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Pundit’s Mailbag — Is WGA Unjustly Criticized?

Our piece USDA Explores Possible National Marketing Order For Leafy Greens…But Are We Ready? brought a reply from one of the most important people in the produce industry.

In addition to being President and Chief Executive Officer of a major melon marketer holding the famous “Tri” brand, Steve Patricio is the Chairman of Western Growers Association, an important and powerful association that has been at the very center of the trade’s food safety battles:

It continues to amaze me how the Pundit acknowledges and applauds the rhetoric of PMA and United in their intended national approach, while criticizing WGA for their actual action. WGA and the California leafy greens industry have moved forward, not just talking about enforcement, but implementing stringent science-based guidance into the food supply process. We can all agree that the program today is not finished and the science-based good agricultural and manufacturing practices and processes will continue to evolve. The work will not be complete until there is confidence in every bite every time, but let’s salute how far we have come.

The Pundit and others love to refer to Marketing Agreements as voluntary. Please be aware that the day a member “voluntarily” signs on to the agreement, he is “mandatorily” bound for the term of the contract. Even if he changes his mind and withdraws, he is subject to all of the financial obligations as well as the civil and criminal penalties included in the agreement for the entire term.

The Western Growers Board of Directors unanimously approved actions they believed were both right in the long term and achievable in the near term. We all know how slow the wheels of government can take to move. The California and Arizona leafy greens industry moved forward with the tools they had to achieve the most control over their industry in the quickest time period possible.

Few of our critics expected the results that have been achieved. In less than 10 months nearly 100% of the California industry is under mandatory government oversight. Arizona is in the process of adopting the California model. The USDA is in their rulemaking process for a national program. All of this achieved by the California and Arizona leafy greens industry not just talking the talk but walking the walk to give the consumer the safest food supply possible, without any additional cost to the taxpayer.

— Stephen F. Patricio
President, Chief Executive Officer
Westside Produce

We appreciate Steve’s letter as it is a serious and thoughtful contribution to the industry discussion on food safety. It echoes some of thoughts Steve expressed in a piece in the Fresno Bee entitled Growers are Policing Themselves, which you can read here.

Among the key thoughts expressed in the piece:

  • The greatest flaw in any legislative approach can be summed up with one simple observation: Time is of the essence. While the Legislature may continue to debate legislation, the California Marketing Agreement for food safety has been implemented and is already helping to elevate food safety practices in the leafy greens industry throughout the nation.
  • The California Leafy Greens Handler Marketing Agreement for food safety is one of the most substantial, timely and effective responses to a food safety crisis in the history of our state. Currently, 111 California produce handlers are now subject to regulation under this agreement. Those handlers represent 99.5% of all the leafy green commodities grown in the state.
  • While we share Sen. Florez’s concern for consumers and food safety, legislation is the wrong response.
  • There are two keys to the success of the marketing agreement food safety program: the strength of the science-based growing and handling safety procedures and the appropriate government oversight to ensure their implementation.
  • This program represents the best science, oversight and practices available in agriculture today.
  • The signatory participants of the Leafy Greens Handler Marketing Agreement are subject to mandatory, enforceable compliance.
  • The costs of the marketing agreement are borne by the industry
  • The science-based standards they are enforcing were developed in conjunction with academics from UC Davis and other universities; scientists from USDA, the FDA and the state of California, industry specialists and additional third-party experts.

For our part, we would like to clarify that the Pundit has always praised WGA’s initiative on food safety. We especially applauded the quickness of the decision of the board of WGA to move forward on a form of regulation. As we said at the time:

The industry response to the regulatory and legislative environment following the spinach/E .coli crisis has entered a new phase as the Western Growers Association has called for a California Marketing Agreement and a Marketing Order, which impose mandatory food safety standards for spinach and leafy greens…

“… the decision to endorse mandatory food safety rules is epochal and has enormous implications. There is zero logical reason to think this would be confined to spinach and leafy greens. Melons, green onions and tomatoes are bound to be next.”

We have never criticized WGA for launching the effort to establish a marketing agreement. Why would we do that? Even if one’s ultimate goal is to see mandatory Federal regulation by the FDA, the best way of achieving that would be to see an infrastructure established, and the California Marketing Agreement is a major building lock in that architecture.

Besides, as Steve mentioned, legislative effort takes time. We needed to move fast and the California Marketing Agreement was up and operating by the start of the new season after the spinach crisis — a prodigious achievement.

Did we and do we have some concerns? Sure.

A) What happened to the Marketing Order?

WGA did announce not just a Marketing Agreement but a commitment to pursue a marketing order. The marketing order seems to have dropped from the radar screen — and without any real explanation.

From the original WGA release:

“Western Growers today announced that it will take action to initiate a California Marketing Agreement and a Marketing Order…”

When State Senator Florez (the same state senator whose proposals Steve attacks in his article) attacked the proposal, Tim Chelling, Vice President of Communications for WGA told us the following:

What we are proposing is basically a two-step process. The marketing agreement is more voluntary. The marketing order, which comes after — and this would be a matter of months later — is mandatory. The bottom line is there will be mandatory food safety regulations governed by and enforced by the California Department of Food and Agriculture.

A marketing order is significant for three reasons:

First, unlike a marketing agreement, no one can opt out of a marketing order. Look how close the industry came to not having Fresh Express participate in the California Marketing Agreement. That vulnerability has not gone away. We just gave an award to Tanios Viviani, president, Fresh Express, and he earned that award in no small part by deciding to join the CMA when he didn’t have to. Yet, it is very likely that someone, someday, will decide to withdraw. If it is a significant player, the whole industry will be left naked and without a defensible position.

Second, even an insignificant player not participating is a problem. If these metrics are essential for food safety and even one-half of one percent of the industry is not following them, then some innocent consumer is bound to get sick one day. And it may be a lot more than a one-half of one percent. Even in Arizona, we are hearing grumbling from Arizona growers and handlers that the expansion of the Marketing Agreement to Arizona is basically being foisted upon them by big California companies with their own interests.

Third, only a mandatory marketing order can be structured in such a way as to include imported product. Not to include imported product is very problematic. It is part of what our trade offers consumers. It also creates an unequal playing field for domestic producers. On an item such as leafy greens, we can get away with it. But is it a reasonable model for tomatoes or melons?

B) Can we count on almost 100% voluntary participation forever?

We understand that those who sign the agreement are bound by its terms — but only to the end of the fiscal year. Then participation becomes completely voluntary. Can we really hang our industry hat on continuously getting almost 100% participation, forever? Isn’t it more reasonable to think that we will fail at that than succeed?

C) Do the scientific standards have credibility?

In the end we need consumers to believe in our food safety standards. Growers have much to contribute here but, inherently, have a conflict of interest as well. The standards will have better credibility if we have a publicly identified board of independent food safety experts who publicly endorse the standards. If they decline to endorse them, we need an explanation of why this is the case. Openness and transparency are confidence-builders. We fully recognize the enormous effort made by WGA in developing these standards, and we recognized the effort by presenting one of our “Unsung Heroes” Award to Hank Giclas from WGA. See the complete article here.

D) Are we building a food safety culture among growers?

When Steve points out that so much has been achieved, he certainly is correct. But when he says it has been achieved “…by the California and Arizona leafy greens industry…” it is a question of definition. Do the majority of growers of leafy greens in California actually support the steps taken? Would the growers vote for a marketing order if it was presented to them?

By allowing only “handlers” to sign for the California Marketing Agreement, the industry may have avoided the very difficult but very important task of persuading the farmers as to the importance of these food safety measures. After all, no inspector can be there every moment and so we depend on farmers to do the right thing.

E) Will consumers and the media support anything done by the USDA, such as a marketing agreement or a marketing order?

Remember the goal is not just food safety; it is consumer and regulatory confidence in food safety, which is a different point. Consumer advocates and the media tend to believe that the USDA is in the pocket of agriculture. They do not have confidence in it as an advocate for consumers. The key question is how the media, regulators and consumers will react if something else goes wrong. Our sense is that if the FDA makes the rules, they will blame the FDA, but if the USDA approves industry rules and something goes wrong, they will blame the industry.


But none of these concerns indicate that WGA was “wrong” or that we shouldn’t have done the California Marketing Agreement or that we shouldn’t proceed with the Arizona agreement or a national agreement.

By raising these issues, we take nothing from WGA’s accomplishments, which are substantial. But by thinking about these issues and other questions that have been raised, we help the industry prepare for the next stage:

  • What will we do if an important player simply refuses to join a marketing agreement?
  • How can we extend the food safety model we are using to an industry such as tomatoes or melons, which have a substantial imported component?
  • Can consumer advocates be persuaded that a USDA program is as independent as an FDA program?

Discussion, critique, analysis… all this encourages us to do better and the Pundit, drawing readership and input from the whole world, has been honored to be a part of the process of helping the industry get better.

We would hate for anyone, especially Steve, to have the impression that we didn’t recognize and appreciate the important contribution WGA has made to the industry and the food safety efforts of our trade.

So, in honor of Stephen F. Patricio and in appreciation for his helping us to encourage industry discussion, we are sending off our application for membership as an Associate Member of WGA, complete with application fee and dues. Let there be no doubt: We want to support and encourage the important work done by the Western Growers Association.

We just reserve the right to offer dissenting opinions.

Many thanks to Steve for his important letter.

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