By Patty Cantrell, Senior Policy Specialist at Michigan Land Institute, a consultant for the National Good Food Food Network & Co-Chair of NSAC’s Marketing, Food Systems and Rural Development Issue Committee

As the U.S. Senate prepares to vote on new food safety regulations, the National Good Food Network (NGFN) has posted a series of interviews with leading participants in the process.  Patty Cantrell interviewed four policy insiders about the pending legislation and related issues.  Posted below is the series’ final interview with Ferd Hoefner, policy director for the National Sustainable Agriculture Coalition.

Click here to read other interviews with Robert Guenther of the United Fresh Produce Association, Tony Corbo of Food and Water Watch, and Brian Snyder of the Pennsylvania Association for Sustainable Agriculture.  See additional information at the NGFN’s Food Safety Working Group page.

Food Safety Interview with NSAC’s Ferd Hoefner

Why has NSAC been so engaged in food safety deliberations in Washington? What have been your key priorities?

Fundamentally farmers are worried, with good reason, about what a new Food and Drug Administration (FDA) regulatory regime is going to look like on the farm, and that has percolated up through our membership organizations to make this a very high priority.

It’s not from a position of being against food safety legislation but from trying to make sure that whatever comes out is not top-down, command-and-control regulation that does not fit farming realities.

Our top priority is to make sure we don’t wind up with one-size-fits-all regulation written for mega, industrial-style, specialized farming that assume the same rules could apply to the vast majority of farms, which are smaller and more diverse.

Close behind in priority is making sure the rules mesh with conservation and environmental policy, and with organic certification rules and other labeling and certification programs out there.

Lurking behind these specific issues is the very real concern that the new regulatory regime could have the effect of further consolidating the industry and putting more farms out of business, as we’ve seen in other areas of agriculture and the larger economy when widespread regulation kicks in.

How that happens is partly how regulations are generally written in a one-size-fits-all way. It’s partly the increased cost of complying with expensive regulations, which can make the difference in staying in business or not for those running on very tight margins. Then there’s the very real political effect as many of these rules become detailed and complicated. The big economic actors employ lobbyists from the best K Street firms to keep track and influence the process; they are at every meeting and know every player. Small and mid-scale players simply cannot afford to do that.

What is your opinion on the current state of the legislation, both the House-passed Food Safety Enhancement Act 2009 and the Senate bill on its way to the floor, S510?

In the Senate bill we feel we have made significant headway. The language in the produce section makes it clear that regulators should concentrate on the highest risk situations and the highest risk crops and processes. That’s incredibly important. There’s also very strong language related to conservation and environmental regulations and how they relate to food safety, as well as the interplay between food safety and organic standards. And importantly, when the bill passes, it will include language that requires FDA to go through a risk analysis and rule making, subject to public comment, to determine which farms fall under the legislation’s new requirements.

The House bill passed a whole year earlier, and we were not as organized to influence it. The House bill includes very few of the protections present in the Senate bill. For example, the Senate bill states that if farms have to retain records for traceability purposes, they must do so only for the receipt for the point of first sale, for whoever buys it from the farm. We think that’s a very important principle. In the House bill, many farms would have to somehow know, and prove, what happens to their product all the way to the supermarket. We maintain the farmer should not be responsible for knowing what the wholesaler did with their product, what the distributor did, what the aggregator did, and what the final retailer did.

How to pay for FDA’s new inspection duties is a contentious question. What does NSAC think about provisions in the legislation for covering FDA’s costs?

Cost is a big issue and it’s hardly been mentioned in the House or the Senate. We know the price tag on this thing is high if FDA is really going to do everything involved, all the extra inspections and all the work on imports, for example. The FDA’s budget has been going up pretty steadily the past three to four years, but it’s nowhere near the $2 billion jump the agency is projected to need for this.

If the bill passes, there will be a lot of press releases about ensuring the American food supply is safe. But actually, other than some more purely policy components like mandatory recalls, which is a really important advance in the bill by the way, most of the other components will have to wait until FDA has implementation money appropriated by Congress in future funding legislation.

The House bill applies a flat $500 registration fee to all food facilities, whether you’re a Kraft cheese whiz plant or you are Grandma Jones who makes apple butter and sells it at the farmers market. It’s the most regressive flat tax proposal to come out of the Pelosi-Waxman-Dingell, democratic liberal leadership in quite a long time. They normally wouldn’t dream of a regressive flat tax regime, but that’s exactly what they did under heavy pressure from the Grocery Manufacturers Association and others.

The Senate bill does not have fees, which is part of an agreement from a bipartisan team of Senators working on it in committee. It will be a big issue between the Obama Administration, with Health and Human Services and FDA supporting fees, and the Senate saying the only way it will pass is if it has no fees. We will support no fees or progressive fees, but adamantly oppose the House-passed regressive flat tax.

What do you think of the concept of “identity preserved” foods as a category separate from products that contain food commingled from many sources? Local food and sustainable agriculture advocates have brought this concept forward as a way to differentiate food that comes to market through face-to-face or very short supply chains.

The concept is fairly new, even though its been growing as a trend over the last five years. More and more consumers want to know who the farmer is behind their food, and farmers are finding that that is a valuable value-added marketing strategy.

Our argument relates to the fact that, under current FDA rules, if you’re direct marketing more than 50 percent of your processed farm product, then you don’t fall under the regulatory regime. We ask what the difference is between that and farms that preserve their identity in the market through labeling. Preserving a farm’s identity should get the same treatment as direct marketing. But that’s not the case yet in the legislation.

Traceability is the watchword in food safety negotiations. How do you believe traceability can be achieved in the commingled commodity food stream?

Figuring out which processing plant a food product came out of is probably do-able, and we already do some of that. It’s really different when you’re trying to tell which of thousands of farms supplied products to a processing or packing plant. That’s where it becomes much more difficult, and that’s the reality of massively commingled products in our current food system.

However, when the traceability system does succeed, as it did recently with romaine lettuce from a farm in Arizona, it didn’t make any difference. The industry is concerned with indiscriminate shutdowns, but in this case of knowing exactly which farm was the source, FDA still shut down farms on an area-wide basis. You have to ask what is actually the purpose of a tracing system when, after tracing an outbreak to a specific farm, it makes no difference in the reaction of regulators.

This example raises another question relating to causation; once you know where it came from, if you don’t know how it got there, maybe the traceability information required isn’t that important. Yet the legislation calls for producers to employ potentially costly technology to capture all of this information, technology that hasn’t been developed yet.

That’s another thing that’s kind of crazy, and this is a criticism of the House bill: It’s very unusual to pass legislation saying this is the way it’s going to be, and to get there we have to invent a new technology, and once it’s there you will have to use it. That is getting the cart way before the horse.

What is your perspective on exemption proposals for certain farms?

From the very beginning of this debate, a huge concern has been with how smaller, more diversified farms with shorter supply chains, causing few problems, could get caught up in regulations written for industrial-size operations.

One controversial exemption amendment from Senator Jon Tester (D-Montana) takes a somewhat meat axe approach to it, saying here’s the gross income threshold and everybody under it goes a different direction. We support the intent, and if a substantive, more nuanced agreement can’t be reached before the bill goes to the floor, we’re going to support it on the floor because the principle is incredibly important.

The gross sales threshold in the Tester amendment is actually far more practical than existing rules to exempt all farms that direct market more than 50 percent of their product.  Either way there is a significant exemption, and the question becomes which is the better, more practical, verifiable and effective exemption.  Hands down that is the Tester approach.

That said, we will continue to urge Sen. Tester to adopt a more refined position. A more refined position would take on a variety of things that have not really been addressed yet.

For instance, farm facilities that market with their identity preserved on the product could be made exempt.  The HACCP (Hazard Analysis and Critical Control Points) section of the bill currently includes a variety of agricultural exemptions, but not one for small farms determined to be adequately regulated at the state level. The performance standards section is not open to public comment, and we think it should be; that’s where the rubber hits the road of how to apply standards and what rules apply to highly diversified operations. Also in the inspection section, there is language that, even if you’re considered a very low risk, FDA will inspect you every four years. Again, that’s hundreds of thousands of farms that will have to go through inspection even after FDA has determined they’re low risk. We think that’s kind of ridiculous; it’s one of the things that drives up the cost of the bill unnecessarily and ultimately reduces positive food safety outcomes.

What about food safety activity outside of this legislative process (i.e. California Leafy Greens Agreement)? What’s your position?

FDA and USDA both currently have leafy greens regulatory or quasi-regulatory proceedings going on, prompted in part by calls for nationalizing the California agreement.

We wonder why two different agencies are running two parallel processes and what their plan for resolving differences is. We also think, in some respects, it’s putting the cart before the horse. Our presumption is that if FDA promulgates new regulations, they will have to rewrite them after the legislation passes to comply with its provisions.

Our position, and the position of the National Organic Coalition, which we’ve worked with very closely, is that if there’s going to be a regulation then FDA should write it because FDA is the regulator. USDA has a different role.

USDA is working on a leafy greens marketing agreement. Marketing agreements have their purpose (marketing) and food safety regulations have their purpose (food safety). Confusing the marketing purpose with the food safety purpose kind of muddies the water.

If you could write your own food safety bill from scratch, what would be your top three provisions?

Our top provision is to focus on how we create a food system that promotes healthy nutrition and safe food, which is not the system we have now. Our number one priority is proactively working towards that improved food system rather than trying to retrofit food safety rules around a very broken food system.

More germane to the current bill itself would have been to start off by having a separate section for operations like ConAgra, Kraft, Cargill, and Peanut Corporation of America and a separate section for farms, dealing with them in all of the unique characteristics that make farms very different from a Kraft plant. But as written, the legislation tries to apply the same rules across the board.

If we had had a separate agricultural section, we would now be dealing with robust provisions for certification and training, things that can very quickly improve the food safety reality on the ground. Education and training and certification can address problems much more quickly than command-and-control provisions that, at best, will take a long time before they’re funded and then enforced. Granted, those provisions are not appropriate for the Peanut Corporation of America type operations, but that’s exactly the point; these are two different kettles of fish and should be treated that way.

Third, and we’ve made some headway on this, is the need for food safety rules that are supportive of and coordinated with conservation rules. We need to turn back as quickly as possible from what has happened in California with the industry-led leafy greens agreement. Outcomes of that agreement are contrary to everything we know about soil and wildlife biology. There’s no reason why we can’t have better conservation and food safety; they go together. The notion that they are in opposition should be put to rest.