Shutdown of two small cheesemakers raises more doubts about food-safety legislation
Editor’s note: Are you confused about whether to support the Food Safety Modernization Act (S. 510)? You’re not alone. We’ve decided to ask the major players to debate its pros and cons for an upcoming Food Fight roundtable — watch for it late next week.
In all the acrimony that has settled over Washington, one major legislative matter has continued to receive bipartisan support: food safety legislation intended to give the U.S. Food and Drug Administration vastly expanded powers to reduce the amount of contaminated food getting into distribution.
Highly publicized outbreaks over the last few years involving everything from spinach to peanut butter to ground beef to eggs have only seemed to heighten the support from consumer groups and the media alike. Grist contributor Elanor Starmer last week argued that we have a serious food safety problem only this legislation can resolve. The proposed legislation, strongly encouraged by the Obama administration, sailed through the U.S. House last fall, and then through a Senate committee earlier this year.
And then the legislation stalled. First, there were concerns that the legislation, by requiring that all food producers put together complex production and hazard control plans (known as HACCP Plans), would have a draconian effect on small food producers, despite the fact that the most sensational of the tainted-food problems seemed to originate with mid-size and large producers. So Sen. Jon Tester (D-Mont.) helped put together an amendment that would exempt small producers from some of the toughest provisions.
Then, in September, as Senate Majority Leader Harry Reid (Nev.), who’s a big supporter of the legislation, prepared to bring it to the Senate floor, Sen. Tom Coburn (R-Okla.) strenuously objected. One of his primary objections — that the legislation hadn’t been funded with the approximately $1.8 billion necessary to pay for all the new agents required to enforce it — made it seem as if partisan politics had made it even to this seemingly sacrosanct legislative initiative.
In actuality, though, even as it has taken on an aura of inevitability, doubts about the legislation have been growing. A number of organizations representing family farmers and consumers — such as the Cornucopia Institute and the Farm-to-Consumer Legal Defense Fund — have expressed concerns that the legislation gives too much power to the FDA. Not only would the agency have the power to require HACCP plans, but it would also be able to inspect and examine the financial records of any food producer at its whim, rather than having to obtain court permission, as it does now. Moreover, it would have the power to declare food emergencies and quarantine large parts of the U.S., at its discretion, as well as decide on so-called “good agricultural practices” for America’s small farms covering irrigation, crop rotation, and other matters traditionally under farmer purview.
The FDA hasn’t helped its cause among foodies and farmers in the last few weeks by involving itself in the shutdown of two premium-quality raw-milk cheesemakers — Morningland Dairy in Missouri and Estrella Family Creamery in Washington — because of the presence of the pathogen listeria in some cheese samples or on the premises. Now, you might say, isn’t this just an example of the FDA doing its job by protecting us from pathogens?
It might be a positive thing except for two problems. First, neither of these cheese producers has made anyone ill in many years of operations, including the last few months, since the presence of the pathogens was discovered. Indeed, scientists are divided about the danger of listeria in trace amounts, and some have advised the FDA to change from a zero-tolerance approach to something more realistic, given the ubiquitous presence of listeria.
Second, the FDA almost never shuts companies down for the simple presence of pathogens. It gives them opportunities to clean things up. Indeed, it rarely shuts companies down even after people get sick. The Iowa factory farms that sent out salmonella-tainted eggs that sickened upwards of 1,200 people last summer are a prime example. They recalled about 500 million eggs, but were never forced by the FDA to shut down their operations. It wasn’t until mid-October that one of the culprits, DeCoster’s Quality Egg LLC, even received a warning letter, which is typically the first step leading to more severe FDA actions.
The FDA has said any number of times that it needs the new food-safety legislation to provide it with the authority to go after producers like the big egg companies. Yet the agency’s dairy division, responsible for both eggs and cheese, had no trouble initiating or encouraging tough court and regulatory action against a couple of tiny cheese producers. Why is it unable to do the same to large egg producers actually making many people very sick?
The fact is, the FDA has a long history of going after small food producers for seemingly minor problems, and leaving the big ones to do their thing, no matter how serious their transgressions. Perhaps that’s why the doubts about the food safety legislation are expanding. It could be that more legislators are coming to appreciate that giving the FDA expanded authority will do more to hurt small food producers than it will to reduce food safety problems.