Pundit’s Mailbag —
United’s President/CEO Responds (Part 2)

As we mentioned the other day, United Fresh Produce Association President and CEO Tom Stenzel was kind enough to send the Pundit a letter. With a food safety crisis every week, we know he is busy and appreciate the effort.

For clarity’s sake, we divided the letter in two parts. The first dealt specifically with the issue of a United/PMA merger and we wrote about that here. Today, we wanted to review the main body of Tom’s letter, which deals with some comments the Pundit wrote regarding the relationship between our associations’ government affairs efforts and the regulatory agencies:

I take serious issue with your downplaying of the significance of the food safety issues our industry is facing. I can’t believe you suggest that FDA’s action in the spinach outbreak would be different if only government had closer friends at a produce association. You’ve got to be kidding me?

Eating a fresh produce product just made many people very, very sick, and several died. On Thursday, September 14, the FDA and CDC knew there was a major outbreak linked to some type of bagged fresh spinach, but they couldn’t pinpoint it further or find evidence that the serious risk was over. Ask them what relationship could possibly have changed their action. Ironically, a number of FDA scientists had just met with dozens of member company food safety experts at our Food Safety and Technology Council in DC on Tuesday, and Dr. Brackett was actually speaking to some 300 industry leaders at the United Fresh Washington Public Policy Conference on Thursday morning when this thing started to unfold.

Jim, this isn’t talking your way out of a speeding ticket from a friendly cop. These regulators do not take action based on who their friends are, but on their best judgment to protect the public health. That’s what they did.

Now, it is also a fact that these same regulators have serious ongoing concerns about some industry practices by some players. They want to see our weakest links made stronger, and our lowest common denominator raised. But if associations are to blame for that, it’s not because of poor relations with FDA; it’s because we have been working closely with them and taking their scientists to our fields and our operations. If that’s your gripe, guilty as charged. But I don’t know anyone working in produce associations who wouldn’t agree that we have to operate with a 100% transparent, open and honest dialogue among industry and government. The regulators concerns’ are about real practices, and how we can raise the bar of excellence across the entire industry.

Maybe you were just trying to be controversial. But you do a disservice to those companies who work so hard in the real world to produce the safest possible foods when you offer the misguided notion that if associations were only closer with FDA our industry wouldn’t be facing the challenges at hand. Balderdash and poppycock. We have a serious challenge in our industry, and serious people are addressing it.

Here at the Pundit, we take pride in allowing our space to be shared by the whole industry, so we are pleased to run Tom’s complete comments, complete and unabridged.

And if the Pundit wrote so unclearly that everyone understood us the same way Tom did, we can only fall on our sword and apologize.

Tom doesn’t actually quote any offending passage but, as best as we can tell, he got a bit peeved as a result of this section of our article PMA/United Merger Fresh On Our Minds:

When United’s President Tom Stenzel indicated (at PMA’s town hall meeting on the spinach crisis, which we dealt with here) that he thought the key to understanding the FDA’s actions was understanding that they didn’t have faith in the produce industry and our products, the obvious question is: Whose fault is that?

The bottom line on this crisis is that the FDA’s action to impose a blanket recommendation not to consume spinach bespeaks very weak relations with the produce industry. It implies little confidence in the trade and it implies that our government relations efforts haven’t been particularly effective.

The key crucial obligation of produce industry government relations efforts is to have a great relationship with regulatory decision-makers so that the instinct of these decision-makers is always, “The produce industry is doing the right thing so this must be an aberration,” and “Let me call my friend over at the produce association and find out the situation because he is knowledgeable and gives me the straight story.”

That relationship wasn’t there.

In light of this failure, industry leaders are of a mind to reorganize. My sense is that the boards of both United and PMA would agree. The issue is really what does a merger mean?

Tom is a very smart and talented guy, and we’ve read and reread his letter because we really wanted to think hard about what Tom was trying to say. Perhaps the confusion is over the use of the word “friend.” It was not our intention to imply that the crucial problem was that Tom or anyone else doesn’t “pal around” with FDA regulators. Although good personal relationships with regulators, their funders in Congress and those who appoint agency heads in the White House can only help, we were utilizing the term “friend” in a professional sense — one who we turn to for valuable information, etc.

From a substantive industry perspective, we would think Tom’s letter raises the following issues regarding government relations:

1. Is it worth the effort?
   We are sure he didn’t intend it this way but Tom’s letter comes very close to saying that any government relations program, at least as far as outreach to regulatory agencies go, is a waste of time and money. After all if, as Tom explains, “…regulators do not take action based on who their friends are, but on their best judgment to protect the public health,”and if we cannot influence that “best judgment,” then why spend money pursuing the matter? Tom basically is saying these are technocrats beyond our reach, which means don’t bother wasting the money running expensive government relations programs.
2. But actually, don’t friends or, at least, politics count?
   Many would disagree with Tom on two points: first, many think there is a lot more politics involved than Tom is prepared to acknowledge. Just look at the actions of the FDA in terms of the clearly political move to block consumer access to the “morning after” pill. An assistant FDA Commissioner quit her post because Commissioner Lester Crawford overruled a science-based, fully evaluated decision to make the “morning after” pill more accessible. Perhaps Tom would contend that it wouldn’t make any difference if the President is a liberal Democrat or a conservative Republican, as the FDA is composed solely of technocrats who make strictly science-based decisions — but there are many smart, well-informed people who don’t believe that.
3. Doesn’t being “a credible information source” matter?
   Beyond the question of politics, there is still the issue of influencing what Tom calls the “best judgment” of regulators. At a moment with imperfect information, much depends on the relationship and credibility of those in a position to provide industry information, or what John McClung of The Texas Produce Association in his letter chastising the Pundit on the same point called “…facts and details and insights…”

   This was a very bad situation and FDA was going to take action, but it was not preordained that the action required was a total industry ban. There was zero data tying curly leaf bulk spinach from, say, Colorado, to the outbreak. For some reason, we were not able to effectively communicate the facts to the FDA that whatever the issues with Dole or with Natural Selection Foods, or with bagged spinach from Salinas or somewhere else, or even with foodservice usage that might appear as bulk but actually came from bags, there is no scientific evidence to support the notion that a “national outbreak” can even exist on bulk spinach. How could E. coli on bagged spinach from Salinas even be related to the condition of bulk spinach from Maryland?

   Tom himself explains the situation: “…the FDA and CDC knew there was a major outbreak linked to some type of bagged fresh spinach, but they couldn’t pinpoint it further or find evidence that the serious risk was over.”So, why, if as Tom states, they knew this outbreak was “linked to bagged fresh spinach” did they ban bulk spinach? And, more to the point of this discussion, why couldn’t we persuade them not ban bulk spinach?

   That we could not persuade the FDA to not advise against consumption of all fresh spinach was a sign that we, as an industry, did not have either sufficient access or sufficient credibility with these regulators.

4. Was FDA being vindictive, trying to teach the produce industry a lesson?
   Since there was no cause to ban bulk curly spinach from Ohio, if nothing could be done, which Tom implies, then we have to assume that the industry didn’t have sufficient credibility with the FDA. Why not? The best indication is that the FDA was unhappy with the time it took and the watered-down nature of the end product of the Commodity Specific Food Safety Guidelines for Lettuce and Leafy Greens Supply Chain.

   Since the FDA did not have mandatory regulatory authority, perhaps it grabbed this opportunity to show its dissatisfaction in a way the produce industry would not forget.

5. Government relations is a two-way street.
   Tom’s letter is focused on what was possible in terms of influencing government. However, an effective government relations program works both ways. It both communicates to government facts about the industry and communicates to the industry facts about government.

   The Pundit pays pretty careful attention to these things and doesn’t recall anywhere near the kind of communication to the trade that would be justified by this, obviously, high level of dissatisfaction by government officials.

   Was there even one warning sent to the trade to inform the trade that FDA had the authority to advise against consumption of a whole commodity? Now Tom explains we have a “serious situation.” One can argue whether anything could have been done to change the FDA’s actions once this crisis reached a critical point but, surely, government relations organizations should be utilizing sophisticated game theory models to predict the behavioral outcomes of different scenarios.

   Then the association is supposed to warn the industry so we can act to change the outcome of the scenario.

6. Is the industry investing enough to build long term relationships?
   Tom’s letter strikes the Pundit as very short-term oriented. The truth is that effective government relations depend on decades of investment — when there is no problem. The industry may not be willing to pay this price. Building confidence is not something an industry does in a week or a year or a decade — it is a long-term, permanent commitment.
7. Is there a legislative role?
   Even if we accept that the FDA can never be influenced, certainly its power, authority and responsibility can be channeled by legislation. Many vendors complain that they lost their shirts because their insurance didn’t kick in since their insurance only covers recalls, not government recommendations to people not to eat things. Perhaps we should have a legislative change giving FDA authority to make mandatory recalls but not to issue these standardless advisories?
8. How proactive are we?
   We know that CDC does a survey of sick people to ascertain whether they got sick from spinach, hamburger, etc. Has the industry done any good research on these studies so that we can walk into FDA and tell them what the percentage of false positives is? We know now that about 12% of the survey responders said they ate a brand of organic spinach. We also know that none of the product that caused a problem was marketed as organic. That is an enormous false positive rate.

   We need to understand these surveys cold. One reason we can’t influence people is because we don’t have credible data. If you can go in and say “Look, before you act, we paid a fortune to Cornell University to study this issue and Cornell determined that you need to disregard as statistically meaningless anything less than 20% on a survey of only 100 people.” Then the FDA wouldn’t be so confused.

These eight issues seem to us worthwhile talking about. The Pundit doesn’t blame Tom Stenzel or United or all the associations together. But it is not a question of blame. I come from the “for profit” sector, and failures are failures. If you represent the government relations effort for any industry and your industry is shut down by the government, it is ipso facto a failure of that effort.

The most likely “cause” of the failure: A hesitation of the industry to do what the government wanted when it demanded a response to its earlier concern about Salinas-grown lettuce and leafy greens, which led to a decline in government confidence.

But that doesn’t mean that government relations efforts — and we refer here not to United, nor PMA, nor WGA, but to an “entity” that represents the sum total of industry government relations efforts — are off the hook. They did fail because they failed to prevent this industry closure either by persuading government to limit its actions or by persuading the industry to clean up its act.

All this is industry stuff, and Tom is not obligated to agree with the Pundit. We respect his opinions and take them for what they are.

Here at the Pundit, we have full confidence our readers will judge ridiculous accusations as such and so would like to leave it there with the industry stuff and simply ignore Tom’s allegations that the Pundit was involved in “…downplaying of the significance of the food safety issues our industry is facing”and his charge that there is a possibility the Pundit was “… just trying to be controversial.”

We’ll leave it up to our readers to decide if our work does “… a disservice to those companies who work so hard in the real world to produce the safest possible foods” and whether our work is done by “serious” people or is a supposedly frivolous production of “Balderdash and poppycock.”

Unfortunately, things on the internet are e-mailed around the world to people who don’t know us. So, for the record:

We are fourth-generation produce in the United States and far longer in Europe. We were brought up to care about this industry at the kitchen table and have, for our entire adult life, been engaged with trying to make it better. This work on behalf of the industry merited Jim Prevor with being named the first person ever chosen “member of the year” by the United Fresh Fruit and Vegetable Association.

During the spinach crisis, the Pundit wrote over 75 articles comprising over 100,000 words and gave up family activities and remunerative activities because we thought our responsibility to this industry, during a time of such crisis, necessitated that sacrifice. We felt it was our responsibility to stay up all night, night after night, to do our job and help put what was happening into perspective.

Obviously, many agreed that the contribution we made was a valuable one as the Perishable Pundit web site was visited frequently by the most influential and important leaders in this business, including members of the board of United, PMA and the USDA Fruit and Vegetable Advisory Board. Not to mention important staff at USDA, FDA, CDHS and other important players.

The Pundit also spent several hours a day, at no pay, dealing with consumer media and attempting to guide them to responsible coverage.

Here is a link to the work we’ve done on the spinach crisis. It is fair to say that we wrote more articles, more quickly and to greater acclaim than anyone else in the world.

Leaders of the industry were constantly thanking the Pundit for his contributions and forwarding articles to people at the highest levels of government and industry.

Reasonable people can differ, but progress for the industry requires civil discourse and respect for those whose opinions may differ from your own. We’ve done nothing but work very hard to help this industry and do not deserve such attacks on our good faith efforts to help this industry not merely endure this crisis but prevail in a newly complex operating environment.