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HR 2749 hits the ground running..."

Steve Gilman
NOFA-IC Policy Coordinator
Update 6/21/09

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HR 2749 hits the ground running

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Food Safety Hits the Fan

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Report on Waxman Draft Food Safety Bill

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Understanding Food Safety Regulations for Farm-Direct Sales:

Food Safety Begins on the Farm -- link to valuable materials from the Cornell Good Agricultural Practices Program

Background on H.R. 875

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On June 17th, having made it through the subcommittee sausage-making process mostly intact, HR 2749 -- the Food Safety Enhancement Act of 2009 -- was unanimously voted out the door of the Energy and Commerce Committee and onto the House floor, for possible action by the 4th of July recess. Propelled by Committee Chair Henry Waxman (D,CA) this would be the first legislative update of the Federal Food, Drug and Cosmetic Act since the 1930's if it makes it through the legislative hurdles.

Some consumer wins
Some of the nation's largest consumer groups who have been advocating for stronger standards to protect consumers for years like the bill a lot -- and indeed they held strong influence over the writing of the language. Consumers Union, for instance, touts the following positive provisions:

  • increased inspections of high-risk food facilities at least every 6-12 months -- FDA currently averages inspections once every ten years).
  • FDA will be able to require high-risk food facilities to submit the results of testing their finished food products for safety.
  • all registered domestic and foreign food facilities must identify hazards and implement steps to prevent or reduce contaminants that may appear in food.
  • businesses must keep basic standardized safety records.
  • Authority for FDA to order a recall if a company fails to do so when requested.
  • food facilities selling to American consumers must register with the FDA and pay an annual fee.
  • empowers FDA to set up a method to trace food back to its source in the case of contamination.
  • FDA must review the scientific data on the safety of Bisphenol A (BPA), a plastic additive that appears in many food and beverage containers for possible recall by the end of the year.

Rumor and speculation
For smaller scale farmers - and especially on-farm processors - there are some definite concerns about specific sections of the bill. And, as usual, there are a wide range of internet interpretations and self-serving speculation emerging from across the political spectrum. It's important to realize, however, that there are still a number of opportunities to make positive changes. Right now amendments can be proposed by any member on the House floor and farmer advocates are using their Congressional contacts to address the problematic areas. And the emerging Senate version (more on this in a minute) has different language that then must be reconciled in conference committee before being voted on and passed by both houses of Congress and signed by the President to become law.

Also, NOFA is working with a food safety task force of farming groups in the National Sustainable Agriculture Coalition (NSAC) and the National Organic Coalition (NOC) that have already been instrumental in heading off some earlier bad provisions affecting smaller-scale farmers. By working through consumer groups and directly with Waxman staffers, a number of onerous features that came forth from the precursor Dingell bill HR 759 have been removed. Important language requiring the consideration of potential impacts on family and organic farms was successfully inserted. And task force representatives are in good position to make further gains now that the bill is open to wider amendment.

Farmers exempt but not on-farm processors
Under Waxman's HR 2749, farmers who market directly to consumers or restaurants and grocery stores generally do not fall under FDA jurisdiction. They are exempt from farm registration provisions and registration fees as well as industry traceability regulations requiring expensive bar-code identification equipment. However, FDA has always held the statutory right to track "adulterated" (i.e. poisonous) food in interstate commerce back to the producer and the Waxman bill maintains FDA's inspection and quarantine authority over all farms, restaurants, convenience stores and supermarkets. And the bill requires farms and fisheries to keep records for at least 6 months documenting sales to restaurants and grocery stores.

At this point there are some skewed one-size-fits-all regs that include on-farm processors - makers of jams, jellies, apple butter, lacto-fermented, breads, etc. - under the wider definition of processing "facilities", subjecting them to an annual $500 registration fee to fund inspections. This could easily put many small scale operations who produce a few value-added items to sell at Farmers Markets out of business, for instance. At the same time it's a ridiculously low fee for the giant food companies who present the highest risk in the food system. However, this aspect of HR 2749 is expected to be quickly countered by floor amendments aimed at exempting farm-based producers altogether. While other provisions in the bill give administrators discretion over inspection regulations impacting small businesses, language also has to be cleared up to specifically differentiate definitions of "farms" and "facilities".

There's also a worrisome open-ended provision giving FDA the authority to set future standards for the "safe growing and harvesting of produce" that could negatively impact smaller or more biodiverse farms with livestock, depending on how the regs are finally written. However, competing language in the Senate bill, under the leadership of Senator Dick Durbin (D, IL), would restrict those produce standards to high-risk food items that have already been demonstrated to be problematic in the marketplace. Durbin's bill also contains no registration fees and limits traceability to a pilot program.

HR 2749 is designed as a preventative approach to food safety, in contrast to today's dysfunctional system of trying to fix contamination outbreaks after they occur. As responsible citizens and quality food producers, the sustainable and organic farming community is looking to proactively implement practical safe food methods on the farm. Farmer education and training is a must in this regard - and just as there a role for the NOFAs and other farming organizations as technical assistance providers that is emerging in USDA's Environmental Quality Incentives Program (EQIP), there should also be provisions - and funding -- included in the Food Safety Enhancement Act of 2009 for farmer training.

Meanwhile, internet watchdogs and conspiracy theorists alike are already gearing up their responses and not a few are generating some pretty wild interpretations of this legislation. NOFA folks should be aware that this legislative process has a long way to go with to plenty of opportunity for public input. And even after Congress gets done with it there is still a final rule-making phase where FDA has to codify their regulations and subject them to public scrutiny and comment.

This page was last modified on June 22, 2009 at 12:43:13 PM.

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