Back in July we ran a piece entitled, Pundit’s Mailbag — National Marketing Orders And Agreements, in which we discussed differences between marketing agreements and marketing orders and the difference between both of these approaches and mandatory regulation.
We reached out to USDA officials for additional information:
Pundit Investigator and Special Projects Editor Mira Slott spoke with Bob Keeney, Deputy Administrator for Fruit and Vegetable Programs, Ag Marketing Service (AMS) to get some details:
Q: What is the current status regarding efforts to take the California Marketing Agreement national?
A: What we’re doing is preparing a document now called advanced notice of proposed rule making for a leafy greens marketing agreement nationwide.
This will be a document that will solicit comments from the industry on whether the government should issue a nationwide marketing agreement for leafy greens or not.
There is a marketing agreement in the state of California only. What we’re working on is a very, very preliminary look on whether the industry feels we should issue this agreement nationwide. We would first be soliciting comments from industry, consumers and all interested parties on taking this agreement national.
We want to emphasize this is very preliminary.
Q: Is there anything happening with the development of a marketing order?
A: We’re not looking at a federal marketing order for leafy greens.
Q: What are the differences between a marketing agreement and marketing order in your mind?
A: The difference at the federal level: marketing agreement allows regulation, if shippers agree. They become signatories then have to abide by all terms of the agreement. In California when they signed the agreement they agreed to abide by it. Marketing order differs in that all the handlers would have to abide by those requirements — whether they agreed or not.
At the federal level we are only looking at marketing agreement and we’re at a very preliminary stage.
Mira also spoke to Jimmie Turner, Public Relations Specialist Fruit & Vegetable Programs, for additional information:
Q: What is Lloyd Day’s position? And what is going on with regard to a national Marketing Order for Leafy Greens?
A: The Marketing Order Administration Branch is under the auspices of Lloyd Day. Any marketing orders or marketing agreements would be managed, coordinated through that branch.
What’s happening now is that the USDA AMS is working with California leafy greens growers seeking to make the California Marketing AGREEMENT nationwide. THIS IS NOT an ORDER, it’s an AGREEMENT.
Once a formal request from leafy greens growers is received that they want to change or establish a marketing order or agreement, a notice is put out in the federal registry seeking comments to change or establish the marketing order or marketing agreement or to not establish such an order or an agreement. People are given a comment period which could be 30 days or could be 60 days. Once comments are received it goes to the Marketing Order Administration Branch.
However, this effort to expand the California Agreement nationwide would not be a marketing order, it would be a marketing agreement. We also have not received any formal request from the industry. We are doing this preliminary work on our own.
As far as USDA AMS’s involvement, we’re in the process of putting out an advance notice, it’s a preliminary step toward a marketing agreement nationwide, seeking comment, asking questions, then analyze those comments, then promulgate agreement if that is the determination. A marketing agreement is voluntary, unlike a marketing order. Handlers of leafy greens become signatories, and by signing the agreement they agree to abide by the terms of the marketing agreement.
USDA AMS and leafy greens growers met in DC a month ago about this effort to extend the agreement nationwide. We’re getting ready to prepare an advance notice. As part of the process, for our purpose we publish advance notice in the federal register seeking comments.
It was all very interesting but a little awkward. USDA is not responsible for food safety on fresh produce; FDA is. And nobody had asked it to put together a proposal for a Marketing Agreement, at least not officially. Yet the word is now out that USDA has, in fact, published an “Advance notice of proposed rulemaking” regarding “Handling Regulations for Leafy Greens Under the Agricultural Marketing Agreement Act of 1937.”
You can read the whole notice here but, basically, USDA is looking for feedback regarding the possibility of establishing a National Marketing Agreement for Leafy Greens modeled after the California Agreement.
United Fresh immediately came out with a statement pointing out the criteria its board had established as essential parts of a produce safety regulatory framework:
Statement by Tom Stenzel, President and CEO
Regarding USDA’s Advanced Notice of Proposed Rulemaking
For Federal Leafy Greens Marketing Agreement
“United Fresh Produce Association has been discussing with USDA’s Agricultural Marketing Service various options under its authority that might be useful in supporting best agricultural practices for leafy greens, and enhancing public confidence in the safety of these products.
“While USDA does not have regulatory authority over food safety for produce, we appreciate their efforts to work with industry in ways they can to assist us in meeting these goals. We will look carefully at the Advance Notice of Proposed Rulemaking and review this with our members, volunteer leaders on our Food Safety and Government Relations Councils, and our Board to evaluate its pros and cons and then provide further comments to the agency.
We have already communicated to USDA the three principles our Board adopted earlier this year that we believe must be part of an overall produce safety regulatory framework.
To protect public health and ensure consumer confidence, produce safety standards:
- Must allow for a commodity-specific approach, based on the best available science.
- Must be consistent and applicable to the identified commodity or commodity sector, no matter where grown or packaged in the United States, or imported into the country.
- Must be federally mandated with sufficient federal oversight of compliance in order to be most credible to consumers.
“It is our overriding goal for consumers to have confidence in the safety of all leafy greens they purchase, and that those commodities are grown according to the same safety standards, no matter where produced in the United States or internationally.”
The Produce Marketing Association came out with its own statement pointing out that USDA is seeking input from the industry:
In the October 4, 2007 Federal Register, the U.S. Department of Agriculture’s Agricultural Marketing Service issued an advance notice of proposed rulemaking in response to industry interest in the establishment of a marketing program to address the handling of fresh and fresh-cut leafy green vegetables.
The program would allow packers, processors, shippers, and marketers to maintain the quality of their products by reducing the risk of pathogenic contamination during the production and handling of leafy greens. Authorities and regulations under the program would not supplant those of the Food and Drug Administration (FDA).
Industry comments, particularly from growers, handlers, buyers, and sellers of leafy green commodities, are sought regarding whether to issue such regulations under an AMS marketing program and if so, the possible substance and implementation of the program. In particular, AMS invites responses to the following questions:
- Would the handling of leafy greens be better addressed though regulations under a voluntary marketing agreement signed by handlers, or under a mandatory marketing order regulating handlers and approved by a producer referendum?
- Would such a program be better implemented on a national or a regional basis?
- How should the United States be subdivided into smaller regions for the purposes of committee representation and program administration?
- How should committee membership be allocated to adequately represent the interests of industry throughout all regions of the United States?
- What process should the committee follow to recommend regulations appropriate to the various regions?
- What specific problems or issues should be addressed by such a marketing program?
- Would Best Practices based upon FDA guidelines be the best criteria for regulation of leafy green handling, or are there other criteria available that might better meet the industry’s needs?
- Which specific leafy green commodities should be included under the program’s handling regulations?
- What are potential obstacles to the implementation of such a marketing program?
- What are the potential costs associated with the implementation of such a program, including changes to current production and handling procedures, assessments, and audits?
- How would a marketing program complement, duplicate, or conflict with any other existing programs, such as state food safety regulations?
- Are there other issues and/or suggestions about such a marketing program?
Although AMS has not received an official proposal similar to that of the Leafy Greens Marketing Agreement already in place in California, members of the leafy greens industry have expressed interest in the establishment of similar standards through a Federal marketing program. Industry discussions have focused on the need for a program with national scope.
In the Federal Register notice, AMS stated that the agency is considering the development of a marketing agreement as previously described in this document because it believes that an agreement, rather than an order, is more likely to meet the needs of the produce industry across the fifty States and the District of Columbia.
Comments must be received by December 3, 2007. For more details, contact Laurel May or Kathleen Finn, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, at +1 (202) 720-2491 or e-mail firstname.lastname@example.org or email@example.com.
The complete Federal Register notice can be found here.
Western Growers Association has always articulated a plan for spreading the Marketing Agreement to a national level. California was first, Arizona looks primed to be second — that would cover about 90% of US production, and this would move it nationally.
Many in the industry — including PMA and United — have expressed the viewpoint that such marketing agreements — in which joining the agreement is voluntary, but once one signs, compliance is punishable by fines — are probably inadequate in the long term.
First, we are unlikely to get everyone to sign, so it is an imperfect program since it doesn’t guarantee consumers that anything they buy is covered. In fact the highly concentrated California industry, right after the spinach crisis, is probably the high-water mark for voluntary agreements.
Second, the USDA is perceived as heavily influenced by the agricultural industry. So USDA plans, whatever their substantive merits, are unlikely to gain the same degree of consumer and regulatory confidence as is actual regulation by the FDA.
However, it is not an either/or situation. FDA regulation takes a long time. Congress has to pass a law, regulations must be formulated, enforcement mechanisms developed, etc. A Marketing Agreement can be done much more quickly.
In fact, if you really want FDA to regulate, probably the quickest way to make it happen would be to establish a national marketing agreement. Then a whole system is up and running, and it becomes far easier to transition the system to FDA control than it is to start from scratch.
There are, however, still disquieting things about the whole situation:
First, the industry is setting itself up for failure if any one substantial player decides to withdraw. This seems highly likely and, the trade, having trumpeted this voluntary mechanism, will really have egg on its face if a big chunk of product is not covered by the agreement.
Second, the metrics, which will only get more complicated as the geography gets more diverse, are still not being developed in a manner that is easily defensible. We can’t negotiate these out in smoke-filled rooms. We need leading experts to publicly endorse them and issue dissenting opinions when they disagree.
Third, we need to find a mechanism by which buyers are pleased to pay more and give orders to those that are exceeding the minimum requirements of any regulation or agreement. If buyers won’t recognize value in exceeding these metrics — even though the standards may raise the performance of poor performers — then the buyers may also stifle innovation to make food safety stronger.
Fourth, we need a marketing solution to how we can tie ourselves together under a marketing agreement rubric for food safety — yet we must not have the whole program discredited when someone has an outbreak.
Fifth, we need to reassess our industry. The proposal for a national marketing agreement, as with the California one, is focused on “handlers,” not growers. In effect, we are torturing a statute that was designed to assist growers into a tool that regulates growers. The question is why are we doing this? Why don’t we do a normal Marketing Agreement and have all the growers vote to establish it?
The answer in California was that, even after the spinach crisis, WGA did not think it could get the votes. One presumes it would be even harder to get the votes on a national basis as many growers have never had a problem in their region and thus will be resistant to increased regulation.
Yet, solving the food safety problem is more a matter of culture than of metrics. Should we inspect annually, semi-annually or by surprise — we can never inspect enough to make sure people do the right thing. We can make all kinds of rules on what farmers ought to do if they see a wild animal in the spinach field. Only a compelling food safety culture, though, will make the farmer see the animal as opposed to turning a blind eye.
The fact that we, as an industry, are afraid to have growers vote on such an issue indicates that we have a lot of work to do in terms of helping growers develop a culture of food safety down on the farm.