Peanuts. Pistachios. Popcorn seasoning. Cookie Dough. Greens. Beef. Beef. Beef. Wide-scale outbreaks of foodborne illness of slammed our country this year, leaving legislators scrambling to come up with an appropriate response. Over the last month or so, we’ve begun to see the first steps towards new regulations and laws, but real change has yet to come for the safety of our nation’s food supply. Frankly, it’s been difficult to keep up with all of the announcements and proposals that have popped up in recent weeks. Congress passed HR 2749, the Food Safety Enhancement Act of 2009, the President’s Food Safety Working Group publicly unveiled it’s regulatory goals, and the Oregon state legislature passed SB 188, which will increase fines for food safety violations. But what does all of this mean for consumers, and for the small farmers who support us? To help decipher the national and local hullabaloo, here’s a quick-and-dirty rundown of recent developments.
In mid-June, HR 2749, The Food Safety Enhancement Act of 2009 passed out of committee, which included provisions for greater Food and Drug Administration funding, FDA recall authority over contaminated products, and improved traceability of our food supply. The language is dry and the bill was passed in such a flurry (given all of the outcry over recent E-coli and salmonella scares) that it can be difficult to make sense of what this actually will entail. Jill Richardson of La Vida Locavore wrote a concise dissection of the positive and the potentially harmful parts of the bill. According to her analysis, there is a lot to be pleased with (such as recall power and trace-back) but, as she also states, groups like the Farm to Consumer Legal Defense Fund worry about the bill’s provisions for the FDA to dictate “best practices” in regional agriculture, thereby determining how farmers can and can’t grow their produce.
The other issue at stake with this bill is how it defines a “farm” versus a “processing facility.” Russell Libby, Executive Director of the Maine Organic Farmers and Gardeners Association recently wrote an opinion of HR 2749, which argues that the bill is unacceptably vague about what practices would put a small farm under the FDA oversight guidelines for processing. Potentially, as he writes, this might include farms that “turn fruit into jams; make pickles; bake; dry and package teas; and much more. All of these activities, and even cooking maple sap into syrup, turns you into a food ‘facility’ that is supposed to register under the Food Bioterrorism Act and, as proposed, would have to pay a fee to FDA yearly.” At the heart of these concerns is the fact that HR 2749 largely overlooks scale, instead applying a one-size-fits-all metrics of food-safety regulation. Critics argue that the final rules and regulations will need to go much further in recognizing the vast differences between a small, diversified family farm, and a large-scale, export-ready food processor.
That said, we do desperately need many of the bill’s provisions, particularly recall authority. After the recent cookie-dough contamination, intrepid food-politico blogger Obama Foodorama continued to find Nestlé dough products on shelves as of this last weekend. The FDA needs to be given the funding and the power to stop questionable products from being sold to unwitting consumers. Unfortunately (and this might be the biggest shortcoming of the bill), poultry and livestock producers were left out of the final draft, meaning that beef recalls will still be but a dream until Congress decides to target meat producers.
Following the massive peanut scare earlier this year, the President convened a Food Safety Working Group of representatives from the FDA, USDA and other bureaus to make recommendations for improved food safety and outbreak prevention. On Tuesday, the group made their first report after four months, and generally received high marks from many food activists for their proposals to modernize our outdated detection and response systems. Obama Foodorama provided an excellent summary of the key points made by Vice President Biden, along with Secretaries Vilsack and Sebelius. The most important announcements I gleaned from the speech were an increased focus on the prevention of outbreaks and more inter-agency cooperation (far too many jurisdictions manage different foods). The next step following this announcement will be to pull together new rules for reducing salmonella and e-coli threats, along with improving our public epidemiology system. But, as a Washington Post editorial points out, most of these recommendations are nonbinding. Until Congress enacts stricter guidelines into law, we shouldn’t expect many changes.
The same day as the Food Safety Working Group met, the FDA announced the appointment of a man named Michael Taylor as the newly-created Senior Advisor to the Commissioner. If Taylor’s name sounds familiar, that’s probably because he’s been a poster child for the revolving-door employment swaps between the federal government and agribusiness. For those of you who’ve seen Food, Inc., Taylor made an appearance in the “revolving business card” montage for his history with the FDA, then Monsanto’s law firm, then the FDA and USDA, then back to Monsanto’s law firm, on to a think-tank and academia, and now back to the FDA. At the very least, you have to give the guy some credit for his experience.
So here are two takes on the appointment: one for, and one against. Nutritionist and food politics writer Marion Nestle argued on her website that the Taylor choice was a good one, given his history with strong food safety regulations. Tom Philpott, on the other hand, remains skeptical, believing Taylor to be a techno-optimist who has spent too much time work privately for companies like Monsanto to be a reliably objective advocate for farmers. (For one more opinion on Taylor’s appointment, Jill Richardson splits the difference between Philpott and Nestle, and handily goes through Taylor’s past comments on food safety while she’s at it.) The reality now is that we all need to take a close look at Taylor’s past reports and statements, because they’ll likely be guiding the Obama administration’s safety platform.
Locally, in Oregon, we’re facing similar statewide measures in response to the national food safety situation. Back in April, we wrote about increased pressure from the Oregon Department of Agriculture to bump up regulation of farmers’ markets. At that time, we’d heard the ODA would run a “summer of surveillance,” after which they would propose new rules. Well, the State legislature moved quickly, and by the end of May had already passed SB 188, pushing the fines for food safety infractions to a maximum of $10,000. Again, this is an issue of disregarding scale: $10,000 is a disincentive to a large business, but a crippling blow to a small farm. Carol Boutard of Ayer’s Creek Farm writes that, “The latest state budget cuts are probably an extra incentive behind ODA’s recent support for the passage of SB 188. The fines that ODA can now levy for food safety violations have gone from $200 to $10,000. This applies to the giant processors, big box food outlets, supermarkets as well as small farmers alike and the regulations are to be crafted by ODA with little or no input by the farming or eating community.”
As Anthony Boutard has told us, “The most important element of direct marketing history is the fact that not a single instance of food borne illness has been documented in the 27 years that Oregon’s farmers’ markets have been operating. That record is mirrored in other states.” There is evidence that SB 188 was pushed through the state legislature by the well-funded grocery lobby, which feels threatened by the comparatively under-regulated farmers’ markets. Sadly, this is a textbook case of governing by hysteria, when decisions are hurried through legislature because a pressing issue looms large in the public opinion. Carol astutely noted that one would vote against food safety, but with the right advocates, they may well have voted for protecting small farms from undue regulation.
Intimately entwined with this bill is the recent decision of the ODA to expand their definition of “processing” to include some of the value-added products that small farmers produce. Anthony Boutard was recently informed by the ODA that his farm’s frikeh (a traditional Middle Eastern grain) would be held accountable as a “processed food,” thereby requiring his fields to be licensed accordingly. He shared his experience on Kathleen Bauer’s excellent blog, Good Stuff NW, where he wrote:
The problem is not just the banning of locally produced frikeh, absurd as it is. The ODA has adopted an extremely broad definition of food processing: “The cooking, baking, heating, drying, mixing, grinding, churning, separating, extracting, cutting, freezing, or otherwise manufacturing a food or changing the physical characteristics of a food, and the packaging, canning, or otherwise enclosing of such food in a container.” (OAR 603-025-0010(10)) This definition provides for no hazard analysis. It is just a laundry list that only works in the favor of large scale industrial operations.
As such, it sweeps up whole foods that people have never considered processed. Dry and fresh shell beans, dried peppers, grains, even garlic, all fall into ODA’s definition of processed foods. The steep licensing fees will discourage farmers from trying new ways to present food. For example, up to now, most of us have quietly interpreted the rule to exclude casual drying of peppers on the plant. That has changed because ODA sought severe means to keep farmers and other vendors in line, and the legislature accommodated them by increasing civil penalties from $250 to $10,000.
While greater food safety oversight is very much needed at both our state and federal levels, we must make sure that new regulations are appropriately applied to farmers based on their scale. By no means should farmers’ markets or small operations go unregulated (particularly if they hope to gain wider acceptance), but there is a dramatic difference between a small, independent farmer engaging in direct sales, and the extensive reach of a major corporate farm that ships produce across the country and overseas. Future regulation must be more nuanced in respect to the diverse revenue streams and practices of small growers.
Stay tuned to the Slow Food PDX blog for more news on food safety reform. You can also check in with Good Stuff NW for more posts by Anthony Boutard on the future of Oregon regulations.