HR 2749’s Real Impacts: a Response to Consumers’ Union

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Consumers Union (CU) recently posted a defense of HR 2749 that casually dismisses concerns the bill would hurt small farms and local food businesses.  The CU avoided addressing the Farm-to-Consumer Legal Defense Fund’s detailed analysis, which is posted at http://www.farmtoconsumer.org/news/news-15june2009.htm, and conflated arguments made by FTCLDF with statements made by anonymous individuals and posted on a blog.

H.R. 2749, the Food Safety Enforcement Act (FSEA), adds over 130 pages to the Food, Drug and Cosmetics Act with myriad new requirements and penalties for violations.  The FTCLDF agrees that the industrial food safety system has serious flaws and needs to be fixed. The country has seen numerous outbreaks of foodborne illnesses caused by imported foods or domestic foods that were processed in huge facilities and shipped throughout the country.  Unfortunately, HR 2749 does not focus FDA’s efforts on these very real problems.  Instead, it creates a regulatory framework that will heavily burden the small farms and local food processors, the very people who provide a safe, healthy alternative to the industrial food supply.

Food safety is a priority shared by everyone.  The FTCLDF calls on Consumers Union and the other groups supporting HR 2749 to explain exactly how the bill would address the industrial food supply problems without harming the local food movement.  The fact that massive, industrial food companies, such as Peanut Corporation of America, have killed or sickened people is a strong argument for regulating such companies, and we applaud CU’s efforts to improve the industrial food supply.  But the wrongs committed by these companies are not a valid basis for harming the hundreds of thousands of safe, healthy small farms and artisan producers who will be burdened, or even driven out of business, by HR 2749.

Issue 1: Registration fees
FTCLDF agrees with Consumers Union that the registration and fee requirements of HR 2749 do not apply to individuals’ home or gardens if those individuals are not selling food to anyone else.  The Fund’s website states: “The agency’s regulatory power is limited to commerce, so non-commercial activities (such as growing your own vegetables for personal consumption) are not regulated.”  (http://www.farmtoconsumer.org/news/news-HR2749-FAQ.htm)

But CU’s statement that the registration requirements do not apply to farms depends on one’s definition of “farm.” While the statute excludes “farms,” the FDA’s current regulations take a very narrow view of what qualifies.  Under the existing regulations, a place that grows food and does any processing of that food for sale would not be a farm, and thus would be subject to HR 2749.  See 21 CFR § 1.227(3) and (6).   In other words, a farm that washes greens, cut vegetables, or dries fruit before selling it would be forced to register and pay the annual fee under the regulatory definition of “farm.”  Currently, FDA has a guidance document that modifies the regulation and allows “farms” to process food so long as the ingredients are grown on the same farm.  Even under the guidance document, many small farms and artisanal producers could be required to register.  FDA has not strictly enforced this requirement so far, but that is no guarantee about future actions by the agency.  And if the agency were to revoke the guidance document and enforce the registration requirement in accordance with the definition of “farm” contained in the regulations, many farms would be required to register and, under the FSEA, pay an annual fee.

Moreover, farms are not the only issue.  There are thousands of individuals who are making artisan foods, such as making jams, breads, fermented vegetables, cheese, or other foods, which they sell to directly to customers at local farmers markets and similar venues. All of these individuals would be forced to pay an annual fee of $500 to the FDA and comply with extensive paperwork burdens.  Notably, the fee is the same regardless of whether it applies to an individual selling a few hundred dollars worth of product or a multi-million dollar company shipping products all over the country.

It is not equitable for a local grandmother making jam from farmers’ excess fruit to have to pay the same fee as a Heinz processing plant.  Nor does the FTCLDF believe local artisan food processor should be subject to the same extensive paperwork requirements as the massive industrial processing plants.

Issue 2: the regulation of how farms grow and harvest crops
FTCLDF agrees with Consumers Union that HR 2749 does not call for the elimination of organic practices.  However, the bill’s provision directing the agency to set standards for how food is grown and harvested is very troubling.   For example, after the E. coli outbreak linked to spinach that was grown in California and then processed and sent all over the country, the agency developed guidelines that were based entirely on the industrial agriculture model: farms growing thousands of acres of monoculture crops situated next door to huge confined animal feeding operations.  The guidelines were expensive, burdensome, and wholly unnecessary for small, diversified farms. 

After FTCLDF issued its first alert, HR 2749 was amended to direct FDA “to take into consideration, consistent with ensuring enforceable public health protection, the impact on small scale and diversified farms…”  While this is an encouraging step, it does not provide sufficient protection.  The FDA has yet to demonstrate that it has any understanding whatsoever of the needs of small scale and diversified farms.  And the new language does not prevent FDA from developing standards that drive such farms out of business under the guise of developing “enforceable standards.” 

No one has demonstrated any need for FDA to regulate growing practices on small and diversified farms.  No major outbreaks have been traced to such farms.  There is nothing to be gained, and much to be lost, by granting FDA this authority.

Issue 3: Warrantless searches
CU states that HR 2749 does not authorize FDA to conduct random, warrantless searches.  But the bill does empower the agency to obtain all documents relating to “the production, manufacture, processing, packing, transporting, distribution, receipt, holding, or importation of such article maintained by or on behalf of such person in any format (including paper and electronic formats) and at any location.”  See Section 106(a)(1)(B).  These extensive records must be produced whenever FDA decides to do an inspection, even without a warrant.

These requirements may be appropriate for large-scale production facilities, such as the Peanut Corporation of America that CU uses as an example, but consider the implications for small-scale artisan producers, many of whom maintain commercial kitchens within their own homes.  HR 2749 calls for the inspections to be conducted on a random basis.  See Section 105(a).  There is no requirement that the agency suspect any wrongdoing before conducting this burdensome, intrusive search.  A “low-risk facility that manufactures or processes food” – such as a local jam maker or baker – would be subject to such an inspection every 18 months to 3 years.  FTCLDF does not believe that inspecting small, local producers, including demanding all of their records, is the best use of limited resources to protect food safety.

Issue 4: Quarantines
As originally drafted, HR 2749 authorized FDA to quarantine “any geographic area within the” U.S., including “prohibiting or restricting the movement of food or of any vehicle being used or that has been used to transport or hold such food within the geographic area.” See Section 133(b)(1) of the Subcommittee’s version of HR 2749.  After the FTCLDF issued its first alert, the bill was amended to provide some limits to this power, and it now states that the quarantine “shall be no greater than is appropriate, as determined by the Secretary, to protect the public health.” See Sec. 133 of the Committee’s version of HR 2749.  While this is a positive change, the bill still sets a low standard for the agency to make to use this extreme power.  Consider the damage that was done to tomato growers in 2008 because of the agency’s inaccurate claim that tomatoes were causing a salmonella outbreak.  The FDA’s track record does not support giving it such broad power without even the minimal requirement of having to obtain a court order. 

Issue 5: Traceability requirements
FTCLDF agrees with Consumers Union that the traceability requirements of HR 2749 will not apply to every single person’s home.  The agency’s authority is limited to food in commerce, not personal consumption.

However, Consumers Union incorrectly implies that the traceability requirements are limited to interstate commerce by stating that that the bill requires FDA” to establish a system for tracing a food sold in interstate commerce.”  HR 2749 contains no such limitation, and simply states that the agency shall “establish a tracing system for food that is located in the United States or is for import into the United States.”  See Section 107(c)(1). 

HR 2749 exempts direct farm-to-consumer sales, but only when all of the ingredients are grown on the same farm.  For example, a farmer who sells peaches grown on his farm would be exempt from the traceability requirements.  But if that same farmer sells his peaches to a neighbor who makes jam out of it and sells that jam at a local farmers market, the farmer and jam maker would both be subject to the traceability requirements.  These requirements include maintaining a “full pedigree of origin and previous distribution history of the food” in a manner that “is interoperable with the systems established and maintained by other such persons.”  See Section 107(c)(2)(A)(i)(I) and (III).  The language of the bill is far from clear, and could easily result in small food makers being required to keep extensive electronic records.

Traceability is of value in long industrialized supply chains, in which large commercial processors ship food all over the country or internationally, such as in the example of the Mexican peppers cited by Consumers Union.  But the same requirements should not apply to small, local producers, where they are unnecessary and overly burdensome.

Issue 6: Penalties
FTCLDF agrees with Consumers Union that people who sell food that they know is likely to kill or sicken people should be severely penalized.  But HR 2749’s severe penalties --  including up to 10 years in prison or $100,000 fines for individuals – are not limited to those situations.  These penalties are not appropriate for Amish farmers who have religious objections to electronic registration, local bakers who do not fill out the required paperwork, or the thousands of other individuals who could be jailed or fined for actions that do not create a threat to human health.  Moreover, under the bill, “each day during which [a] violation continues shall be considered a separate offense,” meaning farmers can easily rack up large fines for what would be minor offenses.  See Section 135.

Conclusion
HR 2749 is seriously flawed because it does not require FDA to focus on the real threats to food safety: imported foods and industrial domestic foods shipped all over the country.  Instead of ensuring effective, on-the-ground inspection, the bill focuses on paperwork requirements that are ineffective and counter-productive.  At the same time, it imposes extensive, burdensome federal regulation on small, local farms and businesses, which have not been the source of the major food recalls.  It would be best to start over with a new bill that addresses the real problems from the beginning. 

The FTCLDF calls on the Consumers Union and other organizations supporting HR 2749 to address the potentially crippling effect the bill would have on the nation’s small farms and local food processors rather than dismissing these issues.

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