comes off the line, so this 12-hour test is not going to pose many problems.

Second, and this is probably more important than anything… we simply have to find a way to reduce lot sizes and processing batch sizes so as to reduce the impact of any recall. Although it is laudable that True Leaf recalled all the spring mix and arugula produced over six days, thus covering all potential exposure, it would have been better if the potentially contaminated product could have been limited to one day’s production or less. This is where traceability is breaking down. All our records do little good if they don’t help us narrow down the affected product.

Third, too much research has to be done. Something rolls off the line at 3pm and we should be set up so that within minutes, not hours, we know exactly what other product could be affected. We need to practice mock recalls and be able to execute in minutes, not hours or days.

Fourth, we have to recognize that if we test a lot, we are going to find a lot, so we need to understand better what these tests mean. What are the odds that a presumptive positive will be confirmed positive? If some tests are too uncertain — and on salmonella, we have heard almost all the presumptive positives reversed on the final test — those tests may be too unreliable to use.

Fifth, better crisis management plans are needed. Not in the sense of PR responses but in the substantive sense that decisions need to be made in advance of how we will respond if various test results are produced. In other words, we want to reduce the decision-making required under crisis conditions both to improve the quality of decision-making and to speed up the process.

Here at the Pundit, we just want to say that we received nothing but cooperation from Church Brothers and True Leaf. These situations are never easy and the temptation is to run and hide; we commend the principals and executives for being willing to share their story in the hope that the industry can learn a lesson that may help us all in the future.

It takes an exceptional company and exceptional people to think of the best interests of the trade in the midst of their own problems.

Late Addition

After we published the piece above, we received the official notice that the recall was unnecessary as the “presumptive positive” test result was a result of a laboratory contamination and thus the recall was being withdrawn:

To: Our Valued Customers

From: Church Brothers Produce and True Leaf Farms

Date: July 26, 2007

Re: Spring Mix and Arugula

The Spring Mix and Arugula products that True Leaf Farms, LLC voluntarily withdrew from the marketplace on July 25, 2007, have been confirmed free from contamination.

The Spring Mix that had tested positive for the potential contamination of Salmonella is now believed to have been tainted by laboratory error. On Thursday July 26th, 2007, Silliker Inc., a Northern California Laboratory, verbally notified True Leaf Farms the previously reported PCR positive result for Salmonella in spring mix was probably erroneous. They offered the following evidence.

  • The type of Salmonella isolated was identical with the laboratory positive control strain, indicating laboratory contamination was the most likely cause for the positive result.
  • The laboratory positive control strain is an extremely rare strain not normally found in foods, further reflecting laboratory error led to the positive finding.

Furthermore, new test results on the same product batches from another independent lab show no indication of contamination. All tests were negative. Based on the new information from Silliker about the erroneous result and the new independent test showing no contamination, True Leaf Farms, LLC is confident the Spring Mix is not adulterated in any manner and does not need to be withdrawn from the marketplace, as previously thought. The FDA and the California Department of Food and Agriculture have been notified of our actions.

True Leaf Farms and Church Brothers reacted to this situation with consumer protection in mind. Even though this “positive” report turned out to be an error, we believe withdrawing all of the product was still the right thing to do.

There can simply be no higher priority than the safety of our customers. We are extremely sorry for the inconvenience it has caused.

This is obviously an enormously embarrassing situation for Silliker — a highly respected lab used by almost everyone. The only good thing you can say is that we are going to give a Pundit Honest Man award to The Silliker official who acknowledged this error. Without a doubt many people would have tried to cover up this matter.

The only goldmine here will be for the lawyers as they try to parse out liability.

Ready Pac President Does Push-ups To Motivate Perfect Food Safety Score

Dennis Gertmenian, the Founder, CEO and President of Ready Pac, sought to motivate his team to achieve the highest levels of food safety. To provide some strong motivation, Dennis made a bet with a plant manager that if his plant would score a perfect 100% on a food safety audit, Dennis would come down to the plant and do 100 push-ups.

The associates at the plant worked hard, everything was in good order, the plant received a perfect score… and Dennis proved himself a man of his word.

He also proved himself to be in pretty good shape as the 60-year-old industry icon, briefly gathering his mental and physical strength in a rocking chair, went right to it.

A medical table with oxygen was set up but never had to be used. The 100 push-ups were witnessed and filmed. And associates who somehow always enjoy seeing their CEOs in potentially embarrassing positions got a powerful message regarding how seriously this CEO takes food safety

One of the challenges facing top executives in the produce industry is how do we get our associates to take food safety seriously? It is not a trivial question. As we mentioned in our much e-mailed piece, A Tale Of Two Buyers, one of the most common issues raised with the Pundit is a gap between executive intentions and line implementation on food safety.

It is a difficult gap to bridge because food safety, though essential to financial success in the long term, is typically an expense in the short term. So any incentive programs that revolve around earnings, gross profits or similar metrics typically provide, even if unintentionally, an incentive to skimp on food safety.

There is always the possibility (some would say likelihood) that if the CEO sends out memos saying that food safety is our top priority but pays out bonuses based on profitability, associates will get the message that maximizing profitability is more important than food safety. So using this type of dramatic event to emphasize CEO commitment to food safety is a smart idea.

Dennis is a pioneer in the fresh-cut arena, but in utilizing this technique of motivating associates, he walks in the footsteps of Sam Walton. Under Sam’s tutelage, Wal-Mart had a long history of top executives issuing “challenges” to associates. Back in 1983, Sam doubted a forecast he had been given that the chain would obtain an 8% profit margin. At the time, Wal-Mart consisted of only 642 discount stores (no supercenters yet) located in the South.

Sam told his team that it was not going to happen: “There’s not a chance, but if you achieve those ridiculous figures, I’ll dance a Hula on Wall Street.”

Profits for the year came in at 8.04% and, so, on March 16, 1984, on the sidewalk in front of the Merrill Lynch office on Wall Street, Sam put on a grass skirt and hung a lei around his neck. With the help of some native Hawaiian dancers, he did his version of the Hula before the national media, and TVs were tuned to the event at every Wal-Mart store to allow associates to watch

Of course, we will never know if Sam really thought the 8% number was unobtainable, or if he thought it only obtainable with the proper motivation.

He did mention that a side benefit to stunts was that it made competitors underestimate Wal–Mart. In speaking about doing things such as the Hula down Wall Street, Sam put it this way: “All of this is more important, and more fun, than you think, and it really fools the competition: ‘Why should we take those cornballs at Wal-Mart seriously?’”

Maybe there’s a message for both associates and competitors in Dennis’s push-ups.

Let’s Get Fat Together

Here at the Pundit, we are having trouble keeping up with the volume of ridiculous research we are sent every day. Actually the research is not ridiculous, but the over-the-top claims made by the researchers often are ridiculous.

We talked about a study on grapefruit and breast cancer here and about consuming extra produce here. Now we have a study purporting to tell us that if we want to reduce obesity in the U.S., we shouldn’t focus on getting people to eat right or exercise, but instead focus on the thinness of their friends:

Obesity contagious among friends, US study shows

The United States is often tagged with the dubious reputation of being the most overweight country in the world. Now a new study shows that obesity is contagious and that it is actually people’s friends who are helping to make them fat.

Over the last 25 years, obesity among American adults has more than doubled, with a third of people now considered extremely overweight. Obesity is at record levels in the US, and some researchers call it an epidemic.

While factors like poor diet and lack of exercise certainly contribute, for the first time research shows obesity is actually contagious, spreading from one friend to another.

Study co-author James Fowler is an associate professor of political science at the University of California in San Diego. “A person’s chances of becoming obese increase by 57 percent if they have a friend who becomes obese,” he said. “Similarly, a person’s chances of becoming obese increase by 40 percent if they have a sibling who becomes obese, and a person’s chances of becoming obese increase by 37 percent if a spouse becomes obese.”

In medical terms, being obese means having a body mass index greater than 30.

Dr Fowler says his study shows siblings, spouses and neighbors have less influence than friends when people decide how much to eat, how much to exercise and how much weight is too much to put on.

“Friends who are hundreds of miles away have just as much impact on a person’s weight status as friends who are right next door,” he said.

“So what this suggests is that it’s not the case that this causal relationship is due to people eating together or exercising together; rather, it has to do with them sharing ideas about what healthy behavior is like.”

The study was done in conjunction with Harvard Medical School.

Researchers analyzed data taken over 32 years for more than 12,000 adults who were already part of the Framingham Heart Study.

Dr Matthew Gillman is the director of the Obesity Prevention Program at Harvard Medical School. “While genes can certainly affect whether one individual is obese compared with another, genes can’t really explain the obesity epidemic, which is a phenomenon of the last 30 years,” he said.

The spread of obesity through social ties could have important implications for how public health officials tackle the epidemic.

Dr Richard Suzman is the director of the Behavioral and Social Research Program at the National Institute on Ageing. “I think what this also does is that it takes what was seen as a non-infectious or non-contagious or non-communicable disease and shows that it’s clearly got communicable factors,” he said.

If the current weight gains continue, 41 percent of Americans will be obese by 2015. If nothing is done, obesity will soon become the leading preventable cause of death in the United States.

This is one of those studies that is almost certainly true and almost certainly doesn’t mean what the researchers want to imply.

Throughout history, the physique that is praised has varied. There was a time that plump meant you were upper-class because you could afford food. Today lean is in, possibly because it means one can afford time at the gym and, maybe, a personal trainer.

So yes, the opinions of one’s peer group is highly likely to influence what people deem acceptable.

This applies to the type of physique that is acceptable and the type of diet that is acceptable. No upper-class woman will tell her fellow ladies who lunch with her that she wants to go out for fried chicken and biscuits.

So in this case, the study may provide a useful insight for Fruits & Veggies — More Matters — - to focus on the social group. If the “acceptable” meal is a salad and sashimi, this may actually change the way people shop and eat.

At the same time, the study doesn’t seem to have rigorously controlled for coincident indicators. It is, after all, also true that friends are often in similar situations, so, for example, it is very common for groups of friends, often about the same age and of similar marital status, to have children at the same time — and having newborns affects one’s time allocations and diet. Friends often transition together from school to work, from urban to suburban living, into retirement.

All this being true does not turn obesity into a “communicable disease.” Indeed it may just mean that friends go through life together, wooing mates together, getting married together, having kids together and, yes, getting fat together.

Pundit’s Mailbag — What Is The Best Model For Industry Lobbying Efforts?

Our piece, COOL Compromise Shows Association Leadership But Battle Scars Remain, brought this well-informed comment from an important industry leader:

I appreciate reading your thoughtful analysis of the COOL issue and its related impacts on the working relationships among United, PMA, and Western Growers.

I disagree with your apparent thinking that the new WGA office in Washington, D.C. is a problem. Other grower/shipper-based produce organizations already have policy offices in Washington, D.C. — USApple and the National Potato Council, to name two.

While United does a good job of balancing interests from grower to retailer, at times an undiluted message needs to be delivered by growers and shippers. In my experience, it is often the case that an issue, such as a foreign pest invasion or a specific produce grade standard, might only be of real interest to a given commodity or region. In these cases, if you are to gain the attention of federal policymakers, you need to be front and center where the decisions are being made.

Retailers have tremendous market power. They have many ways to influence federal policy, such as through other associations like FMI or by directly influencing their suppliers. And it is no surprise that the retailer point of view is occasionally at odds with that of the grower/shippers.

Whatever the outcome of any merger talks between PMA and United, I think the grower/shipper groups will want to continue to have their strongly-held positions given voice in Washington, D.C. Many times this should and will be through United, our industry’s broad-based national association. But other times, a separate path will need to be followed.

Christian Schlect
Northwest Horticultural Council
Yakima, Washington

Chris is among the most thoughtful leaders in the trade, and we value his opinion. Our sense, as we expressed in our first piece on the opening of a Western Growers Association office in D.C., is that there could be a positive angle to this:

On the bright side, another hand on deck fighting for produce industry interests in D.C. could be helpful, and Matt McInerney, WGA Executive Vice President, who is temporarily heading the office while it staffs up, is universally liked and respected.

Yet we were concerned that in launching its D.C. office, WGA did not, in fact, identify any issues that it wanted addressed that United was not working. Here is what WGA said:

“Western Growers believes that it can best serve its members by having a full time Washington, D.C. presence to lobby on federal issues like the 2007 Farm Bill, immigration reform, specialty crop competitiveness and food safety.”

To us that list of interests was indistinguishable from United’s priorities. In that, we felt the industry might find a problem:

The problem is that opening an office is a large expense, and an association needs to justify this kind of expense to its board and membership. Putting another guy on the produce industry team seems an insufficient justification for such a large and continuing expense. Most boards would insist on hearing of key points of differentiation between what this office will do and what is already being done before approving it.

And the differentiation has to continue to provide a continuing justification for the expense. If the WGA Washington office simply agrees with everything that United does and helps United execute its government relations strategy, what kind of justification is that for a D.C. office, which will probably cost well in excess of ten million dollars over the next 20 years?

Unfortunately, the justification is likely to come about by finding a reason to disagree with United. The temptation will be to paint the picture that the WGA is the guardian of grower interests and that United, with its broader membership base, can’t be counted on to defend grower interests.

To provide a continuing justification for the expense of maintaining this office, the inclination will be to find points of differentiation between WGA and United, rather than points of unity.

This could lead to a more divided industry presence in Washington.

It is also true that WGA did not explore the kinds of things that one would think they might explore if this was a purely friendly act — there was no discussion of co-locating offices, subletting space or sharing support staff to reduce industry costs.

We appreciate Chris pointing out that some commodity-specific groups have D.C. offices. Though these offices may help out on some general issues, such as immigration, they typically are, well, commodity-specific and so don’t deal with the general issues that United or a geographically based association, representing producers of many products, such as WGA, would be likely to deal with.

Although regions certainly can have specific interests, the very size of WGA argues against the possibility that United would neglect its interests. If the Vermont produce growers wanted to get some D.C. representation, it would make some sense… How responsive can United be to such a tiny and atypical segment of the national grower community?

But be unresponsive to the produce growers and packers of California and Arizona? That seems highly unlikely. This is the main source of financial support for United.

Of course, the real split may not be between production agriculture and retail but between growers and their own packers, shippers and processors. It is notable that WGA has not moved to take the California Marketing Agreement — which is an agreement among handlers, not growers — to a mandatory grower marketing order. WGA executives have said they cannot do so, because the growers would vote it down.

When United’s board voted for a national mandatory food safety program, which was later clarified in a joint release with PMA to be FDA-based, United had a lot of grower/shipper/packers in the room but no pure growers in the room.

So, perhaps, one could argue that WGA is going to take up this cudgel.

And, in fact, WGA is pushing for a USDA-based food safety solution, not an FDA based solution.

Completely aside from the substance, though, this is our basic point. If we want the industry to be strong, we need to try to resolve these issues “within the family” so to speak and come up with a “united” position. If on Monday the WGA is visiting a Congressional staffer telling him or her the produce industry wants A and on Tuesday United visits and tells the same staffer no, what the industry really wants is B, the most likely outcome is the staffer will see division in the produce industry and some non-produce interest will be more influential and more likely to prevail.

Much depends, of course, on how WGA handles the situation. Will it go to its membership and recommend that they belong to United as well? Will it whisper to key members that their investment in government affairs is best spent through WGA? It is on matters such as this that the true meaning of the WGA office will come to be seen.

WGA is fond of promoting the fact that California and Arizona grow nearly one-half of the nation’s produce. United’s ability to retain the loyal membership — and the membership dues — of this sector of the industry is thus absolutely vital to United’s long-term success. Put another way, the problem is not WGA’s D.C. office, per se — the problem will be whether A) WGA feels the need to differentiate its efforts from United and that differentiation makes its members not want to support United, or B) WGA’s members get tired of supporting multiple Washington offices and just take the position that they have WGA for representation, PMA for marketing — and that is enough.

The issue Chris raises of the need for an undiluted grower message does raise the question of whether a vertically oriented trade association, such as United, is the right kind of organization to do lobbying.

One could make a case that there is simply no “united” produce position on anything beyond a vague desire to “increase consumption” — that U.S. growers have different interests from retailers or for that matter from wholesalers or foreigners and that whatever the virtues of United’s many programs, when it comes to lobbying, we might be better off with different horizontal associations.

FMI, the supermarket industry association, is an independent association, and the Grocery Manufacturers Association/Food Products Association is an independent association. No pretense is made that the “grocery” industry always has a “united” position. The two associations still cooperate when appropriate and work independently when that makes sense.

If the goal is undiluted grower input on the Washington scene, is a vertical association the tool likely to deliver?

Can WGA’s new Washington office be seen as a nucleus of a new grower-centric lobbying organization? Is it possible, or desirable, to refocus United’s ambitions on strictly lobbying?

It is clear that growers need representation in D.C., but what form should that representation take and how should it be paid for is an important issue on the table in the PMA/United discussions.

Many thanks to Chris for his thought provoking letter.

Pundit’s Mailbag — Opposing Views On GMO/Organic Issue

Our piece, CCOF Opposition To GMOs Outweighs Commitment To National Standards, brought several responses including one from CCOF itself and another from an advocacy organization opposed to GMOs.

Both make the same claim: That because no Federal regulation exists on where farmers can plant GMO crops, states and localities should be free to regulate this issue:

I’m writing in response to the Pundit’s comments about CCOF’s position on GMOs. Contrary to the Pundit’s implication of a double standard, I believe that CCOF’s position very clearly supports a matter of importance to organic farmers and consumers and does not conflict or “outweigh” our commitment to the national organic standards.

Since no federal or state regulations exist to regulate GMOs in outdoor plantings, we believe that the existing city and county GMO bans and moratoria should stand. The federal government has decided that most GMOs used in food crops do not require regulation. Here in California, there are no current state regulations on GMOs in crops or foods. Without regulation, organic producers face potential contamination and resulting economic losses due to market rejection of their products. Until there is adequate federal regulation, farmers and consumers must have the right to seek state and local level regulations to protect their farms and food. CCOF has been working with other groups in California to create uniform state-wide regulations. Therefore, we feel it’s imperative to oppose federal preemption of local GMO regulations.

We fully support uniform federal organic standards and would oppose local regulations that would enact stricter organic standards, should such regulations be proposed. The existing National Organic Program provides consistent standards that consumers can rely on — the sort of regulation that is completely lacking around GMOs. This is not a contradiction to our position on “local rules”.

Thank you for allowing me to clarify CCOF’s position on GMOs.

— Peggy Miars
Executive Director
Santa Cruz, California

You have it wrong re: CCOF’s stand on GMO “uniformity.” Since there is, at present, no national regulation to protect organic farmers, food companies and consumers from contamination via GMOs, CCOF is simply pointing out that it is absurd for the federal government to pre-empt rules that localities have adopted to protect their organic citizens’ rights. This is not a suggestion that local rules should pre-empt federal ones, but that local rules must be allowed in the face of certain risk and in the absence of any federal standards.

In fact, USDA recently admitted that even experimental plantings of GMOs will contaminate natural crops (including, of course, the potential for contamination of organic crops). This, they admit, is inevitable even from imported GMO crop varieties that have not been reviewed for approval by US regulators. Their recent proposed new guidance for GE field tests states (p. 37, I’m happy to forward the document, if you really want to read a lengthy USDA regulatory filing) that USDA has “… been aware for some time that the occasional detection of regulated material [i.e., GMOs] in commercial crop seeds is a potential outcome of field tests conducted under experimental protocols generally used for notifications. This is due to cross pollination and also commingling from shared equipment and facilities….In addition, new incidents will inevitably result from the importation of seeds and commodities from countries where such material has been fully approved but has not completed all U.S. reviews.”

Since USDA admits that contamination is inevitable, and yet refuses to adopt any regulations to limit or eliminate contamination, localities have no choice but to adopt their own rules.

— Charles Margulis
Center for Environmental Health
Center for Food Safety
Oakland, California

We certainly appreciate both Ms. Miars’ and Mr. Margulis’ comments. Here at the Pundit, we pride ourselves on being open to different perspectives as we try to think hard about every issue, and we value the contribution these letters represent.

To the extent that anyone was confused by our piece, we are happy to allow Ms. Miars to set the record straight.

Yet there strikes us as something highly disingenuous about this argument. After all, if Congress passed a law stating that farmers planting a GMO crop must leave a 12-inch buffer around the edge of their farm, thus enacting a uniform Federal standard, is there even one person who believes, in light of this new Federal standard, that Ms. Miars and Mr. Margulis would immediately endorse the proposal to forbid states and localities from pre-empting Federal law?

Of course not. They would simply say that the Federal standard is inadequate and thus we need to allow states and localities to pass more adequate laws.

To put it clearly, CCOF is using the lack of a Federal law to excuse its expediency.

The fact is that not to decide is to decide, and the decision the Federal government has made is to create an approval process that GMO seed must go through and then, once approved, not place restrictions on where it can be planted.

There are substantive arguments for why the Federal government should consider such regulation. We are well aware that drift could reduce the value of an organic crop. That is an important argument for why the Federal government should restrict GMO plantings, but the Federal government has elected not to do so. The current Federal standard is unrestricted planting of approved GMO seed.

Traditionally, the position has been that open field agriculture is agriculture exposed to the elements — and that includes non-organic elements. If a house is next to a farm and the house burns down, the wind might blow the ashes — both organic and non-organic — over the neighboring soil. Drift in agriculture is common, and if a farmer wants to insulate his crop from drift, the burden has traditionally been that he has to take those steps, such as adding buffer zones.

That CCOF and other organic advocates would like the government to switch the burden for fighting drift to the GMO grower is both understandable and predictable.

Having failed, to date, in that effort, the issue is now different. The issue is national uniformity. This particular issue is an important issue to CCOF, so since it has been unable to achieve its goals nationally, it would like to be able to get state and local laws it likes and disrupt the national marketing of GMO seed.

Our point was simply that what is good for the goose is good for the gander, and if you accept the position in interstate commerce that when you don’t like the present state of Federal Law, the proper thing to do is allow state and local preemption of the national status quo, you are opening yourself and the country up for problems.

Because yes, in some state somewhere there is someone who wants tighter organic standards and in another state there is someone who wants looser organic standards. We even bet there is someone out there who wants GMOs to be allowed in certified organic food. After all, GMOs are not inorganic; their exclusion from certified organic food products is simply a political decision. One day it may be reversed.

But we think if reversal ever is up for discussion, it should be discussed on a national basis. Our country thrives on one unified national market. Ms. Miars and Mr. Margulis should get on a plane, go to D.C., and try to get the standard they believe in adopted nationally. We can only commend them for their passion and commitment.

Yet the implications of allowing local pre-emption go far beyond this issue and the principle being established is not one that, long term, will serve the interests of the organic community or the people of the United States.

Many thanks to Peggy Miars of California Certified Organic Farmers and to Charles Margulis of the Center for Environmental Health and the Center for Food Safety for sharing their passion and perspective.

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