The Food & Drug Administration (FDA) Commissioner surprised the public with the announcement that he is resigning at the end of March. He had just recently hired senior staff, after tweeting two months before “I’m not leaving … We’ve got a lot of important policy we’ll advance this year.” Gottlieb stated that he was leaving to spend more time with his family.
Unlike many of the current administration’s appointments, Gottlieb was not across-the-board anti-regulation. He continued programs begun under the Obama Administration on nutrition labeling and sought to increase regulations for youth vaping tobacco use. While many in our community hoped that this administration would roll back the more burdensome provisions of the Food Safety Modernization Act (FSMA), Gottlieb took no such action.
Speaking of FSMA, are you watching your state agriculture department? FDA’s preferred method for implementing FSMA is through cooperative agreements with state agriculture and health departments, in which the state agencies are the primary implementors and enforcers. All but four states (Wyoming, North and South Dakota and Illinois) have agreements with FDA. The implementation of the Preventive Controls Rule, for food manufacturers and processors, is likely to be relatively straightforward, since these businesses are already subject to state regulation in most cases.
In contrast, implementation of the Produce Safety Rule is fraught with uncertainties, since this is the first time that the federal government will regulate how fruits and vegetables are grown and harvested. As we’ve covered in past issues of Wise Traditions, small-scale, direct-marketing farmers are exempt from the Produce Safety Rule’s substantive requirements, although they do have to maintain records to be able to prove their qualified exemption. This exemption, often referred to as the Tester-Hagan exemption in recognition of the two senators who championed it, is vital to the survival of small-scale farms, given that the costs of complying with the rule would otherwise cost more than the entire profit margin of many of these farms!
Many state agencies, however, have expressed hostility to the exemption for small farmers. In Texas, this took the form of trying to undermine the exemption through state-level regulations. In December, the Texas Department of Agriculture (TDA) issued a proposed regulation that would have required all farms, including exempt ones, to register with the agency and submit documentation to prove whether they were exempt. If a farmer failed to submit the required paperwork annually, then he or she would be subject to an inspection by the agency, to be conducted under the presumption that the Produce Safety Rule did apply to their farm—a presumption that would inevitably mean that the farm would be found in violation and face extensive fines. The proposed rule also created a new term, “egregious conditions,” under which TDA claimed authority to come onto any farm at any time and halt sales.
The Farm and Ranch Freedom Alliance quickly rallied opposition to the proposed rule, starting with getting people to submit comments to the agencies and then contact their legislators—culminating in the introduction of a bill to limit the TDA’s authority and prevent it from adding these requirements. The agency then stepped back and withdrew the rule.
The lesson? Watch what your state agencies are doing and be ready to speak up! WAPF and others fought hard for the Tester-Hagan exemption, and we must continue to defend it vigorously. As evidenced by TDA’s withdrawal of its proposed rule, grassroots action can be effective—we just have to be alert and prepared.
This article appeared in Wise Traditions in Food, Farming and the Healing Arts, the quarterly journal of the Weston A. Price Foundation, Spring 2019