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Report on Waxman discussion draft:
"Food Safety Enhancement Act of 2009"

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)

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As Chair of the House Energy and Commerce Committee Henry Waxman (D,CA) is a busy man these days. The committee just marked up a climate change bill, sending it out for comment and they are hard at work on a major energy bill as well as tackling health care legislation. Add to that this new draft bill on food safety. The 120 page draft discussion bill is posted at:

With all the negative publicity regarding the food safety outbreaks, recalls, illnesses and deaths in the centralized industrial food system, plus huge losses for growers, packers and handlers and a lengthening list of successful lawsuits against food processors - the calls for reform of the Food and Drug Administration (FDA) are coming from all quarters. Clearly Congress is under huge pressure to Do Something. And the Administration has its own agency level food safety working group as well.

Some primary provisions of the Draft:

  • Gives the FDA mandatory recall authority.
  • Requires all foreign and domestic food facilities to register with the FDA & pay an annual registration fee of $1000 (see farmer exemption, below).
  • Requires electronic traceability and traceback record-keeping of a food's "pedigree" throughout the food chain (with direct-sales farms exempt, see below).
  • Requires food facilities to prepare food safety plans for FDA audit and requires FDA to set minimum requirements.
  • Inspections: High risk facilities must be inspected every 6-18 mos. Lower risk facilities can be inspected every 18 mos to 3 years. Warehouses must be inspected every 3-4 years.
  • The FDA is required to issue food safety regulations for production and harvesting of fruits and vegetables (more on this below as well).

Grassroots Concerns
In NOFAland and around the nation many small and mid-scale farmers involved in localized, farm-direct sales to customers are concerned that we will be left out of the food safety deliberations and become subject to laws that are solely suited to the largest producers. Developments in the Waxman draft indicate we ARE being heard however. NOFA's memberships in the National Organic Coalition (NOC) and the National Sustainable Agriculture Coalition (NSAC) have provided a viable voice for the grassroots and connected us to the expertise needed to access policy-makers and influence policy.

Together with a NSAC task force and a NOC food safety committee NOFA reps have been making the case for developing distinct scale-appropriate and risk-based educational and technical assistance parameters for growers involved in localized farm-direct sales at Farmers Markets, Community Supported Agriculture (CSA) programs, roadside stands as well as local restaurants, direct wholesale and farm-to-school programs.

The devil's in the details, however - and a line-by-line analysis of the draft bill is currently underway, along with a growing list of strong recommendations for alternative language.

Evolving legislation
As is common in the evolution of any legislation, only a few features from a number of earlier-circulated bills are figuring into the final Waxman Committee markup. For example, H.R. 875, the Food Safety Modernization Act put forth by Congresswoman Rosa Delauro (D-CT) was primarily aimed at moving food safety oversight into a separate agency, for instance, but the general thrust now is to fix the FDA and give it expanded recall and oversight capabilities. Some provisions of the DeLauro bill set off a tremendous Internet firestorm among smaller-scale growers around the country due to some uncertain and misinterpreted language that seemed to threaten farmers' ability to stay in business. Clarifications made during subsequent NOFA visits to DeLauro's Washington office, however, specified that farm-direct sales growers were exempt under her bill.

The Waxman bill borrows most heavily from H.R. 759 "The Food and Drug Administration Globalization Act put forth by Rep. John Dingell (D-MI) - but with some major modifications for small scale farmers now in place. The Dingell bill had onerous food traceability standards requiring inappropriate and expensive electronic bar coding equipment for every farm regardless of size or potential risk to consumers. But under the Waxman draft, growers who are involved in direct sales to consumers (at farmers Markets, CSAs and roadside stands, for instance) as well as direct to restaurants are exempt from this provision.

Borrowing from the Dingell bill, the Waxman draft also utilizes an elaborate user fee system to fund the advanced FDA inspection program - requiring all "food facilities" to register their premises with FDA and pay an annual $1,000 registration fee. But here again farmers are exempt: Sec. 350d. Registration of food facilities ?...

(b) Facility
For purposes of this section: (1) The term ``facility'' includes any factory, warehouse, or establishment (including a factory, warehouse, or establishment of an importer) that manufactures, processes, packs, or holds food. Such term does not include farms; restaurants; other retail food establishments; nonprofit food establishments in which food is prepared for or served directly to the consumer; or fishing vessels (except such vessels engaged in processing as defined in section 123.3(k) of title 21, Code of Federal Regulations)

Potential impacts… and action
A key provision of the Waxman bill giving the FDA Secretary future un-named and broad-based powers to issue food safety regulations for the production and harvesting of fruits and vegetables is most worrisome for farmers at this point. As it is, much of FDA's current authority over farms is not distinctly spelled out in any legislation but is the result of a series of court rulings based on previous FDA actions. The Waxman bill represents an opportunity to clarify such murky language, narrow broad-based guidelines and distinctly state the intent of Congress to inform future FDA activity.

Working in conjunction with consumer groups who have been heavily involved in food safety legislation for years now, the NOFA coalitions have managed to integrate the concept of exempting farms who maintain produce identity preservation in the food chain. As opposed to the mega farms whose production is routinely co-mingled and shipped all across the country, this category includes growers involved in direct sales to consumers or restaurants, for instance - or whose farm-identifying label accompanies their produce to the point of sale.

This Waxman draft has a long row to hoe before becoming law. The energy and Commerce Committee must amend the draft and send the resulting Bill to the House floor for discussion, amendments and a vote and with all the other legislative activity right now this can take lots of time - unless there's another food contamination outbreak that galvanizes activity. At this point, aside from a bill by Senator Durbin (D,IL), there's minimal activity on the Senate side. Once the Senate marks up and votes on a bill, a House-Senate Conference Committee must resolve legislative differences and come up with a final bill that must be passed by both houses of Congress and then signed into law by the President.

Meanwhile, the nation's organic and sustainable agriculture organizations have their own directly accessible activist constituency of highly supportive farmers, gardeners and consumers - who are vocal voters - that Congress will have to pay attention to. The outraged response that produced a record 275,000 comments that was received by USDA in 1999 over the misguided first organic rule is a case in point, and the current strong grassroots response against the National Animal Identification System (NAIS) at hearings across the country is another.

NOFA has made some progress in Congress by taking the responsible high road in helping to quell over-reaction and making reasonable attempts to present valid positions that make it clear that legislation should address the Industrial culprits - and not throw the alternative ag baby out with the bath water. Our grassroots farming support groups have earned the respect of our members and some lawmakers on this - and we need to keep stating our case and continue to use this clout responsibly in developing the draft language. But failing that, if push comes to shove there's the also the realization that we have the ability to orchestrate and unleash a mighty response that lawmakers might not want to find themselves on the wrong side of...

This page was last modified on June 02, 2009 at 1:26:01 PM.

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