I suppose anytime one enacts a sweeping new law that affects an entire industry we can expect an outcry from the newly regulated. When it comes to the US Food and Drug Administration’s Food Safety Modernization Act, this is no exception.
FSMA has been plodding along to its final conclusion in 2015, with FDA laying the ground work for what will be a long and difficult process of implementation of the rules.
While there has been progress in rulemaking with the release of two critical rules, preventive controls for human food, and produce safety, and five more, we have still have only a murky idea of the impact this legislation will have..
The produce rule is difficult to interpret. For example, the Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption contains provisions that apply to farms, but also exempts farms based on a number of factors, such as type of crop, size, ownership of growing areas and production facilities, as well as commercial vs noncommercial operations. With all the exemptions, it is a roll of the dice whether a farmer will need to comply with any, all, or part of the proposed rules.
Naturally, with the present uncertainty there is concern. Publically, the produce industry seems to begrudgingly accept FDA’s powers, but in private, produce industry professionals express doubt about FDA’s abilities to effectively carry out the regulation in such a vast industry, and few operators have actually read the rules, even though two key ones have been out for comments since Jan. 2013.
Some of the apathy is due to the major produce operators in large part having already applied most of the required food safety initiatives outlined in the rule. The larger firms in the industry adopted the main tenants of Good Agricultural Practices and Good Manufacturing Practices in the form of industry guidance and third party audit standards years ago. The problem now seems to be, as it was from the beginning, the so called small farmers and producers. Most of these minor suppliers have not been brought under the same requirements as those imposed upon major suppliers to the large retail stores. These are the produce suppliers who grow and handle products at the end of the supply chain. It includes facilities that store, re work and deliver products weeks after harvest directly to food service and small groceries. Currently, our third party system of food safety controls has not affected these operators, and thus the fear.
Some amount of fear may not be bad thing, however. In my experience, many of these operations are in poor condition and lack hygienic standards. I recently visited a wholesale distribution and cold storage facility in Miami. The operation handled flowers, plants and produce, commingling them! Re-packing was going on throughout this poorly kept operation on the tops of old boxes and wooden pallets. The dirty hands of the cloth gloved workers touching previously washed products while they graded out decayed and non conforming product, with no hand wash sinks available.
This is the kind of operation I occasionally find in the backwater of the produce industry. It’s not my role to fix these issues, I was there to bid on a consulting project, which I did, and I was glad when I walked away from this mess. But I am left with the question of whose responsibility is this?
With that thought in mind, it was with some annoyance that I read the comments of the State of Georgia Commissioner of Agriculture, Gary Black on FSMA.
Black said in late December “new food safety rules proposed by the federal government could prove cumbersome and costly for Georgia farmers”. That cost is probably not as high as Mr. Black might make out, but I agree it can be expensive to hire a consultant to develop a program of food safety controls in operations where they never existed before, perhaps $2,500.00 to $5,000.00 or more for the consultant in a business doing $500,000. Add to this, the costs to upgrade operations such as refrigeration, acquire equipment, and make structural improvements to meet inspection requirements. FDA suggests that about $30,000 might be needed in large operations. My own experience is that currently, a medium sized produce packing facility can spend up to $250,000 a year to comply with the third party food safety standards already imposed by the major buyers.
One could argue, however, that such expenditures for safe facilities and hygienic operations are simply the cost of doing business and it is unfair for only parts of the industry to shoulder the obligation.
Dr. Michael Doyle, director of the University of Georgia's Center For Food Safety gave some balance to the discussion. “From my perspective, it's all about public health," Doyle said. "We've had so many of these outbreaks." According to FDA there have been 131 outbreaks attributed to produce between 1996 and 2010, and that list has obviously grown.
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Negativity comes not only from the ranks of government, but from so called “food freedom” groups.
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Due to the push back from all sides, the end of the year saw FDA express reservations about some of its new FSMA requirements, especially those proposed for agricultural water testing, and is reevaluating the impacts of the regulation on farms, generally.
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What this means is a setback for consumers who will wait even longer for the safety of produce, and in the meantime, the produce industry is still very vulnerable to large outbreaks of foodborne illness, as we saw in 2013 with Hepatitis A in imported pomegranate seeds,
and the parasite Cyclospora in imported greens used in salad mix.
Another Jenson Farms type of outbreak is not out of the question, either.