For years, Democrats have been trying to update our food safety laws to prevent food-poisoning accidents. In 2011, President Obama finally signed the Food Safety Modernization Act, and now the Food and Drug Administration is making the rules to determine how to put the law into practice. Everyone wants safer food, but some small farmers fear the rules could force them out of business.

“I’m really worried that if this law is not interpreted in terms of the challenges a small farmer faces, but only in terms of a 1,000 acre field of lettuce, that it could be the end of small, local, sustainable farming,” said Rep. Chellie Pingree (D-Maine), a farmer.

Congresswoman Chellie Pingree
Rep. Chellie Pingree.

“I cannot imagine the outrage on behalf of the consumers if local food systems are regulated out of existence,” she said.

That would be the worst-case scenario. We’re currently in the middle of the rule-making process, and the FDA is soliciting comments on how to protect eaters without putting an undue burden on farms. Lots of farmers are contributing suggestions for refining the rules, but eaters — and I think that means all of us — might want to weigh in as well before the Nov. 15 comment deadline.

The law doesn’t apply to truly tiny farms: those bringing in less than $25,000 a year. And there are a few exceptions listed for farms making under $500,000 a year — but it’s pretty easy for a small farm delivering community-supported agriculture boxes to approach that kind of revenue.

There are three major issues that make some farmers anxious: rules restricting when they apply manure and compost, regulations requiring them to test their water for pathogens, and rules laying out the distinction between a “farm” and a food-processing “facility.”

1. Manure

Under the new rules, farmers are not allowed to apply raw manure to their fields unless it’s nine months or more before harvest. That’s simply not doable for some farmers, said Brian Snyder, executive director of the Pennsylvania Association for Sustainable Agriculture. “There are thousands of Amish farmers around here who use manure in the field growing vegetables,” he said.

Brian Snyder
Brian Snyder.

But that rule only applies to untreated manure, said Michele Jay-Russell, research microbiologist at the Western Center for Food Safety at U.C. Davis. Big organic farms generally don’t fertilize with raw manure, because it’s too risky, she said. Instead they use manure that’s been composted.

Even that is regulated: As they currently stand, the rules require a 45-day interval between application of compost and harvest. This would be a hardship for farmers, Synder said. It’s clear that pathogens can sometimes survive in raw manure as long as nine months, and for more than a month in compost.

“But there’s also science that shows that you need to have biodiversity in compost, and soil, and even in our bodies,” Snyder said.

This microbiome science is new enough that it’s impossible to tell us which way it’s pointing us yet. But the point is, there are tradeoffs, and we wouldn’t want a law so restrictive that it only allowed synthetic fertilizer.

2. Water testing

The law will require farmers to test surface water — drawn from a pond, for instance — more frequently than ground water. That makes sense: Ground water rarely gets contaminated with pathogens. But it also creates an incentive for farmers to abandon catchments in favor of pumping ground water, because the tests cost about $25 a pop.

Pingree pointed out that the Food and Drug Administration had estimated that a small farm (making between $250,000 and $500,000 a year) would end up paying $12,000, for things like water tests, to comply with the law. Spending 5 percent of revenues on safety compliance may not seem like a bad deal, but it’s a terrible deal if your margins are less than 5 percent. “For many farms that size, $12,000 is the total profits for a year,” Pingree said.

3. Definitions

Food processing facilities come in for tougher regulation than farms, as they should. The problem is that the term “facility” is defined broadly enough in the rules that it could encompass many farms. People sorting, packaging, and buying produce from other farms might be part of a food processing facility under the proposed rule. And many community-supported agriculture operations combine and sort produce from different farms for box deliveries.

“The definition of ‘facility’ is so broad that we could really ask the question, is there any such thing as a ‘farm’ from the perspective of these regulators?” Snyder said.

The larger debate

You can make a useful comparison by looking at the recent history of meat processing, said food poisoning litigator Bill Marler, who has been intimately involved with the Food Safety and Modernization Act from the beginning. The one-size-fits-all requirements for abattoirs (to build, for instance, a private bathroom for government inspectors) made it nearly impossible for some small farmers to slaughter their stock. But these regulations also made the country safer.

Bill Marler
Bill Marler.

“Ninety percent of the income to my firm came from E. coli linked to hamburger meat,” Marler said. “Now it’s nearly zero.”

That’s a huge improvement. Then, in the 2000s, he said, regulations began loosening in ways that didn’t compromise those gains, but allowed for smaller slaughtering facilities (mobile abattoirs, for example). And Marler says that this food safety law is much more sensitive to the needs of small farmers. “Small farmers incorrectly feel that if they follow food safety rules they will go out of business,” he said. “That’s just not the case.”

“Clearly, rules designed by Pillsbury to make food safe for astronauts in space is different from what works for a farmer selling produce at a farmers market,” he said. “But the rules take those differences into account.”

At the very least, the FDA officials are sincere in their desire to craft rules that reduce food poisoning without hurting farmers, Snyder said. “They are listening,” he said. “[FDA Deputy Commissioner] Michael Taylor spent five hours talking with me recently.”

The main point, Snyder says, is that there really is less danger associated with small food systems, as opposed to big systems that bring large amounts of food together in central nodes. Introduce a pathogen to one of those nodes and you face a big problem.

“Keep food close to the consumer and you eliminate a lot of the points of risk,” he said.

That doesn’t mean organic farms are risk-free, as we saw when organic berries at Costco spread hepatitis.* We don’t find out about the organic outbreaks as often because they are smaller, Marler says, but they may be more widely distributed.

There is a kind of safety that’s fostered by being able to drive down the road and see the place where your food grows, by being able to shake your farmer’s hand and tell her you’ll be back next week. We don’t want to legislate that out of existence. But at the same time, as organic farms grow, we do need the safeguards that will keep local food systems just as safe as they feel. People who eat food from small farms stand to benefit most by finding the golden mean — so it would be worthwhile for consumers to comment on how they would like to see the FDA balance those goals.

Instructions for submitting comments, along with a detailed examination of the rules, are available at the website of the National Sustainable Agriculture Coalition (a word of warning, this will take a minute, it’s pretty complex stuff — plus, it looks like the government intertubes are clogged [fixed!]). And bite-sized fact sheets on some of the most important sections of the proposed rule are available through the Cornell University Produce Safety Alliance. This isn’t an opportunity to submit rants or votes (those will likely go straight into the trash), but stories might help the officials as they figure this out.

If you have personal experience buying directly from a farmer or a community-supported agriculture program, you might consider how your experience could inform the FDA as it hashes out its rules.

*Correction: A previous version of this piece suggested that a listeria outbreak was associated with organic farming — but it wasn’t.