The agency’s fumbling around on farm safety rules might seem comic—if the livelihood of small farmers and brewers weren’t at stake.
In January 2011, after one of the most underhanded legislative maneuvers we’ve ever seen, the disastrous Food Safety Modernization Act (FSMA) was signed into law. It wasn’t a complete rout for us. ANH-USA and its allies won some important amendments (for example, we removed draconian ten-year jail sentences for food and supplement manufacturers). But FSMA gave the FDA unprecedented power over American farms. And as we pointed out at the time, the FDA knows absolutely nothing about farming.
FSMA is now in the regulatory phase, which means the FDA is drafting rules that interpret the law’s intent. However, it seems that quite a bit has gotten lost in translation, particularly when it comes to organic and traditional farming practices.
The rules proposed so far have created such a deafening roar of outcry from small farmers, prominent members of Congress, consumers, and even big business, that the FDA has been forced to backtrack considerably.
Soil and Manure Provisions Threaten Organic Farmers
What the FDA Proposed:In January 2013, the FDA issued draft rules for produce, decreeing that farmers would have to wait nine months between applying manure and harvesting. This will take many organic fields out of production for an entire growing season, economically crippling small farmers.
Since, in place of synthetic chemicals, many organic and traditional farmers use biological soil enhancements (e.g., manure, agricultural tea, and yard refuse) to grow produce, these rules favor industrial farming over traditional practices, and incentivize the use of synthetic chemicals.
These rules are also in direct conflict with the National Organic Program (NOP), run by the USDA: according to NOP standards, there is only a 90- to 120-day waiting period. So now the FDA is trying to grab authority from another government agency that happens to know a lot more about farming!
The Backlash: In February we told you about the FDA’s “visit” to celebrated organic farmer Jim Crawford. They threatened him over these proposed rules—even though his use of manure was in compliance with existing NOP standards, and the FDA is not supposed to enforce regulations before they’re final.
Even before the FDA’s chilling threats to Crawford, Congress and small farmers were increasingly concerned: after all, Congress had directed the FDA not to issue regulations that would replicate or conflict with NOP standards. The backlash was so severe that Michael R. Taylor, the FDA’s Deputy Commissioner for Foods and Veterinary Medicine, issued a mea culpa on the FDA’s The Voice blog that started with, “You spoke. We heard you.”
Because of the input we received from farmers and the concerns they expressed about the impact of these rules on their lives and livelihood, we realized that significant changes must be made.…For that reason, we are planning to revise language in the proposed rules affecting farmers.
According to the post, this epiphany came after the FDA actually consulted farmers about the rules. Perhaps next time the FDA drafts rules about farms, the agency might want to talk to farmers first.
What’s Next?The FDA has finished revising its produce safety rule (including the section on manure) and has sent it on to the White House Office of Management and Budget (this is its last stop before it’s reissued for public comment). It’s important to remember that just because the FDA has revised the manure rule doesn’t mean they’ve changed it for the better—it could even be worse than before.
Separately, the FDA is conducting an Environmental Impact Statement (EIS) to see how the new rules will affect the environment.
All of this spells real trouble for our agriculture. Before an organic farmer can spread some chicken manure, he has to be sure he is compliant with instructions emanating from an agency that knows nothing about farming, which have been further approved by the White House. And everyone knows that the food safety problems we have experienced came from big industrial farms, not from small organic farms.
Spent Grain Rules Could Raise Beer Prices
The Proposed Rule: For centuries, small breweries have been giving their spent grains—free of charge—to local farmers, who then feed it to their cattle. But as part of FSMA rulemaking, the FDA will place spent grain under the same regulations as pet food. Brewers will be forced to spend thousands of dollars a year on grain disposal (which will still be cheaper than implementing the FDA’s “safety” regulations); farmers will be forced to pay an additional $300 to $400 per day for feed. It’s likely that both the prices for beer and grain will go up, and many small businesses will be forced to close.
According to the FDA, these rules are necessary because there could be direct human contact with the spent grain, which could contaminate it—despite the fact that there is no recordof any animal or human being harmed or made ill by spent grain.
The Backlash: As soon as the spent grain provision was discovered, there was a huge backlash from brewers, industry, and members of Congress in both chambers—so much so that Mr. Taylor was forced to publish another post on the FDA’s blog, though this one was hardly conciliatory, implying that it’s not the rules that are the problem, but the public’s reading comprehension skills. Mr. Taylor claims that the rules wouldn’t require spent grain to be regulated as pet food, and that “it was never FDA’s intent” to imply that. Instead, it was the brewers’ fault for misinterpreting the rules.
Despite Mr. Taylor’s reassurances, we find it difficult to believe that hundreds of farmers, breweries, members of Congress, and consumer watchdogs all happened to “misread” the FDA’s rules in exactly the same way—it seems more likely that the FDA is backtracking on a foolish and damaging rule.
What’s Next?FDA hasn’t promised to revise the rules, exactly—just to “clarify” their intent in their next draft, “so there can be no confusion.” While the FDA seems to imply that this will result in very few restrictions on spent grains beyond “common sense” food safety, we will be tracking these regulations carefully.
In the coming weeks, the FDA will issue revised rules that touch on both the manure and spent grain issues. We’ll notify you when these new rules are issued, as there will be a new opportunity for public comment—although only on those portions that the FDA has revised.
