Three years ago you won major concessions for small farmers. Now it’s all in danger. Action Alert!
When the Food Safety Modernization Act (FSMA) was originally proposed in 2010, we and many other organizations were troubled. Small-farm and organic food advocates warned that the legislation would destroy their industry under a mountain of paperwork and other requirements.
Working with the natural health community, ANH-USA helped win the inclusion of an amendment from Senators Jon Tester (D-MT) and Kay Hagan (D-NC), which exempted producers making less than $500,000 a year in sales who also sold most of their food locally. This wasn’t easy. Big farms and processed food companies and their allies at the USDA and FDA did not like it, because they feel threatened by competition from natural food producers.
Now, through the rulemaking process, the FDA is trying to change the law in such a way that the hard-won exceptions provided by the Tester-Hagan Amendment are endangered.
In January we reported that the FDA had proposed two troubling FSMA rules:
- The first one concerned standards for the growing and harvesting of raw agricultural produce, and exempts foods that are sterilized by irradiation, even though “nuking” it harms the food’s nutritional value, can cause a wide range of health problems, and masks filthy conditions in slaughterhouses and food processing plants. Obviously, organic foods cannot be irradiated, so they will never be exempted.
- The second amended the FDA’s Current Good Manufacturing Practices (CGMP) guidelines by creating hazards analysis requirements and risk-based protections with lots of detailed recordkeeping. Most farmers will likely need a team of lawyers to make sure they’re complying with the new rule properly.
Farmers who make less than $500,000 should be off the hook because of the Tester-Hagan Amendment, right? No! At the last minute, a provision was added to the FSMA allowing the FDA to revoke the exemption for small farms or facilities under specific conditions.
And now, new FDA rules interpret those conditions in a way that completely undermines the intent of the Tester-Hagan amendment. The FDA now gets to revoke the exemption if a foodborne illness outbreak might possibly be linked to the farm, even if there is no proof that the farm is the cause of the outbreak, and even though there may not be an immediate threat to public health!
The standard is now very low indeed: FDA can revoke the exemption for any reason if it will “protect the public health and prevent or mitigate a foodborne illness outbreak based on conduct or conditions associated” with a farm. Talk about vague language! This rule is just the excuse the agency needs to run roughshod over the rights of the small farmer.
It gets even more unfair. If the FDA decides to revoke the exemption, the small farmer or facility has a mere sixty days to come into compliance after being notified of a problem. This will put the farm out of business immediately—which is especially unjust considering the fact that bigger farms and facilities have between one and six years to come into compliance and will no doubt get lots of help from the government.
Even worse, a farm or facility that wishes to contest FDA’s decision has only ten days to put together supporting facts and documentation and send it to the FDA. On top of that, there is no formal hearing process in which to contest the decision—and no way to re-qualify for the exemption. Once it is revoked, it’s game over.
As we’ve pointed out in the past, organic food is often the first to be blamed for foodborne illness. Remember the European E. coli outbreak? Organic farms were blamed with no evidence to support the contention. And now there is no need to prove that a farm is the source of the illness. Their exemption can be revoked on mere suspicion.
In addition, the proposed rules discriminate against small farmers and food producers who wish to diversify. The rules now say that all foods sold by farmer or food processor fall under the $500,000 cap, instead of just the food that is under the FDA’s jurisdiction and therefore subject to the FSMA. Produce is, of course, under their jurisdiction. But meat and poultry products fall under the USDA’s jurisdiction and should not be subject to these rules.
So a farmer who has $500,000 sales in poultry and $10,000 sales in organic fruit could never get an exemption, because the farmer exceeds the $500,000 total food sales limit. This will discourage diversification by farmers to include the small-scale production of fruits and vegetables, which is contrary to the intent of the Tester-Hagan amendment. It doesn’t make sense to treat small-scale production of produce the same as large-scale production, just because the same farmer is producing other types of food—as many small farmers must, in order to survive.
We warned earlier that the FDA should not be put in charge of our farms. It did not make sense because the FDA knows absolutely nothing about farming and also has demonstrated its bias again and again against small and natural operations in favor of large and powerful companies. The FDA was given authority over farms anyway through the Food Safety Modernization Act, and now we see that it is proceeding exactly as we feared.
Action Alert! The FDA has extended the comment period for the new rules to September 16—which gives us an opportunity to provide additional comment. Write to the FDA and ask them to create a clear and justifiable standard for revoking exemption for small farms and facilities, not the vague language that is currently used; allow for due process to contest the decision; provide a pathway to re-qualify for the Tester-Hagan exemption; and limit the definition of food in the $500,000 sales ceiling to those products under the jurisdiction of the FSMA and the FDA. Please take action immediately!
