December 2, 2015
This is the first in a multi-part series analyzing FDA’s recently released rule that sets standards for the growing, harvesting, packing, and holding of produce for human consumption (aka “the Produce Rule”). This first post addresses those farms that may be fully or partially exempt from the Produce Rule. The next post provides an overview of what’s required of farms that must comply with the new rule.
The Food Safety Modernization Act (FSMA), signed into law in January 2011, authorizes the U.S. Food and Drug Administration (FDA) to take a preventive approach to food safety. This new approach includes the authority to establish first-time food safety requirements for farms producing fruits and vegetables, among other requirements for participants across the food supply chain.
Earlier this year, FDA finalized the Preventive Controls Rule, which governs food processing operations, which can include farms depending on the degree of value-added processing they are doing. Now, FDA has finalized the Produce Safety Rule, which sets food safety standards for farms to follow in an effort to minimize the risks of microbiological contamination that may occur during the growing, harvesting, packing, and holding fresh produce. These two rules are among seven major rules that span across the supply chain, from farms to transportation to processing to imports.
Not all farms will be subject to the new Produce Rule; some will be exempt from all requirements, some may be eligible for modified requirements. To understand whether the rules apply to a particular operation, it is important to start with some key definitions.
Which farms must comply and which are exempt?
The Produce Rule applies to covered farms doing covered activities on covered produce. Each of these terms has a specific definition in the Produce Rule. Therefore, if what you are doing on your farm does not fit these terms, then you are likely exempt from the rule.
A covered farm is one that annually grosses more than $25,000 in sales of produce, averaged across a rolling three-year period, and adjusted for inflation (with 2011 as the baseline year).
A covered activity means growing, harvesting, packing, or holding covered produce on a farm. These definitions – of farm, harvesting, packing, etc – are the same for both the Preventive Controls Rule and the Produce Rule.
Produce means any fruit or vegetable, and includes mushrooms, sprouts (irrespective of seed source), peanuts, tree nuts, and herbs. However:
Covered produce just means produce that is subject to these rules; so, produce that is in its unprocessed state, and is usually consumed raw.
FDA has provided a non-exhaustive list of covered produce, which includes:
Almonds, apples, apricots, apriums, Artichokes-globe-type, Asian pears, avocados, babacos, bananas, Belgian endive, blackberries, blueberries, boysenberries, brazil nuts, broad beans, broccoli, Brussels sprouts, burdock, cabbages, Chinese cabbages (Bok Choy, mustard, and Napa), cantaloupes, carambolas, carrots, cauliflower, celeriac, celery, chayote fruit, cherries (sweet), chestnuts, chicory (roots and tops), citrus (such as clementine, grapefruit, lemons, limes, mandarin, oranges, tangerines, tangors, and uniq fruit), cowpea beans, cress-garden, cucumbers, curly endive, currants, dandelion leaves, fennel-Florence, garlic, genip, gooseberries, grapes, green beans, guavas, herbs (such as basil, chives, cilantro, oregano, and parsley), honeydew, huckleberries, Jerusalem artichokes, kale, kiwifruit, kohlrabi, kumquats, leek, lettuce, lychees, macadamia nuts, mangos, other melons (such as Canary, Crenshaw and Persian), mulberries, mushrooms, mustard greens, nectarines, onions, papayas, parsnips, passion fruit, peaches, pears, peas, peas-pigeon, peppers (such as bell and hot), pine nuts, pineapples, plantains, plums, plumcots, quince, radishes, raspberries, rhubarb, rutabagas, scallions, shallots, snow peas, soursop, spinach, sprouts (such as alfalfa and mung bean), strawberries, summer squash (such as patty pan, yellow and zucchini), sweetsop, Swiss chard, taro, tomatoes, turmeric, turnips (roots and tops), walnuts, watercress, watermelons, and yams.
FDA has also established an exhaustive list of produce that is “rarely consumed raw.” This exhaustive list includes:
Asparagus; beans, black; beans, great Northern; beans, kidney; beans, lima; beans, navy; beans, pinto; beets, garden (roots and tops); beets, sugar; cashews; cherries, sour; chickpeas; cocoa beans; coffee beans; collards; corn, sweet; cranberries; dates; dill (seeds and weed); eggplants; figs; ginger; hazelnuts; horseradish; lentils; okra; peanuts; pecans; peppermint; potatoes; pumpkins; squash, winter; sweet potatoes; and water chestnuts.
This means that if you are only growing grain, then this rule does not apply to you because grain is not considered “produce.”
If you only grow produce found on FDA’s list of “rarely consumed raw,” then this rule does not apply to you, because that is not considered “covered” produce.
If, however, you are growing both grains and covered produce, or both covered and not-covered produce, then these requirements would apply to the covered produce that you grow.
In addition to the de minimis exemption and the exemption for produce that is rarely consumed raw, there are also exemptions for produce that:
However, to claim the exemption for commercial processing, the processing must adequately reduce the presence of microorganisms of public health significance, and certain assurances and disclosures are required.
So, to recap: if you are a farm, and you grow, harvest, pack, or hold produce that is usually consumed raw but is not destined for commercial processing, and you exceed the $25,000 produce sales threshold, then you are not exempt from the new requirements. However, you still may not be required to comply with the full Produce Rule if you are a “qualified exempt farm” as explained below.
Qualified Exempt Farms
Some farms that exceed the $25,000 sales threshold may still be eligible for modified requirements as “qualified exempt” or “Tester-Hagan” exempt farms based on their size and market channels. This name comes from the amendment to FSMA championed by Senator Jon Tester (D-MT) and former Senator Kay Hagan (D-NC), which established alternative requirements for farmers selling primarily into local markets.
To be considered a qualified exempt farm and be eligible for modified requirements, you must meet certain criteria:
A qualified end user is the consumer of the food (an individual, not a business), or a restaurant, or a retail food establishment, that is located either in same State or same Indian reservation as the farm that produced the food, or not more than 275 miles from the farm.
If these criteria are met, then the farm is not considered a “covered farm” and is eligible for modified requirements.
So, to recap: a qualified exempt farm is one with combined sales of all farm food products (including animal feed, dairy, grains, produce, etc) that gross less than $500,000 annually (averaged across three years and adjusted for inflation) and at least 50.1 percent of those sales are direct to: a consumer through a CSA, farmers market or other direct marketing platform; a restaurant; or a retail food establishment (e.g., a grocery store) within the same state, or if not within the same state then within 275 miles.
A few examples:
A farm eligible for modified requirements is subject to some but not all of provisions in the rule. A qualified exempt farm is subject to certain labeling requirements, and is also subject to the requirements regarding records, compliance and enforcement, and the withdrawal of a qualified exemption.
If the produce requires a food packaging label, then the label “must include prominently and conspicuously on the food packaging label the name and the complete business address of the farm where the produce was grown.”
If the produce does not require a food packaging label, then the name and complete business address of the farm where the produce was grown must be “prominently and conspicuously” displayed on a label, poster, sign, placard, or documents delivered contemporaneously with the produce in the normal course of business. In the case of Internet sales, this could include an electronic notice. “Complete business address” means the street address or P.O. Box, city, state, and zip code for domestic farms.
A qualified exempt farm must keep adequate records necessary to demonstrate that the farm satisfies the criteria for the qualified exemption (e.g. records that show the farm is below the sales threshold, selling more to qualified end users than not, and that the purchaser is a qualified end user).
The farm must also keep a written record that reflects an annual review and verification of the farm’s continued eligibility for the qualified exemption.
These records that document status and annual verification do not have to be submitted to FDA, but they must be retained and made available upon request.
These records are subject to the same general requirements for all records kept under the Produce Rule: they must be detailed, accurate, legible, dated and signed or initialed by the person performing the documented activity; they can be stored offsite as long as they can be retrieved within 24 hours of request for official review; they can be written or electronic; they must be original or true copies; and they can be based on existing records.
Sales receipts retained to document the $500,000 threshold for qualified exempt farms do not need to be initialed, but they should be retained long enough to document the qualified exempt status for the applicable year, based on the rolling three-year average.
Note: Our next blog post will provide more details on records required of covered farms.
Qualified exempt farms are subject to the same compliance and enforcement provisions as covered farms. The compliance and enforcement provisions of the rule state that “failure to comply with the requirements of [the Produce Rule] is a prohibited act under section 301(vv) of the Federal Food, Drug, and Cosmetic Act.” Committing a prohibited act is a federal offense, punishable by fines or incarceration.
It is important to note that – under existing law — putting adulterated food into interstate commerce is also a prohibited act, regardless of whether the farm is covered by the Produce Rule or not.
4. Withdrawal and Reinstatement of a Qualified Exemption
All farms eligible for the qualified exemption are also subject to the process and circumstances under which FDA may withdraw their qualified exempt status. An important change in the final rule from the original proposed rule is that FDA is not adopting a “one-strike-and-you’re-out” approach. Rather, a farm that has a qualified exemption withdrawn may be able to have that exemption reinstated under certain circumstances.
Note: The following does not map out the processes in full detail, but provides an overview. If you are interested in the specifics, the regulations regarding the process begin here.
FDA can withdraw a qualified exemption in the event of an active investigation of a foodborne illness outbreak that is directly linked to your farm, or if they “determine [withdrawal] is necessary to protect the public health and prevent or mitigate a foodborne illness outbreak based on conduct or conditions associated with your farm that are material to the safety” of the covered produce your farm is growing, harvesting, packing, and holding.
However, it is worth noting that FDA has said repeatedly that they see the withdrawal of a qualified exemption as a last resort, and that they have many other tools at their disposal to prevent or mitigate a foodborne illness outbreak in the event a farm is linked to a foodborne illness investigation or has conditions or conduct that are material to food safety — and that they would rely on such tools and assist the farm in rectifying such problems prior to issuing an order to withdraw an qualified exemption.
The rule specifically states that before FDA can issue an order to withdraw a qualified exemption, FDA must:
FDA may also consider one or more actions to protect the public health rather than issuing an order to withdrawal, which include a warning letter, recall, administrative detention, seizure, or injunction.
The rules provide a detailed process, including timelines for responding to notices, information on appealing the order and requesting an informal hearing, when an order to withdraw a qualified exemption may be revoked, and a process for requesting that a withdrawn exemption be reinstated.
Reinstatement of a withdrawn exemption may occur in three possible ways, depending on the reason(s) why it was withdrawn:
Whenever the farm requests the reinstatement, the request must be in writing, and must include data and information to demonstrate that any problems have been resolved, and that the withdrawal is not necessary to protect public health and prevent or mitigate a foodborne illness break.
If a qualified exemption is withdrawn, then the farm must come into compliance with the full requirements of the Produce Rule within 120 days. In our second post, we explore what those full requirements entail.
Considerations for Exempt Farms
Regardless of whether a farm is exempt or qualified exempt, each farm has a duty to take the necessary steps to minimize the risks of contamination on the farm and keep adulterated food from entering the food supply.
Moreover, certain buyers may require farms to demonstrate compliance with a food safety standard (like USDA GAPs or GroupGAP, for example) even if the farm is exempt from FSMA. As we discussed in our analysis of the Preventive Controls Rule, there is language in the rule that explains to buyers that they do not need to require more of their suppliers that are de minimis or qualified exempt farms than what FDA requires of them. However, buyers may still require their suppliers to undergo an audit before purchasing from them.
Additional Information and Resources
The second post in this series explores the full Produce Rule requirements that covered farms must follow.
You may also be interested in our analysis of the Preventive Controls Rule. Remember that some produce and non-produce farms that also do value-added processing may also be subject to the Preventive Controls Rule.
FDA will be following up on many issues in the final rule by developing guidance documents, which provide more explanation for the regulated industry (and regulators) to use in determining whether and how the final rules apply to a specific situation. FDA is accepting questions and suggestions as they begin to develop these documents. You can submit questions or recommendations to FDA here to assist them in identifying issues that will require further explanation.
In the near future, NSAC will be updating our website and “Am I Affected” flowchart to reflect the final rules, designed to help farmers, small food businesses – and the organizations that work with them – understand whether the FSMA rules apply to them and if so, what requirements apply.