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  • From: Chrys Ostrander <chrys AT thefutureisorganic.net>
  • To: Market Farming <market-farming AT lists.ibiblio.org>
  • Subject: Re: [Market-farming] HR2749 (S. 510)
  • Date: Mon, 14 Sep 2009 11:27:07 -0700

Judy, Folks,

This is a lot to read and I've tried to get it mostly right, but I think it's crucial and worth the time. Please let me know if you think I've erred or left stuff out.

HR2749 has already passed in the House. The Senate, if you remember your civics classes, also must come up with a bill and then the two chambers get together in conference committee to draft a bill for the President to sign.

Right now the most prominent Senate bill is S. 510, the Food Safety Modernization Act. Passage of a new federal food safety law may or may not sound the death knell for thousands of small farms and small-scale food processors, set back progress towards relocalized food systems and hobble the movement towards more sustainable local economies, depending on what the final provisions call for.

I've attempted to "read" the text of S. 510, the Food Safety Modernization Act using an intriguing web two-point-oh resource called <http://www.opencongress.org/bill/111-s510/show>opencongress.org. I haven't had much luck making sense of a law that is nothing more than a long series of disembodied insertions and deletions to other laws. That seems to require a lawyer.
http://www.opencongress.org/bill/111-s510/show

Well, there is a lawyer who has done it and who has summarized the bill's provisions. He is none other than Bill Marler, the country's preeminent personal injury attorney specializing in food-bourne illness litigation. While any respect I have for Marler's legal expertise is tempered by my nagging impression that Marler is something of an egocentric 21st century ambulance chaser, dauntless in his pursuit of legal fees from food-bourne illness cases, he is very good at what he does and his summaries of S. 510 and HR 2749 are useful as we contemplate what we need to demand of lawmakers to avert a regulatory disaster for small farms and small-scale food processors.

Since Marler is a powerful lawyer, I won't cut and paste his summaries here claiming the fair use doctrine, but here are the links, so his text is only a click away:



<http://www.marlerblog.com/2009/09/articles/lawyer-oped/s-510-fda-food-safety-modernization-act-introduced-in-senate/>S. 510 FDA Food Safety Modernization Act Summarized by Bill Marler

http://www.marlerblog.com/2009/09/articles/lawyer-oped/s-510-fda-food-safety-modernization-act-introduced-in-senate/

<http://www.marlerblog.com/2009/08/articles/lawyer-oped/a-friday-and-saturday-night-read-hr-2749-food-safety-enhancement-act-2009-so-whats-really-in-it/>HR 2749 the Food Safety Enhancement Act Summarized by Bill Marler
http://www.marlerblog.com/2009/08/articles/lawyer-oped/a-friday-and-saturday-night-read-hr-2749-food-safety-enhancement-act-2009-so-whats-really-in-it/

And a final word about Marler: He does make, at the end of his summary of HR 2749, some very good comments about exempting producers who sell direct to the consumer from these laws and the "need to balance safety with environmental policy - both energy/global warming and protection of biodiversity. We need a food policy that helps create healthy humans."

In regards to S. 510, here's what I come away with:

S. 510 exempts farms, restaurants, other retail food establishments, nonprofit food establishments in which food is prepared for or served directly to the consumer and most fishing vessels from "registration" as "facilities" with the FDA (registration creates the obligation of the registrants to comply with the protocols and record-keeping provisions of the law and exposes them to the penalties and fines). It's also important to note that S. 510 does not contain registration fees as does HR 2749 with its much maligned one-size-fits-all $500 fees for all registrants, regardless of size or level of potential risk, however, this is off set by hiding the fees registered facilities would be required to pay for in "re-inspection fees" (like, you didn't have every single detail in line when you had your free, routine inspection, so you need to be re-inspected. Believe me, that'll cost you. And there will be a great incentive for the FDA to find reasons to re-inspect you since, according to Marler, "fees collected are available until expended – can be used for FDA salaries, as necessary").

But whatever is given in this exemption for farms is almost entirely taken away by the definition of what a farm is:
"Farm means a facility in one general physical location devoted to the growing and harvesting of crops, the raising of animals (including seafood), or both. Washing, trimming of outer leaves of, and cooling produce are considered part of harvesting. The term farm includes: (i) Facilities that pack or hold food, provided that all food used in such activities is grown, raised, or consumed on that farm or another farm under the same ownership; and (ii) Facilities that manufacture/process food, provided that all food used in such activities is consumed on that farm or another farm under the same ownership." (S. 510 uses the definition of a farm that's in 21cfr1.227)

As we all know, the USDA and just about every county extension office across the country have for decades been encouraging small farms to diversify and incorporate value-added activities in their business plans. If you're a small farm and you make a little extra spending money making raspberry jam or bake your apples into pies to sell to local stores or at the farmers market, S. 510 will require you to register with the FDA, develop a HACCP plan, implement it and keep records on its implementation, etc. etc. etc. ad nauseam. If you are, or you know a small-scale diversified farmer or artisan food processor, you know that their workdays are already long and hard and their profit margins slim. Many would simply throw in the towel under this type of regulatory burden. There MUST be some scale-based exemptions from registration afforded to farms that also do some processing and for food processors who process local product. At the very least we should insist that S. 510 include a definition for “retail food establishments” that allows for some cottage level processing without invoking FDA oversight, and regulation and exemptions in the registration and record-keeping sections of the bill for direct market farmers, as was added to HR 2749 prior to passage.

A VERY troubling aspect of both these bills is a provision that the FDA is charged with coming up with federal production standards for fruits and vegetables. This is linked with the "leafy greens" debate that is also just as hot now as the food safety debate. Such standards are not needed, in my opinion, as outbreaks from fruits and veggies are relatively rare and occur more at the processing end than at the production end (the spinach fiasco would not have been that bad if so much spinach wouldn't have been processed in one plant). Such standards carry the very real risk that they would favor producers who have the deep pockets to retool their production to comply while forcing the smaller producer out of business. We're already seeing the impact of the Calif. leafy greens marketing agreement. Now there are hearings about a "voluntary" federal leafy green marketing agreement. Besides the cost and paperwork aspects and the destructioon of bio-diversity (as evidenced by Calif's experience) there is the added issue that some buyers won't buy from you if you don't do as the marketing agreement/order dictates, making the program's "voluntaryness" a moot point. FDA production standards will not be, to the best of my knowledge, voluntary. Best management practices on the farm I believe are best left to local institutions like extension and need not be federalized; at least not for the small to mid-sized producer.

So, S 510 will need to be improved. For this you need to contact your
Senators.

Some say, it's just a power grab by big ag to put the smaller producer out of business. Certainly there are elements of that. But I don't believe the answer is to just flat out oppose the bill and leave it at that without QUALIFYING your opposition with demands for improvements in the bill's language. Passage of a federal food safety law is very likely. The aim is to minimize the damage. Of course, if we somehow were able to generate a huge groundswell of loud, qualified opposition, we could get congress to make the changes we seek. We could do it if we get groups like Farm Aid and the Farm Bureau and some of the producer trade groups to side with us and back the same proposals. But it starts with you picking up the phone today and chatting with your Senator's ag rep. Okay? Pick up the phone.

Chrys Ostrander

PS Breaking News (from the Nat'l Sustainable Agriculture Coalition):

New Food Safety Report: On Thursday, September 10, the Institute for Agriculture and Trade Policy and Food and Water Watch released an excellent <http://salsa.wiredforchange.com/dia/track.jsp?v=2&c=%2BXJNP3pvJqN2Vam0MkEFkmEbp4fLaVAm>new food safety report,
http://salsa.wiredforchange.com/dia/track.jsp?v=2&c=%2BXJNP3pvJqN2Vam0MkEFkmEbp4fLaVAm
"Bridging the GAPS: Strategies to Improve Produce Safety, Preserve Farm Diversity and Strengthen Local Food Systems." Written by Elanor Starmer and Marie Kulick, the report is a welcomed addition to the public discourse as Senator Tom Harkin (D-IA), incoming Chairman of the Senate Health, Education, Labor and Pensions Committee and other committee members consider food safety legislation (S. 510), and the Agricultural Marketing Service (AMS) of USDA holds hearings on a proposed national Leafy Greens Marketing Agreement.


At 09:07 AM 9/14/2009, you wrote:
Good Morning to everyone on the list serve! If you haven't contacted your legislators about HR2749, this would be a good time. Some of the regulations in this bill I think, are good ideas, or at least the motives are sound. Some of the regulations for small farmers are impractical at best. Let your voice and opinions be heard.

Thanks,
Judy McGary
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This message originated from or was forwarded by:
Chrys Ostrander
Chrysalis Farm @ Tolstoy
Organic Micro-permaculture
33495 Mill Canyon Rd.
Davenport, WA 99122
509-725-0610
chrys AT thefutureisorganic.net
http://www.thefutureisorganic.net

"From each according to their ability, to each according to their needs"
Louis Jean Joseph Charles Blanc - "The organization of work" 1839
Karl Marx - "Critique of the Gotha Program" 1875

"The purpose of agriculture is not the production of food, but the perfection of human beings"
Masanobu Fukuoka (February 2, 1913 - August 16, 2008) - "One Straw Revolution" 1978

"The community whose every member possesses the art of deriving a comfortable subsistence from the smallest area of soil... will be alike independent of crowned-kings, money-kings, and land-kings...."
Abraham Lincoln: Address to the Wisconsin State Agricultural Society, Milwaukee, Wisconsin, 1859

"We will never have an organic future and a stable climate until we pull all the troops out of Iraq
and redirect our annual $650 billion military budget to greening the economy and guaranteeing
a sustainable environment and economic justice for everyone."
Ronnie Cummins, National Director, Organic Consumers Association
at the "Farms Not Arms" public forum and protest in Manhattan, September, 2007





  • [Market-farming] HR2749, judith mcgary, 09/14/2009
    • Re: [Market-farming] HR2749 (S. 510), Chrys Ostrander, 09/14/2009

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