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.
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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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Schoolhouse Rock : I’m Just a Bill
Lauren Bush is the Events Chair on the Wagner Food Policy Alliance board and a second-year MPA candidate. . Beyond her involvement with the WFPA, she spent the last three years as an advocate for food safety reform. In her effort to bring positive change, Lauren served as a victim advocate in the food safety campaigns of New York Senator Kirsten Gillibrand and New York State Senator Daniel Squadron. In 2010, Lauren was honored by Pew Charitable Trusts with the Food Advocacy Champion Award for her work, at both state and federal levels, to encourage and advocate for the passage of the Food Safety Modernization Act. Lauren's own experience with food-borne illness and how it made her an advocate for food safety have been published in The New York Times, NY Daily News, the Food Borne Diseases textbook published by Cengage, and featured in blogs for various non-profit organizations. Lauren received her Bachelor of Arts degree in Art History from the University of Kentucky. She can be followed on Twitter at @ltb248.
You really need to do better research: First of all that fifty acre “small” spinach farm is not going to be exempt: It’s grossing at least 1 million a year, selling into the wholesale stream exclusively, and the produce is moving across state lines. Additionally the spinach was processed through a plant that at the time was running almost 80% of all the spinach coming out of Ca. The plant was not designed to handle that volume, hence the food safety measures in the plant were compromised.
Hi Lauren,
RE: your posting in the Wagner Review, “Eliminate exemptions in the Food Safety Modernization Act” — as one who worked on FSMA legislation surely you must realize that the so-called “exemptions” you refer to are part and parcel of the FSMA law that FDA is now charged with implementing through the rule process — and therefore cannot be “eliminated.”
And actually — for the subset of qualifying direct market farmers, the so-called FSMA “exemptions” create alternative, scale-appropriate regulatory pathways for food safety in the marketplace while protecting these small businesses from one-size-fits-all federal regulations designed to address the greater risks of the mass-distribution industrialized food system that comprises over 95% of the US food supply.
Producing and consuming safe food is the province of everyone in the food system — from the farm and processing plant to the distribution warehouse, restaurant and kitchen counter — and we all want to effectively address the risks while assuring a healthful supply of fruit and vegetables in the marketplace. And while microbial contamination is a major concern, FDA purposefully exempts toxic chemical pesticides that are routinely present in our conventional food supply.
FSMA also contains the Stabenow Amendment that calls for funding to train smaller-scale farmers in scale-appropriate, state-of-the-art production methods. As one who works at the grassroots level with farmers in the Northeast I’m seeing a huge demand and real desire from growers who want to do the best job possible. After all the survival of their small businesses and face-to-face relationships with their customers — which are unique in the industrialized food system — completely depend on regularly delivering a quality product to consumers. There’s no such thing as staying in business recall after recall. Under today’s budget climate, however, earmarking these much needed funds for farmer training needs lots of citizen support to make it happen.
Finally, I’m truly sorry for your food illness episode. It’s something that none of us ever wants to see. While I’m not certain of the source of that spinach this is a comment on your posting from a colleague:
“First of all that fifty acre “small” spinach farm is not going to be exempt: It’s grossing at least 1 million a year, selling into the wholesale stream exclusively, and the produce is moving across state lines. Additionally the spinach was processed through a plant that at the time was running almost 80% of all the spinach coming out of Ca. The plant was not designed to handle that volume, hence the food safety measures in the plant were compromised.”
best,
Steve Gilman
Interstate Policy Coordinator
Northeast Organic Farming Association
Hi, Lauren. Was your illness part of the 2006 national outbreak? If so, the farm that grew the spinach would not have qualified for the exemption mandated by FSMA. Despite having less than $500k in sales, the farm would have been denied an exemption because over half of its produce was not sold directly to a qualified end-user. A qualified end-user must be a restaurant, consumer, or retail outlet within 275 miles of the farm.
Also, it is important to note that the exemptions are qualified and not absolute. These farms must still deal with all other State, local, and federal regulations, as well as new labeling requirements. And an exemption from the new standards can be revoked by DHHS if the farm is found to be operating in an unsafe manner.
I’m also at NYU, and I am doing research on the exemptions within the proposed produce safety rules. I’m interested in the impact of the rules on the food system and what impact the exemptions will have on food safety. One of my research questions asks if exempt farms are already meeting the new standards without the requirement. I’ll send you an email and maybe we can communicate further.
Thanks for the opportunity to comment!