permaculture

["Johnathan Avery Yelenick" <yelenick@riseup.net>]

Hi Y'all,

Just passing along some information of interest to farmers on this list
who may produce value-added products. You might be affected. See below...
I'm passing along this message from the Market Farm list I'm on.

Best,
Johnathan Yelenick
Blacktail Permaculture Farm
South Platte River Watershed of the Short Grass Prairie Steppe Bioregion

*********************************************

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.

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
>_______________________________________________
>Market-farming mailing list
>Market-farming@lists.ibiblio.org
>http://lists.ibiblio.org/mailman/listinfo/market-farming