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Produce Associations Withdraw Support Of Food Safety Bill After Amendment Is Added To Exempt Small Farms And Local Growers

Way back in April, after the FDA Deputy Commissioner for Foods, Mike Taylor, addressed the United convention, we ran a piece warning the trade of what lay ahead: FDA’s Michael Taylor Preaches ‘Scale Appropriate’ Food Safety Standards, Code Words For Exempting Small Farmers And Organics. As we wrote then:

Unless you are a policy wonk following the nuance of inside-the-beltway politics, you probably didn’t realize that he was also using a DC code word for “let’s exempt certain competitors from food safety standards we demand of others.” That code phrase is “scale appropriate.”

He said it many times, tried to express it as a concept still searching for a definition, and he asked for help in defining what it means.

Well, it is an odd thing to endorse a concept you don’t know the meaning of, and we would say that this tortured quest for understanding is somewhat disingenuous, because it can only mean one thing.

“Scale appropriate” is a way of saying that in considering what food safety standards to apply, one is going to think of something other than food safety.

If one is serious about raising food safety standards, this is a triumph of politics over science.

Now a Who’s Who of produce associations has sent a letter to the powers that be in the United States Senate, announcing that due to an amendment to the food safety bill that would provide exemptions for small and local growers, they can no longer support the bill that they have been supported up to this point:

Dear Senators:

As the Senate begins final deliberations on S. 510, the FDA Food Safety Modernization Act, we are writing to express our opposition to the latest “compromise” on Senator Tester’s amendment to exempt small farms and business operations from basic federal food safety requirements. As organizations representing the vast majority of fresh produce grown and consumed in this country — from small, medium and large-sized farms — the Tester amendment utterly fails to protect consumers by including blanket exemptions from the rest of the bill’s strong safety net, without regard to risk.

We applaud the leadership of the Senate HELP Committee and Senator Durbin who worked hard to construct a bill that embraces a risk-based approach to food safety. Providing a framework for developing preventive control standards from farm to table was a fundamental principle of a new food safety structure at FDA and had broad support amongst fresh produce companies across the country. Unfortunately, by incorporating the Tester amendment in the bill, consumers will be left vulnerable to the gaping holes and uneven application of the law created by these exemptions. In addition, it sets an unfortunate precedent for future action on food safety policy by Congress that science and risk-based standards can be ignored. And most importantly, this amendment rejects the fundamental purpose of S. 510 that requires FDA to develop standards and set requirements that are based on science and risk.

Comments from Senator Tester and supporters are now making it abundantly clear that their cause is not to argue that small farms pose less risk, but to wage an ideological war against the vast majority of American farmers that seeks to feed 300 million Americans.

We are appalled at statements by Senator Tester reported today in the Capital Press that “Small producers are not raising a commodity, but are raising food. Industrial agriculture, he said, takes the people out of the equation.”

The consequences of inadequate food safety precautions have no boundaries as to size of operation, geography, nor commodity. The consumer has a right to know that all food that they purchase has been produced, transported and offered for sale under the same food safety requirements. The undersigned produce organizations strongly oppose inclusion of the Tester amendment in S. 510. If this language is included in the bill, we will be forced to oppose final passage of the bill.


United Fresh Produce Association
American Mushroom Institute
Fresh Produce Association of the Americas
National Potato Council
National Watermelon Association
Produce Marketing Association
U.S. Apple Association
Western Growers
California Citrus Mutual
California Strawberry Commission
California Grape and Tree Fruit League
Florida Fruit and Vegetable Association
Florida Tomato Exchange
Georgia Fruit and Vegetable Growers Association
Idaho Grower-Shipper Associations
Idaho Potato Commission
New York Apple Association
Northwest Horticultural Council
Texas Produce Association
Washington State Potato Commission

Unfortunately, it may not matter. The Senate voted for cloture — to end debate — on the bill by a vote of 74 to 25, meaning the vote will take place within 60 days. A vote for Cloture required 60 votes; passing the bill only requires 51. If the bill was going to be stopped, it probably had to be stopped at the cloture vote.

Perhaps the industry can still influence the shape of the bill but we would say the math is against this effort.

The reality is that the Senate is not a scientific committee; it is a political body. The expectation that it will act in accordance with a science and risk-based standard is truly an exercise of hope over experience.

The problem for the produce industry on this issue is obvious: There are only a few states with large quantities of large-scale produce growers; that means only a few senators who are going to care about this issue. Most are more concerned about the objections the small produce growers in their states are going to make.

The truth is that the whole matter is a travesty. Yes, the associations are 100% correct on the substance. If we are going to have food safety standards, they should apply uniformly.

However, there are other issues:

First, we just elected a new Congress. There is absolutely no emergency that justifies dealing with this issue in a lame duck session. In 1933, the 20th Amendment to the Constitution was ratified reducing the time between the election and the seating of the new Congress. The whole point was to end lame duck sessions in which the recently expressed will of the people could be ignored. You can read more on this point here.

In fact, the reason they are pushing this bill now is that it represents a massive grant of power to the FDA. It is unlikely the new Republicans in the House would support it.

Jesse Kelly was a Republican candidate for Congress in Arizona. He narrowly lost. He is not an expert on food safety, but we think his attitude when asked about food safety represented that of many people, including many of the new Republican members of Congress. Check out the video of how he handled an unexpected question:

Second, although the associations are correct that there is no science in exempting small farmers or those who sell locally from food safety standards. it is not strictly correct to say that, up to this point, everything in the bill was strictly science-based. The bill consists of lots of completely arbitrary rules. For example, the bill states:

The Secretary shall increase the frequency of inspection of domestic facilities identified under paragraph (1) as high-risk facilities such that each such facility is inspected — ‘‘(i) not less often than once in the 5-7 year period following the date of enactment of the FDA Food Safety Modernization Act; and ‘‘(ii) not less often than once every 3 years thereafter.

‘‘DOMESTIC NON-HIGH-RISK FACILITIES — The Secretary shall ensure that each domestic facility that is not identified under paragraph (1) as a high-risk facility is inspected — ‘‘(i) not less often than once in the 7-17 year period following the date of enactment 8 of the FDA Food Safety Modernization Act; and ‘‘(ii) not less often than once every 5 years thereafter.

This is all very nice and, maybe, as a matter of public policy we want to make the decision to do this. But to pretend that this has something to do with “science” is absurd. There are no controlled studies that indicate that high-risk facilities that are inspected by the federal government every three years are safer than those inspected every four years or not inspected at all. There are no controlled studies that indicate that a federal inspection of low-risk facilities every five years does anything at all for food safety.

This is either politicians pretending they are doing something or the lobby for federal employees creating jobs.

Third, if you read the bill, almost everything is left at the discretion of various agencies of the federal government. It is not obvious to us that most in the produce industry — or in the country — want the government to have that kind of discretion or that such discretion will be exercised scientifically.

Fourth, this all costs money. It will cost the federal government money and industry money. Industry advocates don’t like to speak about this because someone is likely to turn it around and propose more fees on the industry to pay for it all. But in this day and age, which is a bigger problem, not enough food safety regulation or deficits as far as the eye can see? What about the depressing effect of government mandates on entrepreneurialism and job creation?


We proposed our own idea for food safety reform in a piece in The New Atlantis, titled How to Improve Food Safety: Aggrandizing the FDA Only Distracts from Real Solutions.

It was built around reforming the liability laws in such a way as to make retailers more focused on food safety.

It is commendable that the associations have drawn a line in the sand saying that this local grower and small grower preference is anti-scientific and unacceptable when it comes to food safety. We will see if they have the heft to keep it out of the final bill or to block passage.

We would argue that giving such power and discretion to the government is bound to lead to political decisions down the road, and that we would be better off starting with a blank piece of paper in the new Congress. In fact, maybe we have bigger problems to deal with and could just put the whole issue aside until we right the economy, end the deficit, kill the terrorists and stop the nukes in Korea and Iran.

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