This post originally appeared on The Sieve.
Update 12/29/2013: In response to the feedback it received, the FDA has decided to revise the Produce Rule. Michael Taylor, the official in charge of the process, promises updated language that will be open to public comment by early summer. Stay tuned!
It’s that magical time of year—after the big harvests and before the hard freezes—when apples at the farmers markets in my area burst with tangy goodness, when the last of the summer tomatoes and peppers mingle with luxurious piles of greens, roots, and winter squash, and when all seems right in the world.
So I admit I found it somewhat hard to believe, while admiring the overflowing stands at my local market last Sunday, that federal bureaucrats would want to make it harder for such enterprises to operate. But that is exactly what some small farmers and advocates are warning. They fear that food safety regulations proposed by the Food and Drug Administration would impose onerous costs on small produce growers, potentially driving many out of business altogether.
The set of regulations arousing farmers’ ire is the “produce rule” of the Food Safety Modernization Act, a law Congress passed in 2010 in response to a rash of well-publicized foodborne illness outbreaks. The act directs FDA to develop and implement “science-based” approaches to food safety, which for the US government seems to mean finding ways to prevent bacterial contamination of food. In March, the agency released a set of proposed rules specifying things like how often produce farmers must test irrigation water, when they can apply manure to fields, how they should manage on-farm animals, and what kinds of records they must keep. The rules are now in a comment period, with a crucial deadline set for November 15.
Thanks to lobbying from sustainable farming advocates, the law does provide some relief for the kinds of growers who sell directly to real people. The proposed produce rule exempts farms with less than $500,000 a year in sales from some requirements, and gives them extra time to comply with others. But small farms covered by the regulations will still face a substantial cost. The FDA itself admits in an economic analysis that if its rules are implemented as written, “the rate of entry of very small and small [farm] businesses will decrease.”
No one disputes the need for food safety. But for many growers already committed to delivering healthy, safe produce, the proposed regulations feel like a slap in the face. Few cases of contamination have been traced to small farms, these farmers point out; indeed the fact that such farmers mostly sell their products locally greatly reduces the risk they will be a source of foodborne illness. As Maryland-based farmers and long-time sustainable food advocates Nick Maravell and Michael Tabor wrote in a recent column, “Common sense and following the data of recent food safety scares lead us to a very strong conclusion: the further the food travels from the farm to the consumer, the more opportunities it has to become a food safety problem.”
In Tabor and Maravell’s view, the FDA regulations could lead to a future in which only sterilized, shrink-wrapped vegetables can be legally sold. That seems to be an extreme view; no grower I’ve talked to seems to think farmers markets will actually disappear. But people are nervous. Ivor Chodkowski, a vegetable grower in Louisville, Kentucky (and a former employer from my organic farming days) says he has not studied the regulations in depth, but he questions FDA’s commitment to protecting small growers. “My suspicion is the law places a burden on small farmers that is not appropriate to their size or the level of risk they pose.”
Others are not yet convinced they need to be concerned. Eric Plaskin, co-owner of Waterpenny Farm in Virginia’s Rappahannock County, says he too hasn’t studied the regulations closely, but he doubts FDA has either the desire or the resources to enforce the more drastic regulations some of his colleagues are warning about. And with all the normal pressures of farming, FSMA isn’t high on his list of worries, Plaskin says. “It’s hard to react to something that isn’t real.”
Ellen Polishuk, co-owner of the Virginia-based Potomac Vegetable Farms (and another former employer), is also taking a wait and see approach, but warily. “We’re paying attention, we are concerned,” she says.
Unlike Waterpenny, PVF earns enough to be subject to the full burden of FSMA produce regulations. However, Polishuk feels confident she has already put in place many of the required improvements, and has the resources to adapt to any other reasonable regulations the FDA might hand down. But she also agrees that certain aspects of the regulations could make life difficult for smaller growers. “We have money to do capital improvements,” she says. “Maybe for a grower half our size or a quarter of our size, those kinds of improvements would be more economically damaging.”
These warnings can’t be dismissed as just a bunch of farmers and activists being paranoid. Even people from federal agencies have raised concerns. Former US deputy secretary of agriculture Kathleen Merrigan has been quoted as saying the regulations have “the potential to transform, disrupt, improve and potentially destroy some operations.”
To those concerned about the law’s impact, the FDA has provided little reassurance. Michael Taylor, the official in charge of implementing FSMA, has promised that he will not take a “one-size-fits-all” approach to food safety. But this is cold comfort to some, who worry that as a former Monsanto executive, Taylor may not be attuned to the needs of growers who aren’t supplying large, multi-state operations. I haven’t had the opportunity to interview Taylor (a call to his office was not returned), and I’m not aware of any evidence that he’s planning to use FSMA as a weapon against small farmers, but the anodyne statements he has given to other journalists reporting on FSMA do little to inspire confidence that he has small growers’ interests at heart.
As someone who shops at a farmers market nearly every week, I am, if not quite alarmed, at least concerned. And I am frustrated that the national media—the people who are supposed to hold government and industry accountable—have barely reported on FSMA, much less the produce regulations. Even the food activist community has been mostly silent, choosing instead to push for labeling of genetically modified food. As a result, this may be the first you’ve heard of FSMA. But it will affect every eater in America, and if you are one of them, this might be a good time to start paying attention.
I am also struck, as someone who has written about Rachel Carson and Silent Spring, how little seems to have changed in the national conversation about science’s proper role in agriculture. In her 1962 book, Carson strongly criticized the supposedly “scientific” methods being used to try to control insects on farms, and cited an armada of scientific studies on the health and environmental effects of agricultural chemicals then in use. Going further, she warned that large-scale monoculture farming combined with large-scale pesticide spraying had thrown off the “balance of nature,” which had in the past kept ecosystems healthy.
With its top-down, command-and-control approach toward bacteria, the FDA has now reopened this bitter debate on a different front. Today’s regulators and food safety groups seem to believe that the right rules and practices in place can control the risks inherent in large-scale industrial agriculture and the system can be made to function safely. They are essentially repeating the arguments the of the 1960s (and to some extent, today’s) pesticide industry. Meanwhile, small growers and sustainable farming advocates argue that industrial agriculture is broken, and that their model provides an alternative—one where well-functioning, diverse ecosystems, if allowed to thrive, can keep foodborne pathogens in check.
In at least one sense, the small farmers certainly seem to have the data on their side. As they frequently point out, few foodborne illness outbreaks originate at small farms (though occasionally they do). The FDA website provides a list of cases of contamination it has investigated over the past few years. You’ve probably heard of some of them—E. coli in spinach, salmonella in peanut butter, cyclosporiasis in cilantro. All of them, as far as I can tell, were traced to large farms, some of which were as far away as Mexico.
Critics of the produce rule also point out that it fails to take advantage of well-established and scientifically based conservation practices that could enhance food safety. Because so much land in our country is privately owned, farmland conservation programs are critical to providing habitat for wildlife. Even small strips of grass and other vegetation around crops have been shown to block E. coli, one of the most common harmful foodborne bacteria, from spreading onto fields. But the proposed FSMA produce regulations do nothing to encourage these practices.
In some cases the proposed regulations even conflict with the National Organic Program, which (ideally, at least) provides guidance for growing healthy food in a sustainable manner. One of the foundational practices of organic farming is applying animal manure—sometimes composted, sometimes fresh—to fields, in order to provide fertility for crops. In a properly managed compost pile, potentially pathogenic bacteria should quickly be outcompeted by beneficial species. Nevertheless, proposed FSMA rules require lengthy intervals between manure and compost applications and vegetable harvesting, making this practice impractical if not impossible.
Perhaps most worryingly, the cost of compliance with the produce rule appears to fall squarely on the farmer. FDA estimates farms with under $500,000 in annual sales will need to spend nearly $13,000 per year to comply. In an industry of already razor-thin margins, that could prove a major burden for many farmers. And for a law that is ostensibly intended to promote health, putting growers of the most healthy kind of food—fresh fruits and vegetables—out of business would seem to be, to put it mildly, counterproductive.
The irony of the situation is that few, if any, farmers actually oppose reasonable food safety measures. Indeed, small farmers have strong incentives to be conscientious about keeping their produce safe, because no one has more to lose from an incident of food contamination than someone whose business depends on personal relationships with customers. And even critics of how FSMA is being implemented grant that its original intent was good and that it contains some positive measures.
But the FDA’s proposed produce regulations reflect an anemic and outdated view of how science can help improve our food system. For one thing, our environment teems with bacteria, molds, and other microbes, and it is absurd to think we can eliminate all of them from our food. Indeed, scientists are now telling us that in some cases, it may not even be in our best interest to try. We are learning that the benign bacteria in our environment vastly outnumber the bad, and that many of them actually enhance health. As Michael Pollan wrote recently in the New York Times, “some of my best friends are germs.”
Even more telling, however, is how thoroughly FSMA fails to address the real problems with our food system. Though FDA claims the law will prevent 1.75 million illnesses a year, it admits that only around 14,000 cases of foodborne illness have actually been traced to tainted produce in the 15 years from 1996 to 2010. Reducing that number would certainly be a good thing, but it is already tiny compared to the number of people suffering from other food-related health crises. Most obvious of these is that nearly two-thirds of our population is either overweight or obese, and thus at heightened risk for heart disease and other illnesses. Cases of diabetes have also soared in recent decades. And both of these crises can be traced in large part to our agriculture policies, in particular the misplaced subsidies that make many kinds of processed food cheaper and more accessible than vegetables.
These may not be food safety issues per se, but they could be exacerbated if the produce rule does kick vegetable farmers out of the marketplace. Plenty of other modern agricultural practices, meanwhile, do seem to fall squarely into food safety regulators’ purview. Perhaps most alarmingly, drugs commonly fed to meat animals to encourage faster growth may be creating antibiotic-resistant superbugs. And despite lessons supposedly learned over 50 years ago from Silent Spring, American farmers spray far more pesticides on their fields today than they did in the early 1960s. These chemicals are far from benign; many are known or suspected carcinogens, neurotoxins, and endocrine disruptors.
These are the true food safety problems, and FSMA does nothing to address any of them. Instead, it threatens to reduce the number of places where consumers can buy what are probably the most effective preventive health measures known to science: fresh, healthy, locally grown fruits and vegetables. And that, I think we can all agree, takes us in entirely the wrong direction.
For the full text of the FSMA and the proposed produce rule, go to the FDA’s website.
If you don’t want to slog through the 548-page produce rule, I don’t blame you. The National Sustainable Agriculture Coalition provides a helpful summary and analysis.
And you can comment on the produce rules through November 15.