Forage SF sent out an urgent letter last night about the new The Food Safety Modernization Act (Senate Bill 510) wich would be one of the most comprehensive reforms of food-safety laws since 1938.
update, Forage SF has updated their message with the following, some of which was already posted here, but that’s not quite the whole story either. The Senate did pass the bill last week, but it’s not law yet and they actually screwed up and have to do it again, because for this type of bill, the House needs to pass it first
http://www.washingtonpost.com/wp-dyn/content/article/2010/11/29/AR2010112903881.html?hpid=talkbox1
Comedy Central’s John Stewart even takes a swipe at the Congressional goof
| The Daily Show With Jon Stewart | Mon – Thurs 11p / 10c | |||
| The Food, the Bad and the Ugly | ||||
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Washington Post has details on the goof but the issues on the local SF Forage scene and farmers markets and community gardens are described below
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from ForageSF today
some new information has come to light since I sent that email about SB510. The food safety and modernization act:
1. I got it wrong. Yesterday I emailed people about speaking out about this bill, since I felt it could endanger the underground food movement by hurting small producers. Turns out the bill was already voted on last Monday, a week before I sent the email, and I really didn’t have all the information being making a decision. The articles I was reading did not give a date, and for some reason I got it into my mind that it was this Monday. Feeling a sense of urgency, I sent an email without realizing that it already passed, as well as not knowing the finer points of the bill, my apologies.
2. Another fact I failed to realize is that the bill had been very much improved with the addition of the Tester-Hagan amendment. With Tester-Hagan, local growers and sellers are given a pass on some of the more onerous measures of the bill. As I understand it, the amendment exempts food producers making less than $500,000/year, those that sell directly to consumers, and to customers within 275 miles of their farm. It also exempts producers that are already inspected by a local government agency (such as the health department). Further, the idea that back yard gardeners being prosecuted for giving away veggies seems to be a media fabrication.
The more I read about this bill the less sure I am about any position. It seems people fall into two camps:
One believes this bill signals the end of small food production as we know it. By placing undue burden on small producers in the form of extra paperwork and record keeping, the cost of which large scale producers can more readily absorb. This camp sees the bill as an Orwellian overhaul of the way we relate to food, criminalizing even the simple act of giving backyard veggies to your neighbor. They imagine hoards of FDA swat teams knocking down the doors of every small farmer in the county that doesn’t file the necessary paperwork.
The second camp thinks this is a positive bill, but perhaps doesn’t go far enough. Although it does give the FDA more power, and require more regular inspections of facilities (up to once every 5 years from once every 10), as I understand it, it doesn’t give them the necessary budget to do much more than that. It does seem to give the FDA new powers to track and inspect food facilities, and to force food recalls, which is a positive step given the recent spat of tainted eggs etc. What it means for producers such as me and the other vendors at the Underground Market, I don’t really know. At the moment we seem to be experiencing (at least locally), a thaw on the puritanical idea that food produced at home is totally unsafe. People are beginning to realize that not every jar of jam made outside a stainless steel clad facility is dangerous. I would like to see that continue and grow. We can only hope that the new regulations achieve their stated purpose of making our food safer, rather than being yet another weapon for big business to use against local food.
This is what I understand from my research, but for an in depth discussion of the bill, check out Grist’s coverage:
http://www.grist.org/article/food-2010-11-05-food-safety-modernization-act
http://www.grist.org/article/food-2010-11-15-food-fight-safety-modernization-act-harm-small-farms
http://www.grist.org/article/food-2010-12-03-the-real-nitty-gritty-on-small-farms-and-food-safety-billAnd this from PoltiiFact: http://www.politifact.com/truth-o-meter/statements/2010/dec/01/blog-posting/food-safety-law-regulate-your-backyard-garden-no-i/
From ForageSF last Friday
There is a bill being voted on tomorrow (Monday) that could completely destroy what we are all trying to build in the SF food community. I don’t usually speak out against congressional bills, I think that more good is done focusing on building locally rather than getting angry about what is happening on the federal level, but this bill needs to be stopped.
SB510 is a food safety overhaul that authorizes fines up to $250,000 for doing exactly what we do at the Underground Market. Selling food made in home kitchens. Killing small food producers, while allowing big business to thrive. It even makes it illegal to give away food from your own home garden.
Food safety is very important, but we need a bill that will protect small scale businesses, rather than the large scale producers to who are often behind major food borne outbreaks.
This bill would theoretically make every vendor at the Underground Market liable for a quarter million dollar fine for selling you a jar of jam. It could also make you liable for those same fines for giving away your backyard veggies to your neighbor.
This won’t just affect the Underground Market, but all the small scale food projects going on in this city and around the country. It would give government officials unprecedented authority to fine and imprison small scale food producers.
I know most of us (and I include myself) often think that our voice has no impact, but this is too important not to act. If you have anything to add, or if you made a call or wrote a letter, let us know on our facebook page here.
Read this for more information on the bill, as well as a sample letter to write to your Representative: http://bit.ly/fwGbwR
Call the congressional hotline to voice your opposition: 1-888-493-5443
Since this is a national bill, you can be sure the debate is raging all over the country, and it is, and there also a lot of scare tactics being used on both sides. One of the better blogs to take it apart comes from Grist
Judith McGeary, founder and executive director of the Farm and Ranch Freedom Alliance: First, the simpler issue: GAPS, or good agricultural practices. You won’t find that term anywhere in S. 510, but the basic substance is in Section 105, which authorizes FDA to issue “produce safety standards” that tell farmers how to grow and raise crops. Page 51 of the bill includes the Tester-Hagan language and exempts farms that gross under $500,000 (adjusted for inflation) and that sell more than half their products directly to individual consumers, local restaurants, or local retail food establishments. There is no requirement for the farm to submit paperwork to the FDA or to register.
The more complex issue is the one with “facilities.” First, let’s sort through the existing law:
“Facilities” are any business that processes, manufactures, holds, or stores food. Under the 2002 Bioterrorism Act, all facilities must register with the FDA. Those regulations have been in force for several years, although enforcement has been very lax.
“Farms” are not “facilities.” BUT, if the farm processes or manufactures food, it becomes classified as a facility.
“Retail food establishments” are also not facilities. Retail food establishments are entities whose primary purpose is to sell to consumers, specifically those businesses that sell more than half of their products directly to individual consumers (not businesses, so the direct sales does not include sales to restaurants, etc). BUT there is also a catch on the retail food establishments issue, namely that the Bioterrorism law is based on each location registering. So, if a business processes food at one location and sell at another — such as someone who makes jams in their kitchen and then sells it at the local farmers market — the existing law is unclear as to whether or not they would be a retail food establishment. FDA has made conflicting statements over whether such operations would have to register under the EXISTING law.
Second, we look at the issues of S. 510 and the Tester-Hagan amendment. S. 510 would layer extensive HACCP-type requirements on every facility that has to register under the existing law. The Tester-Hagan amendment’s purpose was to try to mitigate that harm for small-scale producers. Politically, it was not going to be able to undo the existing Bioterrorism Act.
Even so, the Tester-Hagan amendment DOES fix one of the problems with the existing Bioterrorism Act requirements. The amendment directs FDA to clarify its definition of “retail food establishment” to include businesses that sell more than half their products directly to consumers at locations such as roadside stands and farmers markets, and through CSAs. (See pages 11-12 of the bill.)
So, under existing law, the farmer who makes a few jars of jam from his produce and sells them at a farmers market may have to register with the FDA under the Bioterrorism Act because he doesn’t qualify as either a “farm” or a “retail food establishment.” The same is true for the small-scale bread-maker or cheese-maker. And under S. 510, that farmer/bread-maker/cheese-maker would have to go through the full HACCP-type process. Under the Tester-Hagan amendment, that farmer/bread-maker/cheese-maker would now be exempt from both the registration requirement and the HACCP process as a “retail food establishment.”
Make no mistake — this was a hotly negotiated provision.
That didn’t end the issue, though, because the question is, what about food producers who sell their products directly to local restaurants, co-ops, and other local outlets that are very important to the growth of the local foods movement? The “retail food establishment” exemption, even as broadened by the Tester-Hagan amendment, requires a majority of sales to individual consumers, not businesses.
That’s where the Tester-Hagan amendment kicks in again. A business that is a “facility” (i.e. that doesn’t qualify for the exemptions for farms or retail food establishments) can avoid going through the HACCP-type process by showing that it qualifies, i.e. that it has gross sales under half a million and sells more than half directly to qualified end users (individual consumers, or local restaurants and local retailers). Yes, that will require some paperwork. I would have preferred that it didn’t, and that the onus rest with the agency, but this is what was politically achievable.
Final results under the Tester-Hagan amendment:
1. Farms that grow fruits and vegetables will NOT have to comply with the produce safety standards (often referred to as “GAPs”) if they gross under half a million (adjusted for inflation) and sell more than half their products directly to consumers, local restaurants, or local retailers. The farms are not required to register. They do have to either put label on or display a sign with the farm name and address. And if FDA directly links the farm to an outbreak, the exemption can be withdrawn for that farm; the onus to prove the basis for the withdrawal is on the agency, not the farm. See pages 51-53 of the bill.
2. Businesses that process foods and sell more than half their products directly to individual consumers (not businesses) will not have to register with FDA nor comply with the HACCP-requirements. See pages 11-12 of the bill.
3. Businesses that process foods and sell LESS than half their products directly to individual consumers may have another option if they qualify (i.e. gross under half a million and sell more than half their products to individual consumers, local restaurants, and local retailers combined). They can produce paperwork showing (1) that they qualify and (2) that they comply with any applicable local and state laws. If so, they still have to register because of the existing requirements under the Bioterrorism Act, but they do not have to go through the extensive HACCP-type requirements that will be added on under S. 510. Again, there is withdrawal provision that places the onus on the agency. See pages 19-24 of the bill.
As for the study (pages 24-26 of the bill), the bill directs FDA to conduct a study that would, for the first time, look at the issues of scale and type of processes in relation to food-borne illness. It does not mandate that any individual person hand over the information to the government. Also, FDA is directed to provide a report to Congress within 18 months. Regardless of the agency’s motivations, it would be logistically impossible for it to send agents to every small farm and food processor in the country in that time period. The most feasible course of action is for the agency to use existing data on food distribution (from the census) and outbreaks (from CDC and state health departments), and do follow-up investigations on the source of the outbreaks. And, as is always the case for local foods producers, we need to stay informed and be ready to respond if the agency does try to overstep.
And there’s a positive reason behind this study. In arguing that local foods and small farms are safer and should not be regulated by FDA, we don’t have a lot of hard data to back us up. The directive to do a study is the first attempt to make a get data to show that smaller-scale producers who don’t commingle their products and who do less processing and transportation produce safer food.
None of this is a perfect solution — S. 510 and the Tester-Hagan amendment involved very ugly sausage making. The Tester-Hagan amendment ultimately fixes some of the existing problems caused by the 2002 Bioterrorism Law and a very significant part of the problems that would be caused if S. 510 passes.
But it is, at its heart, damage control. That isn’t the fault of Sens. Tester or Hagan or any of the people who advocated for this amendment. It’s due to agribusiness’s capture of FDA and much of Congress — a problem that has developed over decades and that we will need to spend the next decade fighting.
Gumpert: I appreciate the optimism most have here about the FDA’s good intentions. That has not been its hallmark for small food enterprises, but I suppose there’s a first time for everything.
Also, I definitely would use Judith McGeary for my lawyer if I was a food producer. Unfortunately, I think lots of them will need her. In that vein, if I was advising entrepreneurs about whether to start a business in the food production arena (and I’ve advised a fair number over the years), I would tell them to avoid this entire morass … unless they are prepared to go entirely private, and never register for a single permit.