The Food Safety Modernization Act: Why You Should Care and What You Can Do About It

The Food Safety Modernization Act (FSMA) is causing a stir among farmers and consumers throughout the nation.   The new act, a set of rules and regulations created by the U.S. Food and Drug Administration (FDA) to create safeguards in food production, could place a large financial and logistical burden on small to mid-scale farmers across the U.S.  Any farm making over $25,000 a year in produce sales could be affected, i.e. most fruit and vegetable production farms in America.  The act also places undue burden on farms that use organic and sustainable practices.  Should the rules stay as is, it will be more difficult for many farmers to stay in business, it may deter beginning farmers from farming, and it may make fruits and vegetables more expensive.  During a time when the country is bleeding farmers, particularly young ones, and when fruits and vegetables are not readily accessible or affordable for many Americans, this act could have dire consequences both for our agricultural system and our public health.

*The information gathered for this blog post was obtained from the National Sustainable Agriculture Coalition website. NSAC provides a great analysis of FSMA.  The analysis I provide below is not perfect and only highlights a few aspects of FSMA.  For more up-to-date, detailed information please visit the NSAC website.

Background

Let us flashback to 1938, the year that FSMA was first created.  In an effort to feed Americans both at home and oversees in WWII the U.S. agricultural system had to move large quantities of food efficiently and safely.  FSMA was, therefore, in fact a good thing.  For without FSMA, there would be no safeguards against distributing large quantities of contaminated food to the American people. 

Now let us fast-forward to 1990 and the creation of the National Organic Program (NOP).  In response to popular  consumer demand, the National Organic Program, a program initiated through the U.S. Department of Agriculture (USDA), created more markets for organic foods, i.e. foods grown without synthetic chemicals.  As a result of the NOP, consumers now have a choice to buy organic or non-organic foods in the marketplace.  Hold onto this idea and historical event.  I will bring up how it relates to FSMA later. 

Now let us jump forward to 2002 when the USDA created a voluntary certification program for farmers called the “Good Agricultural Practices” program (known by many as “GAP”).  GAP is one of the most commonly recognized certifications among institutions and grocery stores.  GAP sets forth a set of stringent guidelines that safeguard against the risk of spreading biological contaminants on produce later to be sold on the market. GAP certification is not required by law.  Many restaurants and farmers’ markets do not require GAP certified produce.  “Why might not everyone require that their produce be GAP certified?” you may ask.  The answer:  GAP certification can be costly for some farms, particularly smaller farms, and it places a large logistical burden on farmers.  GAP certification requires intensive documentation that can be unreasonable for smaller farms to complete, given the smaller size of their staff.  GAP is also not as necessary for smaller farms sourcing directly to restaurants or farmers’ markets.  Many restaurants ask that farmers sign contracts with a certain amount of liability coverage before accepting a farmer’s produce.  In the event that any produce becomes contaminated, the restaurant can easily trace the produce back to the farmer  and the farmer is held liable.  A similar idea holds for farmers’ markets.  Should a farmers’ produce be contaminated it is easily traceable.  GAP was put in place specifically to create additional safeguards for the movement of large quantities of produce from many different farms to many different institutions.  On a larger scale, it is much more difficult to trace back the source of contamination and hold a particular farm liable.  Therefore in the case of large-scale distribution, GAP, like the original FSMA rule passed in 1938, can be a good thing.  Although a good thing, however, it is also good that GAP is voluntary.  Smaller farmers can opt to get GAP certified if they choose to sell produce to larger institutions and if they have the capacity and resources to do so.

Now, lastly I want to add to this stew of historical events an E. Coli outbreak in 2006, originating from a vegetable field in California, and the increased threat of bioterrorism in the U.S., resulting from 9/11.  These two realities have created a sense of urgency among rule makers at the FDA to better standardize food safety in the U.S.  The concerns of rule makers are legitimate, but the way in which they go about making the rules needs to be an intentional process that takes into account the livelihoods of farms of all sizes and approaches.

Now you are prepared to talk about FSMA. 

FSMA Today

So what is the problem with the new proposed FSMA guidelines and why should you care?

For the Farmer:  The 4 C’s:  Cost, Contradiction, Compost, and Conservation

Cost

First, I want you to revisit my discussion of GAP in the Background section.  The new FSMA guidelines are in many ways similar to GAP guidelines.  There are several differences as well, however, the premise is the same.  FSMA has the potential to be costly for some farms, particularly smaller farms, and it places a large logistical burden on farmers.  According to the FDA, the costs required to update a farm’s operations to be in compliance with the new FSMA rules can range anywhere between about $4,500 for a small farm to about $30,500 for a larger farm.  When considering a small farm that grosses $25,000 a year, $4,500 is a large cost.  Such high costs can also deter beginning farmers and potentially put smaller farms out of business.  FSMA, also like GAP, requires intensive documentation that can be unreasonable for smaller farms to complete, given the smaller size of their staff.

Additionally, should a farm want to maintain sales to direct markets (such as restaurants and farmers’ markets), it seems unnecessary that farms be required to comply with FSMA rules.  It appears as though the intent of FSMA is to create additional safeguards against the risk of food contamination at a large scale.  In instances, where large amounts of produce are being transported to markets and institutions across the country, then there is a place for FSMA, just as there is a place for GAP.  However, in instances where it is easy to trace food back to the farmer (i.e. when food is sourced directly from the farm to a restaurant or a farmers’ market), it does not seem as necessary to require these additional regulations and safeguards.  On a small scale, a farmer, who has a direct relationship with a restaurant or his customer, is already heavily affected by the burden of accountability.  It is in the direct interest of the small farmer to provide quality produce, because he is likely to lose his customers if he does not.  The onus of accountability may be burden enough.  

Contradiction

Another major issue with FSMA is that it creates regulations only for biological contaminants on produce.  Therefore, it places an undue burden on farms that use organic and sustainable practices.  Conventional farms that use synthetic chemicals are not included in the new FSMA regulations.  This reality raises the question that we, as a society, have to ask ourselves.  Should we not be equally concerned about chemical contaminants on our food as we are biological contaminants? 

Compost

In the new FSMA regulations, if you are a farm that uses compost generated on-site and/or if you use any animal-derived amendments, then you may be negatively affected.  The new FSMA rules require a waiting period of approximately 9 months between when compost is put down and crops are harvested (if there is risk that the produce may come in contact with the ground).  Annual crops generally take a fraction of that time to mature.  Therefore, farmers would have to leave a field fallow for 9 months after compost application before planting, at which point many of the nutrients may have leached from the soil.  This regulation may force many farmers to go the route of chemical amendments, which are not regulated under the rules.  For farmers wanting to be organic certified, chemical amendments are not an option.  This regulation is also in direct conflict with National Organic Program standards, which requires and recommends a reapplication of compost at 3-4 month intervals. 

Conservation

In the conversation section of the FSMA regulations, the FDA makes a claim that it wants both to support sustainable conservation practices and food safety.  However, it does little to address how sustainable conservation practices should be implemented.  In addition, in the Domesticated and Wild Animal section of FSMA, there is language that implies that animals should be kept off land that is to be in fruit and vegetable production.  There are various different regulations for domesticated versus wild animals.  However, by implying that farmers should keep wild animals off their property, farmers may be encouraged to rid of natural areas around their property.  Both the lack of language about conserving natural areas around farms in the Conservation section of FSMA and the language that encourages the removal of wild animals from farm areas in the Domesticated and Wild Animal section, may further encourage farmers to rid of natural areas around farms.  Natural areas around farms support native pollinators and beneficial animals that aid in the functioning of a healthy agro-ecosystem.

For the Consumer

As a consumer, if you value getting fresh produce from local farmers, as well as from farmers that use sustainable and/or organic practices, then the new FSMA regulations will affect you too.  Should the regulations pass as is, the costs to the farmer will also be passed on to you, the consumer.  Additionally, over the long term it may reduce your options of organic and/or local produce.  The new regulations put a great amount of burden particularly on smaller farms and organic farms. 

Be a part of the Movement and Take Action

The new FSMA rules are open for public comment, so now is the perfect time for you to make your voice heard.  We need everyone to comment, so please take a few minutes out of your day to visit the two links below and send a comment to FDA.

For Consumers:

Visit this link. 

For Farmers:

 Visit this link.

 

These links provide detailed instructions about how to submit a comment, and it also provides sample comments for you to use as a guide.  Please try to make your comments as unique as possible, and please do not copy the sample.  These links also provide more detailed analysis of the proposed rules, should you want to learn more about how the rules will affect you. 

Farmers it may be helpful to pick one or two of the issues in the Produce Rule that directly affect you and comment on those rules.  Give a personal story, and do not be afraid to tell FDA how the new rules would affect you.

Some small farms are exempt from some of the rules.  However, it is advised that all farms and farmers comment.  Even if you may be exempt now, the rules may eventually affect you either directly or indirectly.

Be a part of the movement and help make a difference!