Food Safety ‘Arms War’ Claimed
As WGA Responds To Publix’ Demand
For ‘Enhanced’ Produce Standards

Jim Prevor’s Perishable Pundit,
November 13, 2007

Western Growers Association is currently meeting in Hawaii. People go there for the climate, but WGA has made sure it would be hot… by publishing a letter to Publix Super Markets that can only be described as incendiary.

One of the buttons on the top of our page records the pieces we summarized under the title NRA Food Safety Round-up. It records a series of events that transpired in which the National Restaurant Association intended to promulgate its own food safety standards that, it was anticipated, were going to be developed by a group known as the Food Safety Leadership Council — which consists of Avendra LLC, Darden Restaurants, McDonald’s Corporation, Publix Super Markets, Wal-Mart Stores, Inc., and Walt Disney World Company.

Publix is the newest member of the group that has traditionally been composed of companies that perceived themselves as being at the greatest reputational risk on food safety.

NRA was eventually persuaded, in practically the only way associations can be persuaded — by its own members — to postpone the announcement of any new standards to give the California Marketing Agreement some time to work. This decision was somewhat easier to make as the timing of the controversy was such that it was too late for any product to be planted in Salinas to meet new requirements anyway.

Now the Food Safety Leadership Council has promulgated its new on-farm produce standards and you can read them here.

In and of itself, these standards mean nothing. But Publix sent a letter to at least some of its vendors:

Dear Produce Supplier:

As part of our ongoing effort to enhance food safety standards purchased by Publix, we have joined with the food safety professional staff of a diverse group of food retailers, known as the Food Safety Leadership Council (“FSLC”), to develop and adopt a set of enhanced On-Farm Produce Standards. Current members of the FSLC include: Avendra, LLC, Darden Restaurants, McDonald’s Corporation, Publix Super Markets, Inc., Wal-Mart Stores, Inc., and Walt Disney World Co.

On the following pages you will find the new “FSLC On-Farm Produce Standards” for your review. Please review these standards, together with the food safety procedures used by your firm, to ensure that you meet the standards required by Publix. It is our intention to utilize these FSLC On-Farm Produce Standards to evaluate vendor farms that provide produce to Publix. As a vendor, you agree by signing below to adhere to the standards.

To assist us in maintaining the FSLC On-Farm Produce Standards, we request our supplier’s farms be inspected and audited for conformance to these standards by representatives of member companies of the FSLC, or designated inspection agencies that have been certified by the FSLC to conduct food safety audits. As a supplier to Publix, this standard will be verified through Primus and their good agricultural practice auditing program. This is not a new audit, but rather a standard to be verified by the auditing company. By signing below, you acknowledge and agree to conduct and pay for an audit by an FSLC certified auditor at least once per growing season. The results of any such inspection or audit will be shared among all members of the FSLC as a means to enhance consistent safety standards. You further acknowledge that, regardless of the results of any audit, each FSLC member company will make its own independent purchasing decisions based on multiple factors which may be important to each such company in its sole discretion. Participation in the auditing process does not commit any FSLC member company to purchase products from your firm, and no such purchases may in fact occur.

Please sign and return this form to Garry Bergstrom to indicate acceptance by your firm of the terms described in this letter. Any questions regarding this program can be directed to Bob Carey of Publix Corporate Quality Assurance (CQA) at [Phone number deleted by the Editor]. We appreciate your participation as we work together to provide our common customers with safe, wholesome, high-quality food.

Sincerely,

Garry Bergstrom
Business Development Director, Produce/Floral RBU

Michael Roberson
Director, Corporate Quality Assurance

The gist of the letter is that Publix wants its vendors to follow these FSLC standards, to agree to be audited and pay for an audit by an FSLC authorized auditor. Since Publix already required audits, this is not a new audit but a new standard.

Whereupon the Western Growers Association sent out a somewhat astounding letter considering it is writing to its members’ customer:

Dear Mr. Bergstrom:

Several Members of Western Growers received your letter dated October 29, 2007, addressed to “Dear Produce Supplier” with an attachment captioned “Food Safety Leadership Council On-Farm Produce Standards.”

We are bewildered as to how and why your “Council” concluded that the California Leafy Green GAPs and metrics were insufficient to address the food safety concerns of the public and our members’ customers, apparently without the benefit of input from the grower/handler community.

After our review of your On-Farm Produce Standards, we believe that the new standards are unreasonable, excessive and scientifically indefensible and will require produce suppliers to submit to redundant, expensive and unnecessary food safety inspections and audits. Further, they will result in significant loss of available farmland and may cause serious environmental harm.

The FSLC’s standards clearly imply without any scientific basis that the GAPs, scientifically developed and peer reviewed by some of the nation’s leading food safety scientists and experts, are inadequate. We know that is not the case as federal and state government food safety agencies all agree that the GAP metrics include the latest, cutting edge food safety science.

Your effort marks the beginning of a destructive food safety “arms race”, where different groups of produce buyers, in an effort to claim that they have safer produce than the next, will impose on fresh produce suppliers ever more stringent, expensive and scientifically indefensible food safety requirements without even the implication that the additional costs will be reimbursed.

1. The On-Farm Produce Standards appear to apply to all fresh produce grown in the United States, not just California and Arizona grown lettuce or leafy greens. Do they?
2. Do the standards apply to imported produce? Where explicitly in the standards does that requirement appear? What inspection and audit verification process will you use to ensure that produce grown in other countries meets the same standards and requirements as US grown fresh produce?
3. The new standards require a one mile buffer zone between fresh produce fields and concentrated animal feeding lots. What is the scientific basis and justification for such an extensive buffer that will take substantial farm land out of production? What environmental studies have you conducted that evaluate the effect on wildlife habitat, flood control and water quality?
4. The new standards require a ¼ mile buffer zone between fresh produce fields and animal grazing. What is the scientific basis and justification for such an extensive buffer that will take substantial farm land out of production?
5. The new standards appear to require that only potable water that meets US EPA drinking water standards may be used on fresh produce crops eliminating the use of commonly used irrigation water sources. What is the scientific basis and justification for applying such a rigid standard to irrigation water? What environmental studies have you conducted throughout the country that evaluate the effect of irrigation water treatments such as the addition of chlorine or other sanitizers on land, crops, and wildlife?
6. What is the rationale for the required compost micro testing regime?
   1. California law requires testing for fecal coliforms, yet this is not required by FSLC. What is the rationale for deleting this test?
   2. the added requirement for generic E. Coli testing is lower than that required as a composite part of the fecal coliform test. What is the rationale for lowering this standard?
   3. the transfer vector for Shigella is human-to-human, so why would testing be required in compost?
7. Strategies for field testing are being widely discussed by industry. How does the required field testing program assure the FSLC that contamination in the field will be identified? Have confidence levels that would dictate sampling programs been established by the FSLC?
8. How do you propose to reimburse growers/handlers for the increased costs of these food safety measures? Will you agree to a “food safety line item” on invoices that would be auditable?
9. Do you now reimburse growers/handlers for the increased costs already incurred by complying with the existing standards for lettuce and leafy greens?
10. How do you propose to impose these standards internationally without violating WTO and other international trade agreements?
11. Will you be advertising claims that you have the best/superior safety standards, giving rise to the notion that perhaps this nation’s produce is presently unsafe?’

Our industry in California, Arizona and elsewhere has spent millions of dollars and years of research developing methods of farming in order to ensure the safest, most nutritious food supply in the world. While some new regulations do not yet cover all produce commodities, we recognize that all fresh produce commodities are not equally susceptible to pathogenic contamination. So you can imagine our resentment that without any apparent scientific basis or consultation, your “Council” has promulgated a new set of standards for growing of all fresh produce.

Our questions are not rhetorical. We hope and expect that they will be answered. We would be interested in a constructive dialogue on these issues if you are willing to so engage.

Western Growers is ready, willing and able at any time to meet with the FGSLC to review your answers and the scientific rationale for the imposition of the “enhanced” standards.

Sincerely,

Thomas A. Nassif
President and CEO

In addition, WGA released an announcement with much the same content:

Western Growers Challenges New Food Safety Buyer Group
On Unreasonable, Scientifically Indefensible Food Safety Demands

Western Growers today condemned the demands of a consortium of retailers and food service vendors who insist that fresh produce suppliers must implement new unreasonable, excessive and scientifically indefensible food safety standards and to submit to additional expensive and unnecessary food safety audits.

The consortium, organized under the umbrella name of the “Food Safety Leadership Council,” (“FSLC”) currently consists of Publix Supermarkets, Inc., Wal-Mart Stores, Inc., Darden Restaurants, McDonald’s Corporation, Avendra, LLC, and Walt Disney World Co.

In a letter addressed to “Dear Produce Supplier”, Publix attached a 20-page document titled “Food Safety Leadership Council On-Farm Produce Standards.” The consortium is demanding that the entire fresh produce industry agree to develop and adopt “enhanced” food safety standards that add unnecessary burdens to the recently implemented California Good Agricultural Practices metrics that the California Leafy Green Marketing Agreement Board has accepted and upon which state and federal inspections are currently being conducted.

Western Growers sees this effort as the start of a food safety “arms race,” where different groups of produce buyers, in an effort to claim that they have safer produce than the next, will impose on fresh produce suppliers ever increasingly more expensive and scientifically indefensible food safety requirements.

“We have very serious concerns about these new food safety standards and demands,” said Tom Nassif, Western Growers President and CEO. “We are extremely disappointed that they are taking this approach. The new standards clearly imply without any scientific basis whatsoever that the already developed and adopted GAP metrics, scientifically developed and peer reviewed by some of the nation’s leading food safety scientists and experts, are inadequate. We know that is not the case as federal and state government food safety agencies all agree that the GAP metrics include the latest, cutting edge food safety science.”

Western Growers is sending the consortium a letter outlining Western Growers’ specific scientific and policy concerns and asking them to cease and desist imposing these unreasonable standards on fresh produce suppliers until they meet with and provide the fresh produce industry with scientific bases for their new requirements.

For example, the new standards far exceed the existing Leafy Greens GAP metrics in significant ways:

• The On-Farm Produce Standards appear to apply to all fresh produce grown in the United States, not just California and Arizona grown lettuce or leafy greens.
• The new standards require a one mile buffer zone between fresh produce fields and concentrated animal feed lots.
• The new standards require a ¼ mile buffer zone between fresh produce fields and animal grazing.
• The new standards appear to require that only potable water that meets US EPA drinking water standards may be used on fresh produce crops eliminating the use of commonly used irrigation water sources.
• The new standards use “bright-line” generic E. coli counts to determine acceptable or unacceptable irrigation water.
• The new standards clearly imply that the inspections required by the California Leafy Green Marketing Agreement currently performed by state and federal government inspectors are inadequate and the standards appear to require mandatory additional independent, expensive and unnecessary audits.

Ironically, nowhere in the standards is an explicit reference to or requirement that fresh produce suppliers from other countries adhere to the same standards being imposed on US fresh produce suppliers. Moreover, the consortium has not provided the fresh produce industry with its own set of good handling practices that demonstrate that consortium members are properly handling fresh produce after receipt of produce from fresh produce suppliers.

The consortium has asked its suppliers to sign on to the new standards immediately if suppliers wish to do business with consortium members; in fact, some fresh produce suppliers may already have signed such agreements.

Western Growers strongly encourages its members to become better educated about the new standards and to wait until the fresh produce industry receives from the consortium more scientific evidence and validation to support their new standards.

Of course, each company must make sales and marketing decisions based on their own circumstances. Western Growers members are also strongly encouraged to contact and confer with their own attorneys, internal or external food safety experts and/or Western Growers before agreeing to be bound by the new standards.

Western Growers is simultaneously contacting and coordinating with fresh produce organizations around the country to explore developing a unified response to these unreasonable demands.

That there are substantive questions regarding the standards goes without doubt. And, surely, letters like this will play well on the homefront back with the WGA membership. Yet, such a strident letter is likely to achieve the opposite of its purpose as it stiffens the backs of the very buyers that WGA hopes to influence.

This is where associations have to work with their membership and other associations. Perhaps the members are afraid to talk to the retailers directly. Fine so WGA goes to PMA and asks Bryan Silbermann for help. Bryan can speak to some of his board members: Steve Bleeker from Disney is on PMA’s Foodservice Board, Stephen Tursi from Wal-Mart is on the main PMA board, plus Mike Agostini at Wal-Mart is on PMA’s Technology & Standards Council.

WGA could have called Tom Stenzel from United, who has Mitchell Smith from McDonald’s on United’s board, plus Michael Roberson at Publix, John Gurrisi at Darden and Gary Campisi at Wal-Mart are part of United’s Food Safety & Technology Council.

Nobody from Avendra comes to mind on the boards this year, but Avendra is the lineal descendant of various hotel procurement arms, including the Marriottprocurement operation, and PMA has had Marriott contacts back to the days of Joe Brennan.

The point is that associations should facilitate this kind of contact, use connections to get everyone together to work it all out. Notice that there is no mention in the WGA letter that it tried to work things out quietly and that Publix refused to meet with them.

One suspects that WGA, which, as a grower association, does not have the contacts of a vertically integrated association such as PMA or United, didn’t want to be seen asking its association brethren for help. That is bad and, in the end, if this issue is to be resolved, it can only be resolved through the vertically integrated associations. They now will have to step in after a major mess has been created.

Here is a pretty good rule: Associations should try to avoid issuing public attacks on private companies — especially if the private companies are customers.

And the truth is Publix has done nothing wrong. Private companies are permitted to establish their own procurement policies and they don’t need anyone’s permission or approval. Nobody is forced to sell to Publix or to meet their standards.

WGA seems to be missing the important point that Publix is a company free to make its own procurement policies. Even its letter to Publix, in point ten (10), seems to imply that WGA is missing this key point:

10) How do you propose to impose these standards internationally without violating WTO and other international trade agreements?

This literally makes no sense. As a corporation, Publix is not bound by any WTO rules. Publix is free to announce that it chooses not to buy produce, for example, from China — case closed. It is the government that is bound by WTO rules. The government cannot enforce rules against foreign countries that are not enforced against US producers and are not justified by the science. But private companies can and do discriminate every day.

In fact if any organization is coming close to breaking the law, it would be WGA when it says this:

The consortium has asked its suppliers to sign on to the new standards immediately if suppliers wish to do business with consortium members; in fact, some fresh produce suppliers may already have signed such agreements.

Western Growers strongly encourages its members to become better educated about the new standards and to wait until the fresh produce industry receives from the consortium more scientific evidence and validation to support their new standards.

Strongly encouraging one’s members to wait and not to sign a contract is very close to an illegal restraint of trade. WGA itself ought to be very careful before it gets a call from an attorney at the Federal Trade Commission.

Although the standards that the FSLC has proposed can be justifiably questioned, that is also true of almost all food safety standards. If Publix had, instead of announcing these requirements, announced that it would only purchase from operations that are GlobalGAP-certified, ISO9000-certified and, where appropriate, British Retail Consortium Certified, those standards could be criticized on a scientific basis as well. We have no real data proving that any of these standards make for safer produce.

In fact, for all the support WGA gives the California Leafy Greens Marketing Agreement, there is no data proving that product grown under the agreement is safer than product grown under another system.

It is also interesting that WGA has only chosen to attack these particular companies and this particular standard. Earlier this year, due to a crop failure in Europe, Marks & Spencer wanted to buy US broccoli — it waived its Field to Fork standards — but insisted on EurepGAP-certified product. There were exactly three US producers to choose from. Yet WGA didn’t condemn Marks & Spencer.

And Costco is demanding finished product testing. WGA didn’t condemn Costco, although, arguably, the consensus of food safety experts is that the finished product testing is less likely to achieve safety than the preventive measures detailed in the FSLC guidelines.

To some extent, WGA is reaping what it sowed. Way back in February, we published WGA’s Secret Science Panel:

It is fair to say that the very purpose of the California Marketing Agreement that will cover spinach, lettuce and other leafy greens is to build regulatory and consumer confidence.

In order to do that, we need not only a defensible procedure — be it regulation by government, private entities or some other alternative — but we need substantive standards that can be defended. But the way Western Growers Association has handled the drafting of the GAP documents has put the industry in a highly suspect position.

Supposedly, there is a secret panel of scientists meeting to draft out the proposed GAP standards, which will be science-based. In essence, the WGA has chosen to keep secret the kind of information that is essential to build confidence in this process.

Let us ask five simple questions:

1. Who is on this committee and how were they selected?
2. Do they have any conflicts of interest?
3. Have they each endorsed the draft GAP document?
4. Have they been asked to draw up dissenting reports on areas where they would like to see different standards?
5. What was the charge given the scientists?

And we’ll add two really big questions:

Why is all this a secret?

How will refusing to answer these questions build regulatory and consumer confidence?

The assumption by the consumer media, politicians and regulatory bodies will be that this is all being kept a secret because the panel wouldn’t reflect very well on the industry.

So let us head this off at the pass: WGA should release the composition of the panel right now.

Although the very purpose of this panel drafting the metrics was to build confidence, WGA insisted on a secret process that built no confidence.

If there really was a public panel of 20 top scientists who had signed their names to the metrics, this probably wouldn’t be happening.

Right now the Leafy Greens Board should be working toward a public process. We are already too late for next season, but we should be working toward the following season.

Now, with all this being said and recognizing that WGA tried to keep things too secret and thus diminished confidence in its efforts, and further recognizing that WGA should have worked quietly behind the scenes through PMA and United to resolve this problem, we still have to ask what about the FSLC standards?

WGA would like a scientific justification for everything, but WGA has never provided a scientific justification for its own standards. How could it? We don’t know the cause of these outbreaks; we don’t know the migration rate of E. coli 0157:H7.

We have no basis for saying that any particular distance from a feed lot guarantees safety. In fact, some of the standards that WGA is taking such umbrage at are the exact same standards that Fresh Express promoted in an interview with Jim Lugg published in USA Today distributed at the PMA convention in 2006!

Right now, WGA is challenging the FSLC standards by asking things such as this:

3) The new standards require a one mile buffer zone between fresh produce fields and concentrated animal feeding lots. What is the scientific basis and justification for such an extensive buffer that will take substantial farm land out of production? What environmental studies have you conducted that evaluate the effect on wildlife habitat, flood control and water quality?

But Fresh Express explained its standards this way:

Fields
Fresh Express won’t accept produce from fields if:

* They’re within one mile of a cattle feed lot or dairy operation. Cattle operations may cause E. coli to get into runoff water and onto a field, especially during floods.

Yet WGA has not issued a condemnation of Fresh Express. And the “Secret Panel” that created the metrics never published a paper explaining why Fresh Express was wrong.

Why is the burden of proof on the FSLC and not on the creators of the Marketing Agreement metrics?

So, what should WGA do? How can it help its members?

Aside from working with the national associations to resolve these issues, the real problem with the Publix “agreement” and what WGA should point out is that it creates an obligation on the part of vendors without any compensatory obligation on the part of Publix.

The way the document is drafted, not only are producers not promised business but they are not even promised that Publix will only buy from producers who meet the standard.

In fact, as it is written, if it comes into effect, the most likely outcome is this: A few brave souls will sign the agreements, produce to the FSLC code and then, because the supply is so constrained, prices of FSLC-certified and audited product will zoom with a separate market for FSLC-certified product. FSLC members will say that they are not willing to pay $5 a box premium, the buyers will abandon FSLC standards, buy the cheapest legal product and leave those producers who met the standards with the choice of selling at the same price as those who didn’t or not selling at all.

This is the key line in the agreement:

You further acknowledge that, regardless of the results of any audit, each FSLC member company will make its own independent purchasing decisions based on multiple factors which may be important to each such company in its sole discretion. Participation in the auditing process does not commit any FSLC member company to purchase products from your firm, and no such purchases may in fact occur.

In other words, you, the vendor, agree to spend money meeting these standards. We, the buyer, do not commit to paying even 1 cent a box more to make these standards real.

It is a sucker’s contract, and Publix and any other FSLC members should — as part of their Corporate Social Responsibility programs, which all involve “fair dealing” with vendors — revise the contract to create reciprocal responsibilities. At very least, there should be a commitment to only purchase product that meets the FSLC standards — even if it is more expensive.

Of course, any standard could be abused. If a company starts running TV commercials claiming its produce is safer than another company, that would be a big problem — but that is true of any standard — not just the FSLC standard.

It is fine to discuss with buyers the science behind decisions, and it is advisable for groups such as the California Marketing Agreement to operate in as transparent a manner as possible when establishing food safety metrics. In the end, though, any buyer is free to set whatever standards it chooses for its own procurement. Isn’t that what we repeated a hundred times during the battle to get approval of the California Marketing Agreement — these are just minimum standards.

The focus of a grower’s group should be to see that contracts are worded so that growers can get a fair deal, and the focus of vertically integrated groups should be on helping facilitate commerce by getting everyone talking and finding the common standards that 90% of the trade can agree on.

One thing is sure: Buyers and sellers have to live together, so some civility in our discussions is essential for the long term success and prosperity of the trade. We better all take a deep breath and let vertically integrated associations step in and try to find some common ground.