The Food Safety Modernization Act (FSMA), signed into law by President Obama in January 2011, was a reaction to problems with tainted food that occurred in 2009 and 2010. This bill was the first major restructuring of food safety regulation in decades and it incorporated two major changes: one, it gave the FDA very broad powers in regulating food safety—much more than previously, and two, it placed the responsibility for food safety on producers, in terms of production and liability, at a level never before established for small farmers.
Like any new legislation, the FSMA’s operational details get codified as the bill is placed into bureaucratic control—and as is typical—the Act will receive revisions now and in future years. Currently, debate about changes to the Act are underway–and given recent controversy, an extended public comment period has been established, but that comment period will close November 15th.
According to sustainable and organic growers, what’s at stake are the livelihoods and production systems of American small farmers and producers—who will be far more impacted by the regulatory changes in the bill than large agri-business. Indeed, some members of the sustainable agriculture community have gone so far as to voice concerns that this bill is almost “designed” to hurt small producers.
This is ironic, in that those same farmers are now featured in every foodie magazine essay that celebrates the positive and healthful benefits of “buying local.”
One of those groups in opposition to the current bill’s language is a clearinghouse group, the National Sustainable Agriculture Coalition or the NSAC. NSAC represents about 40 state and national organizations focused on promoting sustainable farming practices, and it has spent a good deal of time and energy focused on the Food Safety Modernization Act.
Why? In contrast to other legislation, the FSMA goes into explicit detail about many small farm agricultural practices: the number of months or weeks that manure must “cure” before use; the issue of production area contamination with wild animals (did a deer or rabbit go through the cabbage patch?); water – is the farm’s well-water, used for irrigation, tested every other week?
But perhaps the most interesting of the new criteria is whether a farm is a “facility.” If a CSA buys apples from a neighbor to pack their boxes, they become a facility and may be subject to FDA inspections. If a CSA buys lettuce from a neighbor, washes and trims it, they are a facility—but they are NOT a facility if the lettuce was grown on site—even if the process of washing is the same!
Why is the definition of facility critical? Because it makes the difference in federal registration requirements for the small farmer—and the difference in funding infrastructure requirements for inspections. This almost certainly will cost small producers money. And more problematic is that details of those expectations are not clear in the present legislation—this means that without clarification; those in charge of inspections may be making the call. That’s not how legislation should work.
Food safety IS important and small producers know that—and most follow time-honored and appropriate but cost- effective practices to manage that aspect.
It’s not news that most small farms and small producers live in the margins. To add expensive new requirements will in many cases eliminate those margins and put people out of business.
To make life more interesting, the Food Safety Modernization Act will exempt very small businesses—but has not defined what constitutes a very small business. Once again, without specific definition, those conducting the inspections will make the decisions.
Without significant change to current language, the Food Safety Modernization Act is a ticking time bomb for small farmers.