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Consumer Groups Get it Wrong on Tester

October 20, 2010


National Sustainable Agriculture Coalition
For Immediate Release
October 20, 2010

Contact: Ferd Hoefner, 202-547-5754

Consumer Groups Issue Badly Flawed Analysis
of the Pending Tester-Hagan Food Safety Amendment

The National Sustainable Agriculture Coalition, representing 40 grassroots family farm, food, rural, and conservation organizations from all regions of the country, today responded critically to a letter and analysis sent to the United States Senate by a coalition of 9 national consumer organizations opposing an amendment to be offered by Senators Jon Tester and Kay Hagan to S. 510, the Food Safety Modernization Act.

“On the basis of a surprisingly inaccurate analysis of what the Tester-Hagan amendment proposes to do, the organizations behind the letter to Senators reach a conclusion in opposition to the amendment,” said Ferd Hoefner, NSAC’s policy director.  “Our strong hope is once they look at the actual details of the amendment they will change their position.  The sooner they remove this damaging new roadblock to passage of the Food Safety Modernization Act in the short time left in this session of Congress the better.”

A cloture vote has been scheduled on the Senate food safety bill for November 17.  The “Manager’s amendment” to the bill, likely to be the first amendment dealt with if cloture is reached, includes several provisions backed by NSAC to address the concerns of small and mid-size family farmers, diversified sustainable and organic agriculture, and conservation and environmental impacts of food safety regulation.  However, the managers of the bill were not able to reach consensus on final language for the Tester provision prior to a cut-off date in early August.

The Tester amendment would improve food safety outcomes by creating size-appropriate alternatives to the requirements in the underlying bill for “preventative control plans” for very small processing facilities of all types as well as for those with less than $500,000 in annual sales that primarily direct market their products to consumers, stores, or restaurants and do so within state boundaries or within 400 miles of the farm or processing facility.  Under current FDA rules, a wide range of farming activities broadly qualify as “processing” and thus qualify those farms as processing “facilities” that fall under FDA’s regulatory controls.

“All farmers should have food safety plans based on the particulars of their situation,” said Hoefner.  “However, it is critical that as we ramp up food safety protections we do not inadvertently create economic havoc for our family farmers or shut down new investments in local and regional food systems that are vital to economic recovery, public health, and nutritional wellbeing.”

“Senators Tester and Hagan would improve the bill by applying appropriate food safety mechanisms for small farms and small food facilities rather than misapplying ones directed at large national and multinational corporations,” Hoefner continued. “The alternative “one size fits all” approach is impractical, wastes scarce federal resources, and does not improve food safety outcomes.”

NSAC supports a vote for cloture on S. 510, supports passage of the Manager’s Amendment and the Tester-Hagan Amendment, and with those amendments in hand, supports final passage of the bill by the Senate and then hopefully the identical bill by the House of Representatives prior to the conclusion of the lame duck session.

The consumer group letter and analysis, dated October 19 and sent to the full Senate, was signed by Center for Science in the Public Interest, Consumer Federation of America, Safe Tables Our Priority, Consumers Union and five other groups.

A point by point rebuttal to the consumer group analysis of the Tester amendment follows.

Consumer Group Claim #1:

“The exemptions for small operators in the Tester amendment are based only on the sales volume of the grower or processor ($500,000 in annual sales) and its geographic proximity (within 400 miles) to a qualified end-user (which can be a consumer, a grocery store or a restaurant). They do not take into consideration the risk to human health posed by a particular food item. As a result, high-risk foods would be exempt from federal safety regulations, even where there are no applicable state regulations.”

First of all, there is an exemption in current law for any food from any food facility that direct markets more than 50% of total sales to consumers, without respect to level of risk or any other factor.  Many of the groups that signed the letter and analysis have supported that current law provision.  It is difficult to understand how their support for current law, and their support for the food safety bill passed by the House in 2009 which codifies the 50% rule, meshes with opposition now to a more limited amendment to the “preventative control plan” provision (sometimes referred to as the HACCP provision) in the amendment.

Second, there are two provisions in this section of the Tester-Hagan amendment, even though the consumer group analysis refers to just a single provision.  The alternative to full preventative control plan requirements would apply to (1) very small facilities (to be defined by FDA in regulation) and to (2) farms and other facilities that sell 50% of more of its total sales to directly to consumers, grocery stores, or restaurants, have less than $500,000 in annual sales, and are located within the same state or 400 miles of the direct market end user.

The groups omitted reference to the “very small facilities” language and also omitted reference to the 50% or more direct sales requirement in the second instance.

Third, the groups are also misleading in referring to the alternative requirements as exemptions.  The alternative requirements themselves are also conveniently omitted in the consumer analysis.  From that omission, they then leap to an erroneous conclusion with respect to state regulation.  In reality, the Tester-Hagan language contains two alternative requirements for the farmers and other facilities in the “very small” or local, direct market categories.  If the farm or facility is already regulated by the State, the farmer or facility must provide documentation to FDA showing they are in compliance.  If state regulation does not exist, or if the farmer would in any case prefer to implement federal preventative control measures, they can provide documentation to FDA showing they have identified potential hazards and are implementing and evaluating preventative controls.

Fourth, the notion of “high risk foods” is itself misleading.  Particular practices, irrigation methods, processing techniques, packaging types, and distribution methods can be more or less risky, but the food or commodity, in and of itself as a category, is not where the risk lies.  This misplaced focus can only work to the detriment of real progress on food safety in the real world.  It is incredibly important to implementation of the bill if it becomes law that FDA’s risk assessments make this very important distinction.

Finally, coming back full circle, under current law, all farms and facilities are exempt if the 50% or more of their total sales are direct sales to consumers.  That current law provision is not changed by S. 510.  What the Tester-Hagan language does is add two new categories of direct sales to the equation, direct sales to stores and restaurants.  It does so not with respect to all the requirements of current law or S. 510, but specifically with respect to preventative control plan requirements in the new bill.  But rather than simply adding everyone with more than 50% direct sales to restaurants and stores, the Tester-Hagan amendment limits the application to farms and facilities with less than $500,000 in sales and to those selling in state or within a 400 mile radius.  This is a common sense, carefully compromised trade-off, and certainly one that is far more refined and balanced than the existing law provision that some national consumer groups have long supported.

Consumer Group Claim #2:

“By contrast, many state “cottage food” laws and regulations, which exempt home and non-commercial kitchens from licensing and inspection requirements, apply only to low-risk food items (such as bread and jams). Furthermore, these laws require that the labels of exempt food items include a disclosure statement notifying consumers that the product has not been regulated. The Tester amendment does not require any disclosure to consumers that this food in not grown or processed under federally enacted food safety standards.”

In fact, the Tester-Hagan amendment requires that consumers, stores, and restaurants know the name and address of the farmer or processor either directly on the food package label, for foods with packaging and labeling requirements, or, where there is no package or labeling requirement, at the point of purchase by, for instance, signage at a farmers market or invoices for sales to a store.  Moreover, the comparison to cottage food laws is a red herring.  Those are special cases with no state regulation.  State or federal regulation is required under the Tester-Hagan language.

Consumer Group Claim #3

“Additionally, using a 400-mile radius to define “local food” defies any reasonable definition of “local.” This definition would allow unregulated foods to be shipped in interstate commerce to distant consumers and businesses. In fact, Mexican producers could even qualify for the exemption and sell food that is not subject to U.S. food safety standards to American consumers. The premise behind these exemptions is that when the food is “local,” consumers have a direct relationship with the farmers and processors, who often sell at roadside stands and farmers’ markets.  No such relationship exists when the consumer lives 400 miles away in another state.”

Evidently the groups believe that Congress and the US Department of Agriculture are not adept at defining local food enterprises.  The definition itself, included as part of the 2008 Farm Bill, was based on a review of existing local and regional food networks working to improve food and nutritional quality, food access for diverse populations, and environmental performance of the food and agricultural sector.

Senator Tester and the Senate champions of S. 510 wisely chose the statutory and USDA definition of local food enterprise rather than attempting to create a second, FDA-only definition that would confuse the public.  One of the major ongoing problems with food safety policy is the multiple agencies involved with different rules and standards and protocols.  This time, thankfully, they got it right – two agencies, but the same definition and standard.

And again, regardless of the specifics of the definition, FDA needs to concentrate its limited resources on farms and other facilities that pose the most risk in terms of geographic coverage and sheer numbers of consumers affected.  In that light, reformulating regulatory requirements for smaller actors to free up FDA time and resources for major widespread problems will serve to increase net positive food safety outcomes.

Consumer Group Claim #4

“It is unclear if the $500,000 criterion is appropriate; we need to know what percentage of sales of fresh produce, and of FDA-regulated processed foods, firms of this size and smaller represent. Rather than setting a specific dollar amount in the statute, the Tester amendment should, instead, direct FDA to conduct an analysis of these two markets and determine an appropriate sales volume criterion for any exemption or modified requirements.”

This claim is nothing short of stunning.  Indeed, NSAC and other proponents of the important provisions in the Manager’s amendment and in the Tester-Hagan amendment have been saying for the past two years that we need to know the reach and impact of the food safety legislation on farms.  The Tester-Hagan amendment, to its great credit, in fact will require FDA, for the first time, to do exactly that analysis, together with USDA.  Normal legislative process would have the homework done first, and then, based on the facts, craft appropriate policies.  In the case of the pending food safety bill, the process is unfortunately proceeding the other way around.  But this is not the fault of Senators Tester and Hagan or the proponents of the amendment.  It is a fault with the overall process and the lack of attention given to the situation by FDA and the federal government.  The consumer groups should be applauding the amendment for finally requiring a careful and comprehensive study, so that, for instance, FDA will not in the future say, as they did last year, that they simply do not know how many farms they should or would be regulating under current law or under S. 510.

The National Sustainable Agriculture Coalition is a grassroots alliance that advocates for federal policy reform supporting the long-term social, economic, and environmental sustainability of agriculture, natural resources, and rural communities.

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Categories: Food Safety, Press Releases


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