Image via The Fresh Facts Blog

Image via The Fresh Facts Blog

After I battled foodborne illness in college, it was cathartic to work with the Food Safety Coalition to pass the Food Safety Modernization Act (FSMA). When President Obama signed the Act in January of 2011, it was the triumphant moment for which all food safety advocates had been waiting. To put into context what a landmark achievement the Act was for its proponents, consider that the FSMA is the first major U.S. food policy change since 1906, when the publication of Upton Sinclair’s The Jungle jolted lawmakers into action.

Prior to the passage of the FSMA, the Food and Drug Administration (FDA) had very little power in terms of actively ensuring food safety. The only real response to an outbreak of foodborne illness was reactive, but not preventive. In fact, if the FDA knew that a company was the source behind an outbreak, it didn’t even have the power to order a mandatory recall, leaving the fate of every recall decision to companies. Does the honor system really seem like the best way to protect Americans from life-threatening illnesses?

Take the tragic case of ConAgra’s Peter Pan peanut butter in 2006. The company knew its product was tainted with Salmonella for a full month before issuing a recall, no doubt because of the negative effects a recall would inevitably have on its business. The negligence of this one company killed eight Americans and sickened 19,000. After the plant where the outbreak originated had been cleaned up, a reporter asked the company’s spokesperson if they would voluntarily notify the FDA if a future outbreak occurred. Her response was both telling and discouraging: “Your question is new for us. It’s one the company is considering.” The Food Safety Modernization Act takes away the option for a company to choose profits over the safety of its customers.

Another feature of the law is a commitment to more frequent inspections. Prior to the FSMA, domestic food processing facilities were inspected once every ten years. Now, facilities must be inspected a minimum of once every three years, with more frequent inspections of the highest-risk facilities. The remaining tenets of the FSMA include further regulatory guidelines for all levels of the food system, from the farm to the store display. Before the FSMA was in place, however, guidelines for food safety were entirely voluntary, unregulated, and unique to each individual food company. This anarchy resulted in a deeply fragmented system that sickened 48 million Americans every year.

After the bill was signed, almost two years passed before the FDA published a partial list of proposed rules outlining the logistics of the FSMA’s implementation. Released early last month, the rules will be available for comment until May 16, 2013, at which time they will be revised and (hopefully) fully implemented over the next four years.

The first rule focuses on general, risk-based, preventative controls and hazard analysis—including, for example, unprecedented water and soil safety measures as well as farm worker hygiene requirements. The second rule focuses specifically on the growing, harvesting, packing and holding of produce. Since fresh fruits and vegetables have the highest risk for contamination, this rule is paramount. The remaining rules, which focus on foreign importation and pet food standards, are hopefully coming out sometime later this spring.

While I am impatient for the full implementation of FSMA, I must commend the FDA for the steps it has taken so far. It is, after all, difficult to write new national policy standards when the best comparison you have was written before most homes had electricity. That being said, while I do not take issue with the gestalt of the policies, some of the quirky exemptions have left me perplexed. The rules are strong and the exemptions serve only to weaken them. According to the FDA, some produce items are exempt because they are consumed after being cooked, which kills most traces of any possible contaminants. For the most part, this is justifiable. For example, it seems unlikely that one would eat brussels sprouts, asparagus, or artichokes uncooked. But by this same line of reasoning, it seems completely unfounded that kale and figs, which are often eaten raw, would also be exempt. While the rules are up for public comment, the FDA is mum on the matter and frankly, we may never know why the exemptions are so contradictory.

The other proposed exemption that I find maddening is much more hotly debated: that farms that earn less than $500,000 in annual revenue be exempt from the bill entirely. While I completely understand that many consumers view small farms as safe and believe such legislation would only harm their livelihood, I must respectfully disagree with this exemption. The contaminated spinach that almost cost me my colon came from a fifty-acre organic farm. Small farms may be saf-er, but they are not necessarily safe. They are certainly not foolproof.

All of this being said, I urge you, reader, to go to the FDA website and read over the rules for yourself and post your public comments on the dockets. I can’t promise it will feel cathartic, but your voice will be heard and that’s essential to shaping the future of America’s food system.


AUTHOR UPDATE (Published at 2:52 P.M. on Friday, 3/15/2013):

I would like to thank everyone for their thoughtful comments, though I must respectfully disagree with some of them.

It is true that the specific farm that caused me to fall ill might not have been exempt from this bill. But my point in relating my experience with foodborne illness is that smaller farms (which by most definitions would include fifty-acre farms) are not necessarily safe. As I wrote, “they are certainly not foolproof,” as my experience shows, and thus exempting smaller farms from the bill is a mistake.

My experience was also intended to highlight the importance of foodborne illnesses more generally and how they are symptomatic of a broken food system. Because our food system is designed to be ‘reactive’ and not ‘preventative’, it was weeks before an official recall was put in place and three months before the outbreak was finally pinpointed. The consequence of these delays was hundreds of avoidable illnesses. These problems plague both large and small farms. It therefore makes no sense to exempt small farms from the bill designed to solve these problems.


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