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Food Safety Bill Passes House After Concerns of Organic & Small Producers Stall Passage

July 30, 2009
Organic Consumers Association
by Alexis Baden-Mayer, Esq., Political Director

SUMMARY: The US House of Representatives passed the Food Safety Enhancement Act, H.R. 2749, today. This was the second attempt to pass the bill. Representative Dingell's willingness to address the concerns of organic and small producers (raised by Representative Farr and Blumenauer), was one of the factors that eased passage the second time around. It's now up to the Senate to move similar legislation. Organic Consumers Association will be organizing its members to contact the Senate to ensure that their version has stronger language to protect small producers from a regressive fee structure and burdensome tracking requirements, and organic producers from conflict with National Organic Program regulations designed conserve wildlife habitat.



If you've seen the movie Food Inc., you have no doubt been moved by the experience of Barbara Kowalczyk. Her tearful description of her 2 1/2 year old child Kevin's painful death from an E. coli-tainted hamburger puts a face on a tragedy that is all too common. With 5,000 deaths and an addition 75 million sicknesses caused by unsafe food each year, any one of us could be the next victim and what happened to Barbara's child could happen to our own.




While certified USDA Organic food is the safest food you can find in the grocery store, and no certified organic food has ever been found to be the source of a food-borne illness, organic products (especially those that are processed or packaged in the same facilities as conventional food) are not completely immune and some were even caught up in the salmonella peanut product recall.



We should all join Barbara who became a food safety advocate in the hopes of sparing other mothers her tragedy.



Congress's latest attempt to address food safety is H.R. 2749, the Food Safety Enhancement Act. According to the Consumers Union, the bill would require:



• Inspections of high-risk food facilities at least every 6-12 months as well as inspection of lower-risk facilities at least once every 3 years (FDA currently averages inspections once every ten years.



• Righ-risk food facilities to submit the results of testing their finished food products for safety.



• All registered domestic and foreign food facilities to identify hazards and implement steps to prevent or reduce contaminants that may appear in food.



• Businesses to keep basic safety records in a standard format so they are easier for FDA to review.



• An FDA-mandated recall if a company fails to do so when requested.



• Food facilities selling to American consumers to register with the FDA and pay annual fees.



• The FDA to gather information and run a pilot project to set up a method to trace food back to its source in the case of contamination. Such a “traceback” system would have to allow FDA to trace food back to its source within 2 business days.



When applied to the big factory farms and processors that supply most of the nation's food, these reforms make sense and are badly needed.



But, they aren't an improvement on organic standards and could result in conflicts with the biologically diverse farming methods of organic farmers, economic harm to small farmers, and a trampling of efforts to boost wildlife habitat and water and air quality.



This criticism has resulted in the addition of important language requiring the consideration of potential impacts on family and organic farms. The bill directs the USDA to "take into consideration, consistent with ensuring enforceable public health protection, the impact on small-scale and diversified farms, and on wildlife habitat, conservation practices, watershed-protection efforts, and organic production methods."

The bill also provides limited exemptions from traceability and registration requirements for direct farmer-to-consumer marketing and exempts food, facilities, and farms that are already regulated by USDA from new FDA regulations.
In addition, the bill includes provisions for coordination between USDA and FDA and an exemption for grain and hay farmers from full-scale electronic traceability requirements. 
Unfortunately, despite these changes the underlying bill still contains provisions that would have a very significant negative impact on family farms while not advancing the cause of food safety, including:
§      a flat $500 registration fee per facility -- a regressive tax that disproportionately impacts small scale producers engaged in on-farm value-added processing;

§      expensive and unworkable electronic tracing requirements for farmers who sell their products primarily into the wholesale market;

§      language that could do serious harm to wildlife and biodiversity, while failing to specify the positive role that conservation practices can play to address food safety concerns; and

§      the absence of specific guidance to ensure that new food safety standards are harmonized with certification requirements under the National Organic Program.
These provisions would hinder sustainable and organic family farmers’ access to markets and economic viability.  Given that the changes were not made before H.R. 2749 was taken to a vote, the Organic Consumers Association encouraged its members to recommend that their Congresspersons vote against the bill.

On July 29, 2009, H.R. 2749 was brought up on a suspension calendar requiring a two-thirds vote and failed, in large part because of the concerns of organic and small-scale producers left outstanding. Find out how your Congressperson voted here.

On July 30, 2009, H.R. 2749 was debated and voted on again, this time with only a simple majority required for passage. It passed.
See how your Congressperson voted here. During the debate, several of the concerns of organic and small producers were raised:
Rep. Sam Farr addressed Rep. John Dingell saying, "I have deep concerns ... about the fee structure in the measure, which would charge a farm family making jams or syrup or cheese the same fee as a processing plant owned by a multinational corporation employing hundreds or thousands or workers.  This strikes me as not only unfair but contrary to federal farm policy that has encouraged small and mid-sized family farms to get into small scale value-added enterprises to survive economically.  I am seeking an assurance ... that a more progressive fee structure will be found that does not inhibit our farm families from taking advantage of new markets.

"As a member of the Organic Caucus, I also have concerns about the interplay between this bill and the National Organic Program.  Is it the Chairman's [Rep. Dingell's] understanding that this bill would not establish any requirements for organically produced or processed products which are in conflict with the requirements established by the Organic Foods Production Act of 1990 and the USDA's National Organic Program regulations?"
Rep. Earl Blumenauer joined Rep. Farr saying, "I appreciate the efforts of the Chairman [Rep. Dingell] to address some of the concerns of small and organic farmers. ... I am concerned about the impact of this bill on the small farmers in my state and across the country. Over sixty percent of Oregon farmers make their living from a farm that is smaller than fifty acres. I echo Mr. Farr’s concerns regarding the fairness of some of these requirements for these farmers.

"I am also concerned about the language regarding interaction between wildlife, livestock and farming practices. Biodiversity is a prerequisite for a healthy farm and not something we should penalize farmers for. Last week in my state, staff from Oregon State University and the Xerces Society led a tour to four diverse Oregon farms where farmers are utilizing techniques such as naturescaping, floodplain restoration and natural hedgerows to encourage crop health, control pests and invasive species, and enhance soil quality. I am concerned that these practices, which are cost effective and bring benefits to the farm and local wildlife, would be in jeopardy under this legislation.

"I believe we should target reform and safety efforts towards practices which have been directly linked to food disease outbreaks, rather than limiting approaches that farmers have used for centuries to reduce their dependence on pesticides, herbicides and other carbon intensive farming techniques.

"I would like assurance from the Chairman that as the Food and Drug Administration develops these criteria, they will consider the needs of small farms and the practices of organic farmers."
Rep. Dingell responded, "I thank my colleague(s) for their comments. The bill before us includes important language that would exempt from registration and from fees on-farm processors who sell more than half of their product by value directly to consumers or who process grain for sale to other farms.  I believe these two provisions go a long way to satisfying the kinds of concerns being expressed.  However, I realize there are other small farms or small local processors who will not fit under these exemptions who may face a hardship and I promise to work with my colleagues to address these concerns as the bill moves into conference.

"With respect to the National Organic Program, it is my expectation that FDA will work very closely with the NOP as it implements this bill to ensure there are no such conflicts. There is direction within the bill for the FDA to consider small farms, organic practices and conservation methods, and I trust that this will be followed. The intention of this bill is not to harm farming practices that have existed for centuries with minimal documented health risk."

The bill now heads to the Senate. According to the National Sustainable Agriculture Coalition and the National Organic Coalition, the following concerns remain:

H.R. 2749 will require f armers who process their harvest into value-added products to register with the Food and Drug Administration (FDA) and pay an annual $500 fee.
Many farms process their own jams, cheeses, beverages, or other products, therefore qualifying as “facilities” under the terms of the bill. While H.R. 2749 bill exempts facilities that sell over 50.1% of their processed products directly to the consumer, it still imposes a fee on those who primarily sell wholesale. The direct marketing exemption, while welcome, is not sufficient.
H.R. 2749 requires facilities of all size, regardless of whether their annual revenue stream is $1,000 or $1 million or $100 million, to pay the same fee. In fact, according to the Energy and Commerce Committee staff estimates, the majority of the registration fees will be collected from the smallest processors including farmer processors.  In many cases, the $500 fee will be cost-prohibitive for a small farm operation whose value-added processing activity is a small offshoot of the primary farming business. This is a fundamental issue of equity. Any fee should be progressive and exempt small-scale on-farm processing.
According to the Congressional Budget Office, the fee schedule in the bill will bring in $368 million a year when the total cost of the bill is nearly $1.5 billion a year. If the
important food safety promises in the bill are going to be realized, Congress is going to have to come up with substantial additional appropriations.
As instructed by the language in the current bill, FDA can require certified organic farms to follow the new safety standards promulgated by FDA. 

While the language instructing FDA to coordinate with USDA, secured by the House Agriculture Committee in its
negotiation with Energy and Commerce, is a very positive step in the right direction, specific language that requires the FDA to coordinate with the National Organic Program on the development and enforcement of standards with respect to organic farming should be included.  

The NOP has long had food safety measures in place that require traceability via a documented audit trail as well as stringent manure use and composting regulations. Left as is, with broad language instructing FDA to coordinate with USDA across the wide range of issues in the bill and
with many different USDA agencies, certified organic farmers could still face duplicative or conflicting requirements or fees. 

HR 2749 would not exempt farmers selling direct to institutional settings or “identity-preserved” products that specify the identity and location of the farm all the way to the consumer .  

HR 2749 contains an exemption from traceability for food sold directly from a farmer to consumers, restaurants and grocery stores, but not for farmers who sell to school or hospital kitchens. There is a groundswell of activity across the country around getting fresh, local, high quality food into our public institutions to help reverse a public health crisis highlighted by burgeoning rates of obesity and diabetes. HR 2749 should recognize and encourage the increased demand for locally-produced agricultural products in school cafeterias.
In addition, many small and mid-sized farmers do not sell direct to consumer but the identity of their product is preserved through the supply chain and is on the product when it is bought by the consumer. HR 2749 fails to include an exemption for “identity-preserved” products that specify the identity and location of the farm all the way to the consumer.

These farmers should get the same exemptions that have been provided to grains, oilseeds, hay, honey, sugar, cocoa, and other segments of agriculture that have been recognized in the bill because of their political clout.