The Center for Food Safety just broke the news that the FDA knowingly withheld information about genetically engineered salmon. [See Grist coverage.] See the Atlantic for the flaws with the sorts of medical studies that the FDA routinely relies on in its decision making. The FDA’s track record, even under this administration, is one where the interests of large corporations repeatedly trump sound science.

The Tester-Hagan amendment is a significant improvement. It would protect small-scale, direct-marketing farmers and food processors from the imposition of two of the most burdensome provisions of the bill: the HACCP/HARCP requirements [formal risk assessment and contamination prevention plans] and the produce safety standards. It’s important to realize that the Tester-Hagan amendment isn’t truly an “exemption” — the producers who fall within it will remain subject to all existing federal food safety laws and state and local regulation. Perhaps even more importantly, as direct marketers, these producers have a relationship with their customers that creates greater accountability and transparency than any level of government regulation.

Philpott: I am not enough of a policy expert to weigh in substantially on this; I tend to defer to policy analysts who I know (a) have a truly critical perspective on Big Food; (b) acknowledge that most people in our society are fed by Big Food, and that those people deserve to be protected from its excesses; and (c) also have a commitment to the farmers and artisans (sorry, Bonnie) who are working so hard to build out alternatives to Big Food. I must admit that Food Fight panelists Patty and Ferd are among my gurus in this regard.

I want to add that the history of regulation has not always been kind to small players. When I was a kid in the ’70s, I remember a nation dotted with independent gas stations that doubled as mechanic shops. At a certain point, much-needed regulations came into effect regarding the way gas stations protected surrounding groundwater from petrochemical contamination. These regulations carried heavy costs — and as I understand it, drove thousands of small players out of business. Today, gas stations are controlled almost exclusively by the few remaining major oil companies.

much-needed reforms in food safety regulations are poised to do the same thing, then I say, To hell with them. So far, Jean has not convinced me that S. 510, stripped of the Tester amendment, won’t fall too hard on small farms, or that S. 510 with it added would significantly detract from public safety.

RussRussell Libby, executive director of the Maine Organic Farmers and Gardeners Association: Yes, S. 510 will hinder small farmers. The Tester amendment will make a big difference. So far, however, I still lean toward supporting S. 510, because I’m worried about the regulatory direction of FDA absent Congressional direction.

FDA is prepared to issue produce safety regulations next spring. If S. 510 is passed, and directs FDA to be sensitive to the needs of small farmers, organic farmers, wildlife, and more, that at least gives us grounds for argument in the regulatory process.

This is just one step in a continuing political debate about the role of the states versus the federal government, and, more to the point, about the importance of a decentralized food system versus one where only a few suppliers distribute to only a few buyers.

All centralized systems tend to support other centralized systems. That’s the reality of the scale at which Washington, and FDA, work. It’s up to all of us to develop clear, workable alternatives that we can use as our counterarguments. Farmers are not ignoring food safety — they are eating the same food they are selling their customers. We need to push to develop the decentralized systems that both work for farmers and provide the basic assurances that everyone wants.

Gumpert: To Michael’s argument that we shouldn’t “digress into arguing the specifics of pending legal cases,” I would suggest we can learn much about how an agency will behave in the future based on how it has behaved in the past. The FDA has stated at least twice over the past year that it is concerned about the 60-day aging rule on cheese (which has been in effect since 1949).

More to the point, one of the two cases Michael finds so irrelevant — the case of Morningland Dairy’s supposedly contaminated cheese — grows out of a multi-agency (armed) raid on a small private food club in Los Angeles … led by the FDA. [See my coverage for Grist.] There were no allegations of illness, or contamination. The FDA’s allies at the California Department of Food and Agriculture allegedly found listeria in cheese seized in that raid. I say allegedly because the paperwork in the list of seized items left behind for the food club (by FDA and CDFA) is very sloppy, and inconsistent.

This sort of thing doesn’t happen to large companies. FDA focuses its attention on small organizations that it knows can’t afford to stand up legally to its arsenal of weapons. Giving FDA more weapons isn’t the answer.

I would just add to Tom’s recollection of many independent gas stations a case more to the point: until the late 1990s, there were loads of small slaughterhouses. Then they had to come up with HACCP plans under USDA requirements. Many couldn’t, now there is a shortage of small slaughterhouses. Small farms are penalized because they have smaller orders, and often have to wait weeks or even months to get scheduled in the few slaughterhouses that remain.

Patty LoveraPatty Lovera, assistant director of Food & Water Watch: For normal human beings reading Grist who don’t speak in food safety jargon, HACCP is a food-safety philosophy called Hazard Analysis Critical Control Point. It brings an engineering mindset to food processing systems; first you assess the “where” it is likely that hazards could occur in our system, then you put procedures in place at these “critical control points” to try to make sure those hazards don’t occur. Then you verify that those procedures worked.

It sounds very official and straightforward, but as we all should know by now, there is no such thing as straightforward when it comes to food — the devil is always in the details. This was especially true for how USDA put this philosophy into practice in meat and poultry processing plants. At Food & Water Watch, we’re quite familiar with the sordid history of how USDA implemented HACCP in the meat and poultry sector. We actually wrote a report on this last year, and identified some ways that HACCP could be modified to make it work better for small plants (and we think for consumers).

I think there are lessons learned from the HACCP experience at USDA that should inform anything FDA does on food safety, with or without legislation. One is to focus on the hazard analysis part, which doesn’t have to mean what it did during USDA’s rollout of HACCP for slaughterhouses (small plants paying too much money to consultants to write food-safety plans for them.) It could mean using the pieces of 510 that provide for training and education to help small farms and processors get good information and take a fresh look at where they might have points in their system that could improve. That’s where the rulemaking process is going to be critical — making FDA create a system that acknowledges that food safety plans come in all shapes and sizes (and this goes for the produce-safety standards they say they are going to do next year, too.)

On the Tester amendment, we do think it makes the bill better. On the question of how the amendment would impact the safety of imported foods, we don’t have the same concern Jean does above. Imports are covered in their own sections of the bill, which we think could actually be stronger. The Tester amendment’s exemptions are tied to facilities and farms that meet several tests about the size of the operation and the way they market their products, as well as distance. So just applying the distance in the amendment across borders isn’t the only factor.

USDA inspects about 10 percent of imported meat at the border. The European Union gets to 20 percent for some imported foods. FDA averages about 1 percent inspection for the foods it regulates. So there is plenty to do to get FDA to be tougher on imported food.

We will continue to push for more inspection done by our government inspectors (not other countries’ or private companies’), and we don’t see the Tester amendment conflicting with that.

The other note about the Tester amendment is on the 400 miles. I have spent more time than I care to think about over the last year asking people how to define a small farm (including bothering some of the other panelists here multiple times). And there’s no good answer — it’s a big country, and a small farm in California is a massive farm in New England, and $200,000 worth of cabbage comes from a much different-sized operation than $200,000 of artisanal cheese.

So while I probably wouldn’t have picked 400 miles as the limit, I can see why it’s there — it exists in other laws. And the structure of how this amendment works is key: you have to meet multiple conditions (size, method of distribution, distance) to qualify, not just one.

Mark KastelMark Kastel, co-founder of The Cornucopia Institute and director its Organic Integrity Project: I’m sorry I don’t h
ave time for anything more comprehensive and appreciate the folks that are digging deep on this. And while I appreciate the passion of this discussion, there’s a bit of sniping going on that makes me personally feel uncomfortable.

Here’s a few off-the-cuff responses:

I can’t imagine, in the constrained budgetary environment were all going to be working in, that S. 510 will be adequately funded. That will make it more important to make sure that limited resources truly are targeted to achieve the best bang for the buck in terms of protecting the citizenry. We know where the greatest risks are both in terms of hazards and scale — indirect, through many middlemen and sundry brands, and national distribution. It makes no logical sense whatsoever to focus on owner-operated direct marketers.

Kathleen made the comment [in the thread to be posted next] that nothing had been decided about the Good Agricultural Practices. Setting up metrics and other definitions will truly be the devil’s details. And I’m not sure that this sausage-making operation will be pretty. In this new era of unrestrained corporate spending on federal elections, I can’t imagine that this is not going to get tougher for those in society, including family-scale farmers, who are not in a position to invest in Washington. Whatever happens next week in the lame duck session will only be round one.

Food does need to be safe no matter who produces it. Although the Tester amendment will not exempt smaller producers from acting responsibly, maybe a labeling requirement stating that they are exempt from certain regulatory oversight — by virtue of their scale and intimate relationship with customers — should be articulated on packaging or at farmers market stands. And consumers can make an informed decision. Many will use that as a “brand” illustrating authenticity and maybe even seek out those smaller direct marketers?

I don’t know who else on this list has gotten their hands dirty or cracked a sweat producing food but I can tell you, both from personal experience and by virtue of working for thousands of farmers, that the profit margins are so slim, and that producers are so time-pressured during the season, that adding any level of additional record keeping, testing, or regulatory hoops to jump through will make it difficult for many families who are struggling to continue. I can guarantee you these folks are not getting rich and their only desire, in most cases, is to make a fair wage.

In terms of the qualifications for regulatory exemption under Tester/Hagan, 400 miles might not be overly generous, in many Midwestern and western states, for regional marketers. These are folks who have worked hard building specialty businesses and need to compete with multimillion-dollar, multinational agribusinesses. In terms of $500,000, without further processing, we have a handful of members that do that kind of volume with their community supported agriculture programs. And you can’t get any more direct, in terms of marketing or potential trace-backs than that!

Remember that although Tester might provide more targeted regulatory oversight, it will not exempt any of these marketers from state regulation.

In terms of Judith’s skepticism concerning the potential behavior of what Michael calls “highly educated scientists and qualified public health experts,” the FDA certainly has many dedicated employees, but it also has an institutional bias. During my 30-year career, I’ve observed that regulators who oversee highways like to build highways. And the best highway is flat and fast. Likewise, professionals who oversee food safety would like to sterilize our food supply. Their motivation may be to keep us safe, but if they denature our food our health and well-being will suffer.

I used to like the institutional advertising that the Caterpillar Tractor Company did, years ago: “There Are No Easy Answers — Only Intelligent Alternatives.”

Given the food production infrastructure that exists in this country, there is no quick fix. We have chosen to support this legislation as long as it is amended to eliminate collateral damage to the farmers in this country who are undoubtedly the safest and producing nutritionally-superior food.

Bulger: First, a few quibbles. Judith, I question the importance of the Atlantic article. It never once mentions the FDA and instead focuses on a group of researchers who act as watchdogs for popular science publications. Scientists are not infallible, but that is hardly news. next, note the comments by the doctoral student in this recent Grist post regarding the GE salmon. She notes that the “withheld” information was not relevant to FDA’s decision-making for a number of reasons. Finally, no I was not referring to the Pigford cases. Those involved the USDA, not the FDA, and had to do with racial bias and not recalls.

This is all off-topic, though. Back to the question: Will S. 510 harm small farmers too much and will the Tester amendment save the day?