By Roland McReynolds, Carolina Farm Stewardship Association Executive Director
The U.S. Food and Drug Administration (FDA) published proposed rules to govern the production of raw produce and the processing of most value-added foods on January 4, 2013. FDA issued these rules under authority of the Food Safety Modernization Act, or FSMA in government-speak. This act was billed at the time as the biggest update of our food safety laws since Upton Sinclair’s novel The Jungle exposed the horrors of the turn-of-the-Twentieth-Century meatpacking industry. FSMA explicitly gives FDA wide new authority to set rules for how farmers work many crops, and how food businesses run their operations day-to-day. With its proposed rules, FDA revealed what it intends to do with that newfound authority. Anyone who believes in the power of strong local food systems to improve our environment, communities and health should be extremely concerned.
The local, organic food community fought hard, and successfully, to ensure that Congress put protections in FSMA to prevent local foods from being strangled by industrial-scale food safety regulations. For the first time the federal government acknowledged that the scale and length of supply chains matters when it comes to food and farming, and that one size does not fit all when it comes to regulating agriculture. By limiting FDA’s power to govern farms and food makers predominantly serving local markets, Congress intended that the local food sector should continue to thrive, create jobs and offer consumers a healthy alternative to faceless, processed food.
Despite that astonishing legislative achievement, we are not out of the woods yet. FDA’s proposed FSMA rules expose just how fragile the so-called ‘exemptions’ for local food can be in the face of government arrogance. FDA is proposing loopholes that threaten to swallow completely the law’s local and organic food protections.
Notably, FSMA’s protections generally only apply to businesses with less than $500,000 in annual food sales. If we want local, healthy food systems to grow and we want market opportunities that encourage a new generation of sustainable farmers, we will need businesses—especially food hubs and other collaborative processing and distribution models—that grow beyond that benchmark. USDA research indicates that to be financially viable, a local food hub needs at least $1 million in annual revenue.
Regardless of whether FDA regulations apply to a particular local farm or food producer, the market will respond by adopting the federal rules as private standards. Insurance companies and retail outlets will require farms and food makers to comply with FSMA as a condition of market access—unless we take the initiative to create a safety protocol for local, organic food that is tailored to address the actual risks it presents.
On one hand, the bare minimum protections we won in Congress put a target on our backs. Many so-called consumer advocates are on the attack, charging that local food and small farms are risky and dangerous because they won’t be subject to FSMA. This PR blitz is a significant threat. On the other hand, FDA’s rules don’t go far enough to implement Congress’ intent to support local alternatives. To meet these twin challenges, the local, organic farming movement needs to change how our nation talks about food safety.
Every farmer and food maker is either a parent or a child, if not both, and can relate to the tragedy of a losing a loved one. As a parent, I dread the chance that food I prepare for my children with my own hands might cause them harm. No farmer or food maker wants to cause pain with the foods they create. Local food producers agree that they should take effective steps to prevent doing harm to their customers, and they realize that the impact of foodborne illness can be terrible. It’s not a subject of dispute. However, it is intellectually dishonest and manipulative when FDA officials and purported ‘consumer advocates’ attempt to cut-off debate about appropriate food safety regulation by evoking the sheer tragedy of a small number of foodborne illness incidents.
Once we move past that sanctimonious grandstanding, there are three premises that our society must accept in the discussion about food safety:
We cannot achieve zero risk. Even if we irradiated, baked and boiled 100 percent of the food we eat, pathogens will get through somewhere on the journey from field to processing facility to retailer to kitchen to plate, and people will get sick. Microbes are everywhere and hoping to get ahead of Mother Nature through technology is to take the same dead-end approach to food safety that chemical agriculture has lead us in food production. Indeed, many of the interventions we can pursue to limit pathogens will have other negative health consequences because they reduce the nutritional value of food.
We live in a world of finite resources. Governments, large corporations, small business and consumers all must make choices about how to allocate limited time and dollars to address problems. There is only so much money the government can raise to fund food safety enforcement, and small enterprises that want to stay in business cannot spend more to limit pathogens than what the market will pay them for food products. What’s more, given the fact that we cannot reach zero risk, we must recognize there are diminishing returns to additional public and private food safety investments. Beyond a certain point they are ineffective and counterproductive.
Fresh, local, organic food has disproportionate positive impacts on our society. Better diets lead to less heart disease, less obesity, less chronic illness, and happier, healthier lives. Reducing diet-related illness reduces public health care costs. Money recirculated within our own communities makes our economies more resilient, and healthy economies support healthy people. We know that our diet in this country is killing us. Fifty-thousand Americans die every year from colon cancer, almost 250,000 from complications of diabetes, and 800,000 from heart disease. Our diet may be the gravest threat to human health in the U.S. today, the effects of which we will be coping with for another generation or more. Local food systems will be huge in overcoming that threat, and from this perspective, we must evaluate the cost of further regulatory impositions on local food producers.
I say ‘further’ impositions, because one fact that is lost in the discussion of so-called food safety ‘exemptions’ for local food is that these folks are already heavily regulated. From county health departments’ oversight of farmers markets, to licensing and inspections for low-risk processed foods, to good manufacturing practices, and more, local food producers are already laboring under a patchwork of rules and regulations. FSMA’s protections for local food are really about recognizing that this existing legal framework is already working quite well, albeit at a significant cost of compliance to producers and relatively low cost of enforcement for government.
It makes no sense to apply rules designed for complex, national and international food supply chains to the inherently short supply chains that characterize local food distribution. By their nature, local, diffused supply chains impose limits on the potential for contamination and the extent of foodborne illness outbreaks. Safety rules must take that into account if they are to be efficient and effective.
When we proceed from these principles, we can actually start to have the conversation about how we allocate limited resources to reduce the risk of foodborne illnesses. There must be a cost-benefit analysis if we want food safety law to improve public health. And I say ‘improve public health’ deliberately. The local, organic movement is not about building a food system that merely avoids killing us unexpectedly. It is about building a food system that helps us live better.
Roland McReynolds, an attorney, is the Executive Director of the Carolina Farm Stewardship Association, non-profit in Pittsboro, NC, that helps farmers and consumers in the Carolinas grow and eat local, organic food. He directs CFSA’s work on food safety policy and is a member of the North Carolina Fresh Produce Safety Task Force.