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Town Hall Spinach Meeting:
Unanswered Questions

The Produce Marketing Association held its “Town Hall” meeting on the spinach/E.coli crisis on Saturday, and it certainly was valuable to provide an opportunity for the trade to hear a kind of recap of what happened and what the issues are that need to be dealt with. It also provided a forum for individuals to ask questions on issues they were concerned with. PMA deserves kudos for putting it all together so quickly…still, I think there were difficulties with the format that prevented the forum from being as valuable as it could have been.

PMA got three high powered government officials (Robert Brackett, Director of Center for Food Safety and Applied Nutrition, FDA; Kevin Reilly, Deputy Director, Prevention Services, California Department of Health Services, and Eric Stein, Policy and Legislative Deputy Secretary for the California Department of Agriculture) and three top association executives (Tom Stenzel, President and CEO of United Fresh Produce Association; Tom Nassif, President and CEO of Western Growers Association, and James Bogart, President and General Counsel of the Grower-Shipper Association of Central California) to speak on the subject and then took audience questions. Bryan Silbermann, President of PMA, served as moderator, but didn’t speak too much since he was going to include a great deal about the spinach crisis and food safety in his luncheon remarks.

I felt Bryan’s contributions were missed on the panel. This was an audience at PMA and thus had a disproportionate number of PMA members in the audience and everyone in the audience, just by virtue of being at the convention, had some kind of connection to PMA. To the extent they wanted to hear from association executives, they also wanted to hear from Bryan and possibly from other PMA executives who were involved in different aspects of the crisis, such as Kathy Means, Vice President of Government Relations, and Nancy Tucker, Vice President of Global Business Development. Part of what PMA members I think wanted was to judge if their association had represented then effectively in this crisis and the format didn’t allow for that.

More fundamentally, I’m not sure we should have had association executives up there at all. This is nothing against associations, and perhaps a second workshop focused on their response to the crisis and vision for the future would have been more appropriate. The basic difficulty with the format used is that trade association executives, as part of their long term responsibilities, have to work effectively with these government regulators. This makes it very difficult for them to question publicly the actions of the regulators or to identify incompetence at regulatory agencies.

You really wanted to get those government officials there in a format where they could be questioned politely, but sharply, and forced to explain and justify their actions and to elucidate what requests they are actually making from the industry.

Momma Pundit taught me that you can break your arm patting yourself on the back, but I’m pretty certain that if given an hour to interview those regulators, I could have elicited a lot more valuable information than came out of the discussion and brought to a head many of the issues facing the industry in the days ahead.

There was valuable information that came out. Of the three association executives participating, Tom Stenzel seemed the one most willing to, at least obliquely, challenge the decisions of the regulators as he kept pointing out that based on what we know now, there was one day, at one processing plant, in which there was a problem. He identified the core problem for the industry as being that regulators did not have confidence in the safety of our products and thus moved to impose the recommendation not to consume.

There was also a lot of emphasis on the fact that since we sell a product designed to be consumed raw, we have to all be perfect in all stages of production, processing and distribution. This struck me as problematic for several reasons: First, basing a food safety plan on human perfection seems ridiculous, as we will not be perfect. The issue is how can we have acceptably safe food acknowledging that human error will be part of life? Second, in this particular case, we still have no finding that anyone did anything wrong. Third, Tom Nassif was the bluntest of the panelists when he said that even if 100% of the people perform 100% of the time, there may still be outbreaks.

Kevin Reilly of the California Department of Health Services was probably the most specifically helpful of the regulators. He praised, without naming them, Natural Selection Foods for running a “state of the art” processing plant and maintaining incredible records in a computerized easy-to-access format. He also provided the only really specific advice on what needed to be done to improve the situation in the future. He pointed out that many of the documents that are designed to guide producers in producing safe product, such as our “Good Agricultural Practices” (GAP) guidelines, are vague, with references to things growers should be mindful of rather than specific rules.

There are real reasons for this vagueness. In a sense, these GAP documents are guidelines for producers to use in developing their own HACCP plan based on their own specific circumstances. But from a regulatory point of view, they make regulation almost impossible as they make it into an idiosyncratic question as to whether this particular producer “considered” properly the location of cattle in preparing his HACCP plan and whether he “considered” water quality sufficiently.

Some compromise needs to be struck between the truth, which is that each situation is different, and the regulatory need for uniformity in order to efficiently confirm compliance. The answer is obviously minimum standards.

So, everyone will still need to do their own HACCP plan and consider these issues — after all, it makes a big difference if a farm is located next to a farm with two cows or 2,000 cows — but, maybe under all circumstances, we can agree to a minimum buffer between farms that grow greens and cows.

Every farm needs a HACCP plan to look at things like wildlife, and the specific needs vary by location — but every farm could be required to meet a minimum standard — for example, a requirement for all fields to be surrounded by a fence going a set amount underground to discourage animals.

I have not been impressed with most of the grower HACCP plans I’ve seen. An awful lot of them look like photocopies of other farmer’s plans rather than plans developed for a specific location. A combination of minimum standards and a requirement that, much as architectural plans typically need a stamp from a licensed architect, HACCP plans need a stamp from a certified party that this plan was, in fact, developed after a careful analysis of this particular situation would go a long way toward improving the situation.

Tim York with the Markon Cooperative, and a former chairman of PMA, performed an invaluable service and asked the most trenchant question as he broke up the love fest and inquired as to whether the regulatory agencies felt comfortable now advising consumers that our products are safe. When Bob Brackett of the FDA replied that the agency had selected its language carefully and had said that “the product is as safe as it has ever been”, Tim York responded by quoting from an exchange in the movie Ordinary People between the characters played by Mary Tyler Moore (Beth Jarrett) and Donald Sutherland (Calvin Jarrett):

Calvin “Cal” Jarrett: “… Tell me something. Do you love me? You really love me?

Beth Jarrett: I feel the way I’ve always felt about you.

Which is pretty much what the regulators were telling the produce industry.

Unanswered Questions

The truth is that there were questions that needed to be put to the regulatory agencies and issues that needed to be discussed and they were not. Among these:

  1. We now know that not only was it one processor on one day, as Tom Stenzel said,but it was only bagged product and it was only Dole brand. This means that the FDA decision to issue a recommendation on all spinach in all forms from anywhere was wildly disproportionate and incorrect. They needlessly deprived people of healthy food and decimated an industry. They need to be held accountable for this. And the FDA, specifically, needs to be held accoutable for the flaws in the FDA’s own systems that produced so many “false positives” in the form of reports of people getting sick from other brands, from bulk product, from organic product, etc.
  2. It was shocking and unacceptable that these government officials spent two hours demanding that the industry “do better” without one single note of humility, one single acknowledgement that they made errors and without a scintilla of indication that they have any intention of trying to “do better” themselves so they will not unnecessarily bankrupt people and close down industries.
  3. In trying to explain, at an earlier point in the crisis, why the government made a recommendation not to eat spinach as opposed to confining the issue to a particular brand or processing plant, the analogy was given of 9/11 during which the government, uncertain of the safety of the air system, grounded all flights.

    The analogy always was overwrought, and the comparison between the intentional killing of thousands of people in an act of war and the accidental introduction of a pathogen into the food supply is not appropriate as these are not analogous situations.

    There is another way the situations differ: The government ordered all planes down and prohibited new ones from taking off — it didn’t issue a public recommendation to consumers not to fly.

  4. The FDA claims they didn’t have the authority to order a mandatory recall in this situation but did have the authority to advise consumers not to eat spinach.

    From the point of view of the industry, an advisory to consumers not to eat a product and a mandatory recall of that product are the same thing. Retailers won’t sell product that the FDA deems dangerous so a consumer advisory is a de facto recall.

    The only difference is that many vendors have insurance policies that cover mandatory recalls, but there is no such thing as a policy to cover consumer advisories. There also are no criteria that have to be met for FDA to announce an advisory.

    Maybe the industry would be better off with legislation that gave FDA mandatory recall authority, defining a “finding of fact” that FDA has to make before it could implement a mandatory recall. The same legislation would ban FDA from issuing “advisories” not to consume any product for which it had recall authority.

    In other words, the industry may be better off giving FDA authority to order mandatory recalls and being able to hold FDA accountable for its decisions. If it starts issuing erroneous findings of fact, maybe some people at FDA need to lose their jobs.

    There is something wrong with a system in which a government agency can be so wrong, with such great consequence for innocent growers around the country and so little consequence for anyone at the FDA.

  5. What, precisely, is the food safety standard that the government wants the industry to implement? As public health authorities, the regulators can’t be “special prosecutors,” consumed with spinach as the only threat to public health. They need to be mindful of the allocation of funds in society. They also need to be mindful of the substitution effect. As prices rise for an item such as spinach, an item recognized by public health authorities as healthy, people substitute other foods. If those foods are less healthy than spinach, then we could reduce fatalities from spinach and increase total fatalities as people die from the consequences of eating unhealthy substitutes.

Beyond lip service, however, the regulators showed no willingness to wrestle with these hard questions. Five people are believed to have died in the last ten years as a consequence of these matters in lettuce and spinach. In the same period, however, the industry produced over a trillion servings of these products — so by any reasonable standard, the product is enormously safe.

It can, however, always be made safer. And the question is what is the regulatory position on additional expenditures to achieve safety?

If we determine that by spending an extra $100 million a year, we can reduce fatalities by 20% — so spend a billion dollars in the next ten years and four people will die. Should we do it? What do the regulators want? What if we determine that by spending $250 million a year or $2.5 billion over the next ten years, we could reduce deaths by 40% — so three people would die over the next decade? Is that the regulator’s preference? Suppose the only way to get deaths down to zero is to grow everything in greenhouses. And imagine this costs $500 million a year or $5 billion over the next decade. Is that what the regulators want?

And how do they know that when the spinach industry is finally getting awards from the FDA for food safety that the higher prices of greenhouse-grown produce won’t lead more people to eat hamburger or chicken and that total fatalities in society won’t increase as people sometimes don’t cook these things properly and they die from E. coli and Salmonella and obesity-related diseases?

The regulatory community has a responsibility to not merely express generalized desires for “safe” product but to express, clearly, how they want these necessary trade offs to be made. They didn’t do this at the “Town Hall” meeting and, absent such an explanation, the industry has no reliable guide to making the real-world decisions that have to be made.

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