And Why It’s Important to Stay in the Fight!
As the second round of the national food safety debate draws to a close, the future of our food system remains uncertain. What is certain is that there is a lot of work ahead if we are to protect the farmers and producers who provide nutrient-dense foods for our communities.
The first round was the debate and passage of the Food Safety Modernization Act (FSMA) in 2010. The debate was triggered by the very real problems in the conventional food system, with its long, complicated supply and distribution chains. Unfortunately, as is so often the case, these real problems became the excuse for a so-called solution that is unlikely to actually solve the issues. FSMA did not address the revolving door between the agency and industry, epitomized by Michael Taylor’s current position as FDA’s food czar following his work for Monsanto. Nor did it address the underlying causes of most foodborne illness, namely the industrialized agriculture production and processing systems. But FSMA will allow big agribusiness and food companies to claim that they are meeting the “highest standards possible” to ensure food safety, regardless of the continuing problems.
In cooperation with other organizations and a broad grassroots movement, the Weston A. Price Foundation worked to find a way to protect the most vulnerable farmers and food producers as much as possible in the new federal law. The result was the Tester-Hagan Amendment, which exempts producers who gross less than half a million dollars annually and who sell more than half of their products directly to consumers or local retailers and restaurants from what we predicted would be onerous new regulations. The inclusion of this amendment was vehemently opposed by both agribusiness and most consumer “victim” groups, but the local food movement prevailed.
The second round of this debate started early in 2013, with the FDA’s proposal of regulations to implement FSMA. As predicted, the proposed regulations were extremely burdensome and, in many cases, counter-productive to the goal of food safety. In addition, while the FDA had been forced to include the Tester-Hagan provisions (since they were written into the statute), the agency also proposed a revocation process that would undermine the intent and effect of the exemption.
WAPF again worked at both the grassroots and organizational level to protect farmers and food producers who provide nutrient-dense foods. At the grassroots level, WAPF sent out multiple action alerts explaining different sections of the proposed rules and providing guidance for members to submit comments. In addition, at the annual conference in Atlanta, WAPF worked with the Farm-to-Consumer Legal Defense Fund to collect hard copy comments, which were then sent to the FDA. WAPF encouraged people not only to submit comments to the FDA, but also to contact their congressional delegation to urge Congress to rein in the agency.
At the organizational level, WAPF cooperated with several other nonprofit organizations, including the National Family Farm Coalition and the Farm and Ranch Freedom Alliance, to submit detailed comments on behalf of the organizations. In these comments, the organizations called on FDA to revise the proposed regulations to:
• provide appropriate due process protections for farmers and food producers under the Tester-Hagan exemption;
• remove the restrictions on sustainable methods of farming, including diversified livestock-crop farms, the use of working animals, and the use of biological soil amendments, due to the lack of data showing an verified increased rate of foodborne illness;
• recognize that microbiological diversity protects against pathogens, and allow for the reasonable use of all sorts of microbial inoculants, including compost tea;
• reduce the testing requirements for water and recognize that the presence of generic e. coli does not necessarily create a risk for contamination;
• exempt businesses that gross less than one million dollars annually from the requirement for a Hazard Analysis and Risk-Based Preventive Controls plan;
• exempt various low-risk activities, whether conducted on a small farm or elsewhere; • expand the exemption for small-scale processors to include an exemption from the “current good manufacturing practices” requirements;
• clarify that food distributors and processors will continue to be able to obtain ingredients and products from exempted farms; and
• re-analyze the costs and the benefits of both proposed rules to address specific errors.
Round two wrapped up with the end of the comment period on November 22, and round three is already beginning. At the agency level, FDA is now required to review, analyze and respond to all of the comments. Typically, the agency would publish a final rule after conducting this analysis. However, thanks to the outcry from the grassroots, Congress is again paying attention to the issue. Seventy-five members of Congress, including forty-two Republicans and thirty-three Democrats and Independents, signed a letter requesting that the FDA issue a second draft of the proposed regulations, to allow for another round of public comments. The bipartisan coalition expressed concerns about the impact of proposed rules on farmers and businesses, including many of the same issues that WAPF and sustainable agriculture groups have raised.
In addition, as covered in the previous issue of Wise Traditions, Representative Benishek’s proposal to require the agency to conduct a scientific and economic analysis prior to enforcing any of the rules was adopted by the U.S. House of Representatives and is under consideration by the conference committee for the Farm Bill. At the time this article goes to print, the conference committee is continuing to meet to work out the differences between the House and Senate versions of the Farm Bill.
What does all of this mean? On the one hand, the FDA’s proposed regulations were truly terrible. The undermining of the Tester-Hagan exemption, combined with the extreme level of regulation proposed for non-exempt farms and producers, would be very damaging to the growing good food movement. At the same time, the exemption itself still stands―FDA could only target one farm or producer at a time, while thousands more will remain exempt. While big agribusiness and some consumer groups continue to argue that the exemption should be abolished, there has been no proposal in Congress to do so. And Congress has taken the rather unusual step of considering intervention in response to a proposed rule. Usually, Congress waits until an agency has issued a final rule and the damage is done before doing anything (if even then).
The bottom line is that we simply don’t know what will happen next. There is a lot at stake in the next stage of this fight, and we must stay engaged.
The fight over genetically engineered foods
As with the food safety issue, there is both good news and bad news on the issue of genetically engineered foods.
The much-watched Washington State initiative to require labeling of GMOs lost by a narrow margin of 51 percent to 49 percent. The biotech industry and junk food companies spent more money than has ever been spent in a Washington State ballot measure contest, creating a blitz of TV and radio ads that repeated their lies often enough to convince Washington voters that they were the truth. In addition, the turnout in the Washington 2013 election was the lowest ever recorded, favoring older and more conservative voters; there was an extremely low turnout from younger, more progressive voters who more often favor labeling. In essence, it appears that the majority of Washington voters do support labeling of GMOs, but the issue by itself is not enough to motivate enough young voters to vote. These offactual year election results indicate that a Washington State GMO labeling ballot measure might win in a presidential election cycle, which typically has much higher voter turnout.
While this defeat was discouraging, the fight against GMOs gained ground in other places. In October, voters on the Hawaiian island of Kauai passed a ground-breaking new law that mandates disclosure of pesticide use and the presence of genetically modified crops by agrochemical companies on the island, and establishes buffer zones between these operations and schools, hospitals and residential areas. The mayor vetoed the bill, but the city council then overrode the veto in November.
This victory is important not only for the citizens of Kauai, but for all of the U.S. The island of Kauai hosts fifteen thousand acres of crop lands that are used by biotech companies and chemical manufacturers to test their products. This bill creates important protections on one of the key battleground areas in the spread of genetically engineered crops.
In addition, GMO labeling bills gained ground in other states, including New Hampshire, where a vote is expected in January. Upcoming battlegrounds for GMO labeling include possible legislation in Vermont, Hawaii, and New York, and a ballot measure in Oregon for the 2014 mid-term elections. On the international front, Germany, which already labels products that contain GMO ingredients, is moving the debate forward by considering whether to include labels on the meat of animals that have eaten GMO-based feed. Much of the GMO feedstock imported to Germany is grown in the United States, so such labeling would be likely to affect the demand for GMO crops in this country as well.
Political activism at the state level: An example of why it matters, from Texas
Most state legislatures will be beginning a new legislative session in early 2014. In several states, grassroots activists are working on bills dealing with raw milk, GMO labeling, cottage foods, and more. The reality is that most of these bills will not pass in 2014. So why make the effort?
The easiest answer is that sometimes the bills do pass, whether on the first or second or third try. In recent years, bills to expand legal access to raw milk have passed in Colorado, Tennessee and Arkansas. Cottage food bills legalizing the sale of low-risk home-made foods have passed in many states, with over half the country now having such laws on the books. It often takes more than one session to build sufficient support for a bill, but success is possible.
Less obviously, there can be long-term benefits to political activism even if you don’t win a specific fight. Working on a bill, win or lose, can make a difference. Recent events in Texas provide a good example of the phenomenon of losing the legislative battle while winning important ground.
Under Texas law, it is legal for a Grade A dairy to sell raw milk. The agency regulations, however, limit the sale to the point of production, that is, at the farm. During a public meeting in 2009, agency officials stated that the regulation means that each individual had to drive to the farm to purchase his or her own milk. At that time, I asked the Texas Department of State Health Services to respond in writing as to whether various scenarios violated the agency regulations. Specifically, I posed a couple of scenarios: (1) Five people take turns picking up milk; one person drives out each week, and picks up milk for all five families; the next week, it’s another person’s turn. (2) Person A has a van; five other families pay Person A to pick up their milk for them, designating Person A to act as their agent. The agency responded that both scenarios violated the regulations, and that both the farmer and the person doing the purchasing were acting unlawfully.
As an attorney, I disagreed with the agency’s position. But one attorney’s opinion does not make the law. Without a test case, the best I could tell Texas farmers and raw milk consumers was that group pick-ups, agency arrangements, and informal co-ops were a “gray area of the law” ―they should be legal under normal principles of agency law, but the state contended the opposite.
Since 2009, we have twice tried to pass a bill in the Texas Legislature to legalize off-farm sales and delivery of raw milk by licensed dairies. The Texas Legislature only meets every other year, so the bills were filed in 2011 and 2013. At both sessions, the bill died, although it made greater progress on the second attempt. In the course of fighting for the bills, however, we educated many legislators about the issue, which proved to be very valuable.
In November 2013, the city of Ft. Worth was alerted that an individual was allowing people to pick up raw milk at her home. When city health officials came out to her house, the woman told them that she was acting as a volunteer on behalf of her co-op. Under this arrangement, one person would drive to the farm and pick up milk for a small group of families, who in turn picked up their milk at this woman’s home. City officials threatened the woman with fines and even arrest if she continued to “distribute” raw milk, relying on the state regulations.
Both the consumer and the farmer contacted their legislators. The state agency quickly found itself under pressure to explain whether its regulations truly did create grounds to fine or arrest an individual who allowed milk to be distributed from her home.
Remember that under the agency’s written opinion from 2009, this was illegal activity, by both the farmer and the homeowner.
But within two weeks, the state agency provided this response: “It is not a violation of state regulations for a dairy customer to purchase raw milk from a farmer at the farm for themselves and for others as you indicate you are doing for your COOP (and other members may do for you). It also is not a violation of state regulations for you to deliver that milk to other COOP members or to have them pick it up from you. . . . As long as the dairy is not delivering raw milk to you, then the dairy is not in violation of their state permit.”
Nothing changed in the wording of the regulations between 2009 and 2013. What changed was the agency’s attitude and interpretation. While the agency isn’t going to explain the reason for this change, the best bet is that it is due to political activism by raw milk proponents. Recognizing that the legislators were watching what the agency was doing, and that there could be political repercussions to pursuing individuals for this activity, the agency chose to adopt a less restrictive and more reasonable interpretation of its regulations.
We’ll still keep fighting for a bill to allow farmers to sell and deliver milk off-the-farm in Texas, and I believe that we will ultimately win that battle. But win or lose, the decision to be involved in the political process has already paid off for raw milk consumers in Ft. Worth and for our movement.
This article appeared in Wise Traditions in Food, Farming and the Healing Arts, the quarterly journal of the Weston A. Price Foundation, Winter 2013.