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Food Safety Hits the Fan:
Regulatory Action, Inaction and Over-reaction
and the Effects on Small Scale Growers

Steve Gilman
NOFA-IC Policy Coordinator

NOFA's Public Policy Initiatives

Stop GE Alfalfa


Comments to the Justice Dept on Ag Concentration and Competition Issues

HR 2749 hits the ground running

NSAC Statement of Food Safety

Food Safety Hits the Fan

NOFA Policy Report

NOFA's GAPs Comments to FDA

Report on Waxman Draft Food Safety Bill

An Integrated Approach to Food Safety

Small Farm Food Safety Action Items

Beware USDA's Good Agricultural Practices

Organic Food Safety - Regulatory Requirements

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

National Organic Coalition (NOC)

National Sustainable Agriculture Coalition (NSAC)

Search for your
Representive/Congress Person

Food contamination happens! Just look at the headlines, periodically full of government alerts and industry recalls concerning everything from toxic tomatoes to pathogenic peanut butter and sullied spinach. For home gardeners and farmers alike there's no doubt that paying close attention to food safety from soil to stomach are just plain good agricultural practices. And even though organic standards have many extra food safety standards for certified growers to comply with - including audit trails, no fresh manure use on crops, strict composting parameters and requirements for regularly testing the farm's water supplies - organic growing per se is clearly not immune to food contamination problems.

Outbreak du jour
Today's largest infectious outbreaks have mostly to do with toxic strains of E. coli and salmonella bacteria. Both contaminate food through contact with feces and can be transferred to produce by such diverse vectors as animals, birds, humans, wind and water. But there's no obvious way to discern if the groceries are safe - many contaminated foods look, smell and taste normal. Current agency estimates are that food-borne illnesses sicken as many as 76 million people each year, resulting in more than 325,000 hospitalizations and 5,000 deaths.

Here in Winter, 2009 the outbreak du jour is salmonella in processed peanut butter -- again implicating the centralized industrial food production model as a major cause of far ranging contamination. Traced back to a single processing plant in Georgia, investigator's efforts have led to the recall of over 180 products in everything from baked goods to snack crackers and protein bars. This outbreak, in what experts consider a normally safe food, sickened more than 500 people in 43 states and led to eight deaths. This time the investigation stopped short of the farmers, however, because the raw peanuts were roasted before processing - killing any bacteria that might be present to that point.

And while the Georgia plant did not sell directly to stores, they supplied a wide range of big food makers like Kellogg and General Mills; numerous smaller manufacturers including Jenny Craig diet foods; and a considerable number of institutions including schools and nursing homes that serve the most vulnerable populations. FDA has been severely hampered by repeated cuts in funding and staff since the deregulation glory days of the Reagan Administration. Domestically, in 2008 they managed to inspect 5,930 food production plants - out of a total 65,520 facilities around the country.

Scary Spinach Food contamination is not just the province of manufacturing plants. The nationwide E.coli O157:H7 spinach outbreak in the late summer and fall of 2006 put the risk of infected farm produce squarely in the public eye. Baby spinach is part of the pre-cut "leafy greens" trade that includes ready-to-eat salad mixes and lettuces packed in special moisture-conserving "breather" bags and plastic clamshells that extend the shelf life up to 17 days. Just shake it out of the bag, add some dressing and Voila! - it's salad time. According to the FDA, however, contaminated produce causes 15% of all toxic food outbreaks with the highest risk commodity groups being leafy greens, tomatoes, melons, herbs and green onions in that order.

Once the sickness reports started to mount up across the country it took weeks to link the outbreak to spinach consumption and weeks more to trace the contamination back to a single 16,000 pound shipment from Natural Selection Foods, a state-of-the-art California packer holding 6% of the national market. Processing 26 million salad servings a week, they also pack for their own Earthbound Farm label - the largest organic grower and shipper in the country. This co-mingled batch happened to be conventionally grown, however, and was cleaned and packed into 6 ounce bags and distributed nationally under Dole and several other brands. By the time this comparatively swift outbreak was over the toxic greens had left 205 confirmed illnesses in 26 states with 103 hospitalizations and 3 deaths in its wake.

Again, fingers were pointed at the market concentration of large-scale industrialized growers and handlers where a single contamination event can affect thousands of eaters all over the country. Designed for a burgeoning consumer convenience market, leafy greens have grabbed fully two-thirds of the nation's fresh-cut vegetable sales over the past decade. Bagged spinach sales alone constitute a $200 million annual market. But this new product category is fraught with intrinsic drawbacks that can exacerbate food safety troubles.

For starters, the myriad cut surfaces in a bag of leafy greens are potential infection points. Bacteria can hide in craggy leaf textures and consolidating thousands of pounds of greens from several farms en masse into one wash can spread the pathogens throughout the whole batch. While the greens are treated with a series of chlorine and citrus rinses at the packing facility - a procedure which usually destroys common bacteria - the E coli super-strain 0157 H:7 seemed to survive unscathed. Since the greens are intended for raw consumption they lack a further cooking stage that more definitively destroys pathogens - as in ground beef, for example, or broccoli. And while designed to significantly extend the life of the product in the truck, the supermarket and the home refrigerator - the plastic bags and clamshells can act as mini greenhouses to incubate and greatly multiply any disease organisms present.

In a pattern similar to a 2008 salmonella scare in tomatoes, the media coverage and public alarm about the spinach contamination event had a devastating economic impact on leafy greens growers all across the country. Even though the outbreak was traced to a single field in California, in the public eye all greens were tainted and even small scale growers at Farmers Markets far from the outbreak's epicenter suffered big slumps in sales. Meanwhile, product liability lawsuits were gathering at Natural Selection's door.

Although to this day there still are no definitive answers as to how the spinach field became contaminated by the virulent E coli, government investigators determined the likeliest source was a cattle ranch a short distance away. The pathogenic manure could have been carried by dust in the wind, storm runoff into irrigation systems or even feral pigs who ate the cow feces and deposited it in the spinach fields via their own manure. However, there's very little science to definitively back up any of these transmission theories. And there's even less science to justify the industry reaction that followed.

"Voluntary" standards
Dealing in perishable merchandise, the fresh produce business is particularly vulnerable to market disturbances. Experience has proved that public health warnings and national recalls are disastrous for the industry's bottom line. So are class action lawsuits. As the din of negative publicity and recalls took its toll, supermarket shoppers hurried by the bagged greens display for something they deemed more healthful. It wasn't long before the west coast spinach industry was losing a million dollars a day and growers were plowing down their fields of greens.

Responding with unprecedented action, 60 packers representing 99% of California's bagged greens industry convened to deal with the crisis. Smaller stakeholders were not invited, however, and had no say in the initial proceedings. Within a few months the handlers hammered out a 50 page set of rigid regulations - that were aimed squarely at farm practices, not their own. Called the California Leafy Green Marketing Agreement (LGMA), the rules spelled out the "Good Agricultural Practices" or GAPs farmers have to comply with in order to do business.

For handlers, (the category includes packers, processors, manufacturers, shippers and supermarkets) marketing agreements also serve several key defensive functions - not the least of which is protection from lawsuits. By requiring farmers to undergo third party verified farm audits and inspections to meet their strict market standards, the handler's liability is substantially reduced via a "reasonable care" defense in the courtroom. There are also significant reductions in insurance costs. And, at the heart of the action, after $100 million in industry losses, a P.R. campaign was designed to reinstate the healthy image of leafy greens for consumers and get the industry back on track.

Although most marketing agreements are "voluntary'" - they are in fact compulsory when the farmers have no choice but to deal with the handlers to stay in business. Third party audits are also becoming a de facto requirement for farmers all around the country who want to supply everything from local school lunch programs to area supermarkets. For smaller-scale farmers looking on, it isn't far-fetched to worry about industry insiders using a safe food pretext to ramp things up into a self serving, one-size-fits-all, national marketing order - which requires mandatory compliance from everybody in the trade. Meanwhile, there's a danger that specialty crop groups in other sections of the country are looking to forge marketing agreements in conjunction with their state departments of agriculture in order to gain market share.

Nuke and destroy
From an ecological perspective, let alone an organic farming one, the GAPS matrix outlined in the handler's 2007 Marketing Agreement was an environmental disaster. Under the name of assuring food safety, the regs literally took a scorched earth, sterilization approach to farming: burning and bulldozing grassy buffer areas down to bare ground; removing hedgerows and windbreaks; channeling and re-routing streams; poisoning wildlife; fumigating soil organisms and constructing huge fences as well as draining ponds, filling in wetlands and removing vegetation to destroy animal, bird and amphibian habitat. Often this meant ripping out conservation enhancements and wild habitat put in place over many decades by state and USDA programs to protect water quality and wildlife. To start, the initial LGMA directive directly impacted 140,000 acres.

For smaller scale farmers the handler's food safety regs were plainly ruinous. The GAPs matrix was far from being scale neutral. Instead of just targeting fresh-cut leafy greens - it included small-farm specialty crops like kale, collards, beet greens and Swiss chard. Requirements for 30 foot non-vegetative buffers between crops and streams or wildlife habitat took relatively larger bites out of small field holdings. Fencing to keep out proven low-risk 0157 animal vectors such as deer and rodents were exorbitantly expensive. Water testing schedules did not accommodate multi-crop operations. And, for smaller operations without support staff, the heavy burden of paperwork, documentation and audit costs were overwhelming.

Essentially, long-proven biodiversity practices are the gold standard for protection from pathogens, pests and pollutants for organic farmers especially. The USDA's National Organic Program requires certified farmers to maintain and enhance the farmscape -- from soil and water to woodland, wetlands and wildlife. As opposed to the conventional pesticide-reliant monoculture system, for example, build-ups of pests, weeds and diseases in the field are controlled to a large degree by annual rotations to other plant families and intermittent sod crops. Grassy strips, hedgerows and windbreaks serve as filters for pollutants and barriers to pathogen encroachment via dust and downpours. And the LGMA's "good agricultural practices" did not begin to address the use of toxic pesticides, chemical fertilizers and soil fumigants that are standard inputs for the large producers, but not allowed under the organic regs.

California groups such as the Wild Farm Alliance and the Community Alliance with Family Farmers (CAFF) led an outraged public response with publicity, research briefings, teach ins and political pressure on public officials. As wildlife buffers and conservation infrastructure were being dismantled in the Salinas Valley and other agribusiness strongholds, sustainable and local agriculture advocates mounted a public campaign to explain the issues. As a result, the LGMA was somewhat modified - reducing buffers and lessening impacts on wildlife habitat.

But the industry did not sit still. Fearing losses to the west coast competition, Arizona handlers developed their own marketing agreement. Soon, the biggest industry players in California responded, upping the ante. With the aim of gaining a greater market share and recouping their losses from the spinach scare they escalated their initial LGMA regulatory requirements into super strict "supermetrics." And once big liability-adverse buyers like McDonalds and Walmart signed on, the stringent provisions became a new part of business as usual for growers.

Despite the lack of sound scientific rationale, farm fields now had to have 450-foot bare earth buffer zones to streams, for example, and 200 foot zones next to grazing lands. The ubiquitous toads and rodents that inhabit farm fields became newly targeted enemies, as much as for their capacity to foul the giant harvester machines as for any (scientifically unverified) food safety parameters. And to assure compliance on the ground, the auditors were solely trained to strictly interpret the farm sanitization regs without any certification in agricultural natural resource protections.

The gaps in GAPs
With the hamstringing of effective governmental protections there has emerged a tremendous demand - and market - for privatized food safety products and services. The proliferation of stakeholders with a piece of the action in this lucrative field range from research groups, academia and state Departments of Agriculture to auditing firms, certification bodies and food safety training companies. Some critics say law firms acting on behalf of consumers are driving the food industry, as they have the most power to influence food safety practices and bring about meaningful changes. Of course with all the pricey class action settlements, lawyers are clearly serving their own proprietary interests. But lately the top law firm in the field, Seattle-based Marler-Clark, is casting an eye on the legal exposure in local food systems, including Farmers Markets, roadside stands and CSAs.

The concept of using a Good Agricultural Practices approach to assure food safety has been around for years. Here in the east, GAPs work was done in the early 1990's at Cornell University as part of a regional extension initiative. The project took a commonsense non-regulatory, non-verification approach to farm food safety practices based on good sanitation practices and worker training. An updated manual, "Food Safety Begins on the Farm - A Grower's Guide" is currently available, with many other useful grower's materials, on their website at, featuring valuable user-friendly information on reducing risk in everything from worker hygiene and storage facility sanitation to manure management.

Farmers, however, are now faced with a baffling array of GAPs programs. As is their wont, USDA took the basic Cornell material but ramped it up into a regulatory checklist and certification program -- while still calling it GAPs. In 1998 FDA also developed a program, officially titled the "Food and Drug Administration's Guide to Minimize Microbial Food Safety Hazards for Fresh Fruits and Vegetables" but known as the GAPs Guide, for short. And they're currently in the process of conducting hearings and taking comments to renew and revise those guidelines. State agriculture departments have gotten into the act by creating their own GAPs programs, conducting audits under USDA accreditation. Finally, third party verification programs are allowed in most states, all certifying to some form of GAPs parameters.

All of the GAPs programs are "voluntary" at this point - from a legal point of view anyway. But to protect themselves from liability exposure, more and more wholesalers and buyers are requiring some form of GAP certification from their growers. Come traceback time they can point to the due diligence of having a farmer's certificate on file in the office.

GAPs certification comes at a price and widespread adoption would present significant barriers for diversified small-scale and organic growers looking to supply school lunch programs, their local University, supermarkets or larger wholesale produce markets, for example. The cheapest GAPs audit available to farmers in New York State is through the Department of Agriculture and Markets at $93 an hour but the fee also includes travel time to and from the farm, plus the expenses of an additional surprise inspection. NYS was able to secure a Specialty Crops Grant from a new program written into the 2008 Farm Bill that compensates farmers for up to $750 in audit expenses, however, with enough funding to cover 200 certifications in 2009. These monies are currently available to other states that apply.

While the NYS GAPs program lets the grower develop their own customized farm plan that is then inspected under a USDA-accredited audit, the Maine Department of Agriculture takes a more stark FDA-style approach. A "farm assessment" section uses a yes/no scoring system that automatically deducts points for produce farms that keep livestock - or if there are other livestock farms within two miles of the farmstead. Further points are deducted for bringing manure or manure-based compost onto the farm and for the field presence of wild animals, something almost impossible to comply with.

Due to extensive biodiversity practices, however, organic farms could easily not qualify under the Maine GAPs matrix and would be prohibited from dealing with school lunch programs and wholesale entities. The Maine Organic Farmers and Gardeners Association (MOFGA) has responded to this predicament by creating their own third-party food safety training and verification program based on another FDA food safety matrix called Hazard Analysis and Critical Control Points or HACCP (pronounced Hass-Up).

GAPs has become a policy priority for the NOFAs as well. The "leafy greens issue" rose to the top of the list at the 2007 NOFA Interstate Council retreat and was accentuated for 2008-2009. An east coast Leafy Greens Working Group has been created with a membership that includes the NOFAs, MOFGA and FOG (Florida Organic Growers) along with participation from the National Organic Coalition, the National Sustainable Agriculture Coalition, Food and Water Watch and the Center for Food Safety, among others.

The Working Group is in the process of developing approaches that can utilize GAPs compliance to create a crosswalk to provisions already present in the certified farmers' Organic Farm Plan. Members are responding to the FDA GAP Guide rulemaking in attempt to keep the program voluntary and responsive to small-scale growers. There's also an effort to identify researchers to look at the science and develop protocols to better serve organic farmers. And there's an opportunity for the NOFAs to provide basic food safety training for their farmers under a HACCP-style protocol - if as in Maine, so goes the nation and a GAPs alternative becomes necessary. But for small farmers at this point everything is in flux.

This page was last modified on March 25, 2009 at 7:42:42 PM.

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