Thank you to the many people who have called or emailed their Senators to urge them to amend or oppose S. 510, the Food Safety Modernization Act! The bill continues to be delayed and its future is unclear. But it still poses a threat to producers of local, nutrient-dense foods.
ACTION TO TAKE
If you have not yet called your Senators, please do so now! I cannot stress how important it is to make your voice heard on this issue. Urge them to support the Tester-Hagan amendments to exempt small-scale and direct marketing producers from the most burdensome provisions of the bill. Also encourage them to support the Senator Feinsteins proposal to ban Bisphenol A (BPA) from food containers because this endocrine-disrupting chemical has no place in our food.
You can find your Senators contact information at www.Senate.gov or by calling the Capitol Switchboard at 202-224-3121 or toll-free at 877-210-5351.
IMPORTANT TO NOTE
Several members have received responses from their Senators extolling provisions in the bill that allegedly help or exempt local food producers. Its very important that we continue to educate these Senators about the real impacts of the bill. Check out the questions and answers below for more information.
QUESTION: Does S. 510 help small farmers and local food producers?
NO! The bill does include provisions to try to reduce the burdens that will be imposed on small producers, such as providing for longer deadlines for compliance and directing FDA to consider various issues facing organic farms and small businesses. But none of these actually prevent FDA from imposing new, burdensome requirements. The provisions essentially tell FDA to be nice to local food producers, but do not create enforceable limits on the agency’s power.
The only enforceable limit is that FDA’s new regulations cannot contradict the regulations for certified organic producers. But many local food producers are not certified organic. And even certified organic can still be subject to additional regulations by FDA imposing impractical or unfair burdens, so long as the regulations dont directly contradict the organic regulations.
While the industrial food system is in need of reform, the well-publicized problems with food safety have not come from the sustainable, local food system. No one has demonstrated any need to have local producers regulated by FDA more than they already are! The Tester-Hagan amendments are a reasonable method for protecting local food producers from unnecessary and unfair regulations.
QUESTION: Are direct marketing farms exempt from the bill?
NO! Under the bill as written, all farmers raising produce are subject to the produce safety standards (section 105 of the bill) regardless of how they market their fruits and vegetables. The Tester-Hagan amendments are needed to protect direct marketing produce farmers from being told how to grow and harvest their crops by FDA bureaucrats.
QUESTION: Are direct marketing food processors exempt from the bill?
NOT CLEAR! Based on FDAs guidance documents, food processors who market directly to consumers might be exempt from the requirements for HACCP-type programs. But the language is far from clear, and subject to change any time FDA chooses.
The bills provisions for traceability and HACCP-type requirements are dependent on the definition of facility under the 2002 Bioterrorism Act. That Act exempted farms and retail food establishments from being categorized as facilities, but it did not define the terms. So the scope of these exemptions is defined by FDAs regulations and guidance documents, which can be changed by the agency without Congressional approval.
In addition, the current definitions do not appear to address the majority of our local food producers. Under FDA’s guidance document, a “retail food establishment” is an establishment that sells food products directly to consumers as its primary function. However, the FDAs definition of consumer excludes end users such as restaurants, local grocers, and schools. So many food producers who provide healthy, safe foods to these institutions would be subject to HACCP-type regulations under the bill and current definitions.
Moreover, the specific examples of retail food establishments are establishments such as grocery stores, convenience stores, and vending machine locations. Not only are farmers markets, farm stands, and CSAs not listed, but they may not qualify because they typically sell food at a different physical location than where the food is held, packed, or processed. Consider the typical example of a small-scale processor who buys local ingredients and makes jams, breads, cheeses, etc. to sell at the farmers market. It may be that the farmers market itself qualifies as a “retail food establishment” — but the commercial kitchen where the goods were prepared would not qualify, because the main purpose of that location is to process food, not sell to consumers. Different physical locations may mean different requirements under the FDAs definitions.
“Farms” are also exempt from registration requirements. But the definition of “farm” specifically excludes any place that manufactures or processes food, unless that food is consumed on location. Take a typical farm that processes some of its own fruit into jams. Farmer Joe argues that he is exempt from registration as a “farm.” FDA points to the fact that, if he’s selling any of that jam, he’s a facility because of the limitation on the definition of farm. While Farmer Joe might fit under the literal terms of the “retail food establishment” definition, FDA has a very strong argument that Congress wouldn’t have acquiesced in the narrow definition of farm if it intended these locations to be exempt.
The bottom line is that some direct marketing food processors would be exempt from the requirements as “retail food establishments,” but the FDA’s definitions do not appear to cover many of our local food producers, and FDA can change the definitions at any time. Local food processors are already regulated by the local and state authorities, and FDA regulation is not needed. The Tester-Hagan amendments are a reasonable way to protect small-scale businesses from overly burdensome and unnecessary regulations.
QUESTION: What is BPA?
Bisphenol A (BPA) is a chemical found in the linings of cans and in polycarbonate plastic, including some sports bottles, food-storage containers and baby bottles. It has potential links to a wide range of health effects, including an increased risk of diseases or disorders of the brain, reproductive and immune systems. A recent CDC study showed that more than 90 percent of Americans have BPA in their urine, suggesting that exposure to BPA is likely prevalent and ongoing. In January, the FDA changed its position on the safety of BPA, voicing some concern about its effects on children and infants, but stopped short of calling for a ban. Previously the agency had said trace amounts of the chemical that leach out of food containers are not dangerous, only later admitting that it relied on a small number of industry-sponsored studies