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Food Safety Hits the Fan: Regulatory Action, Inaction and Over-reaction and the Effects on Small Scale Growers

Food contamination happens! Just look at the headlines, periodically full of government alerts and industry recalls concerning everything from toxic tomatoes to pathogenic peanut butter and sullied spinach. But most cases never make it to the public’s awareness. For home gardeners and farmers alike there’s no doubt that paying close attention to food safety from soil to stomach are just plain good agricultural practices. How “good agricultural practices” are defined, codified and mandated in the food production world are another story, however.

Producing pathogen-free food for our family, friends and customers is always a top concern and the process requires constant vigilance. Beyond safeguarding our own growing and handling procedures, a major problem is that no field, greenhouse, garden, packing shed or processing kitchen is an island – even the most secure operations are open to outside vectors and as the scale of the enterprise increases, the problems multiply. And even though organic standards have many extra food safety standards for certified growers to comply with – including audit trails, no fresh manure use on crops, strict composting parameters and requirements for regularly testing the farm’s water supplies – organic growing per se is clearly not immune to food contamination problems.

Outbreak du jour

As eaters we all have a vested interested in the safety of our daily food supply. For years this aspect was largely a case of out of sight – out of mind. Americans have long been soothed by self-serving industry assurances that the U.S. commercial food system is the best in the world. That attitude generally held until nationwide outbreaks of food poisonings from salmonella, E. coli O157:H7, campylobacter, hepatitis A, cyclospora, listeria, etc. could no longer be ignored. And the fact is most cases never make it to public awareness. Current agency estimates are that food-borne illnesses sicken as many as 76 million people each year, resulting in more than 325,000 hospitalizations and 5,000 deaths. Yet officials acknowledge that these guesstimates are very much on the low side.

Today’s largest infectious outbreaks have mostly to do with toxic strains of E. coli and salmonella bacteria. Both contaminate food through contact with feces and can be transferred to produce by such diverse vectors as animals, birds, humans, wind and water. But there’s no obvious way to discern if the groceries are safe – many contaminated foods look, smell and taste normal.

For years toxins transmitted from contaminated carcasses into the ground beef supply were the prime culprit. Food safety researchers discovered that when otherwise healthy cattle are placed on a grain finishing diet in feedlots they regularly shed a dangerous virulent strain of E.coli bacteria (0157:H7) in their manure that can make people extremely ill for five to ten days. Cattle fed a diet of distillers grains, a by-product of the corn ethanol industry, have even higher counts. The bacterium causes severe stomach cramps and bloody diarrhea – potentially destroying red blood cells and possibly leading to acute kidney failure and even death in some whose immune systems are underdeveloped (infants and children) or compromised (the ill and the elderly.)

Although salmonella contamination was once mostly a commercial problem in chickens and eggs (infecting the chicken’s ovaries) it is now loose in the general food system as well. Headlines in summer 2008 sensationalized the trace back efforts that initially pinned the outbreak on tomatoes then to serrano peppers and finally jalapenos – causing major losses for tomato farmers and food companies alike in an epidemic which left 1442 sickened, 286 hospitalized and 2 dead. Salmonella’s nasty gastrointestinal symptoms include a week long bout with fever, abdominal cramps and debilitating diarrhea that can hospitalize those with impaired immune systems and if the infection spreads from the intestine to the bloodstream, can lead to death.

Here in Winter, 2009 the outbreak du jour is salmonella in processed peanut butter paste -- again implicating the centralized industrial food production model as a major cause of far ranging contamination. Traced back to a single processing plant in Georgia, investigator’s efforts have led to the recall of over 180 products in everything from baked goods to snack crackers and protein bars. This outbreak, in what experts consider a normally safe food, sickened more than 500 people in 43 states and led to eight deaths. This time the investigation stopped short of the farmers, however, because the raw peanuts were roasted before processing – killing any bacteria that might be present to that point.

And while the Georgia plant did not sell directly to stores, they supplied a wide range of big food makers like Kellogg and General Mills; numerous smaller manufacturers including Jenny Craig diet foods; and a considerable number of institutions including schools and nursing homes that serve the most vulnerable populations. The FDA investigation led to a recall of over 1300 peanutty products -- snacks, cookies, candy, crackers, cereal, energy bars, ice cream, frozen pad Thai and even dog biscuits – all under different brand names and most with no parent corporation identification on the label. FDA has been severely hampered by repeated cuts in funding and staff since the deregulation glory days of the Reagan Administration. Domestically, in 2008 they managed to inspect 5,930 food production plants – out of a total 65,520 facilities around the country.


It can take months for the FDA or the Centers for Disease Control and Prevention (CDC) to recognize the occurrence, identify the pathogen, trace it back to its source and issue public alerts. In this case, the peanut outbreak began in August, 2008 and it took until early January, 2009 when DNA fingerprinting identified a specific strain, Salmonella Typhimurium, linking the contamination to the Georgia plant. The company didn’t recall all of its products until the end of January, however. And it wasn’t until the FDA investigators gained access to the Peanut Corporation of America’s proprietary records that they found the company had knowingly shipped out infected peanut butter and paste 12 times in the past 2 years, even after their own internal testing revealed salmonella contamination. Yet there are no federal or state requirements for companies to disclose their test results to health officials or regulators.

Another major food safety problem is the scandalous lack of genuine regulatory oversight over the giant growers, packers, shippers and other handlers who present the greatest risk to the greatest number of eaters on a daily basis. At least 12 federal agencies currently regulate food safety. Even the biggest bureaus – FDA, USDA, EPA and CDC – are each only given pieces of the oversight purview, effectively tying their hands behind their backs and, by design, putting industry in the driver’s seat.

And while regulators have the authority to broadcast alerts and seize contaminated food products, they don’t have the power to issue recalls and have to rely on the user companies up and down the food chain to willingly do so. Even when companies are cooperative this can be a lengthy and fiendishly complex endeavor as food manufacturers routinely source ingredients from the cheapest available sources, worldwide. Witness the government’s months of effort in 2007, tracing the deaths of thousands of dogs and cats in the U.S. that led to the recall of more than 5300 melamine-adulterated pet food products originating in China, for example.

There are laws on the books that give government prosecutors the ability to pursue criminal charges but due to the political clout of the big food corporations and the revolving door exchanging industry and agency personnel, there’s been little will to do so. The 1938 Federal Food Drug and Cosmetic Act empowers the Justice Department to bring legal action against manufacturers deemed responsible for food contamination and the law was strengthened by a 1975 Supreme Court ruling that held prosecutors don’t need to prove that the companies had to know that the food was contaminated. But there has been very little federal legal action in food poisoning incidents – the vast majority of court cases have been brought by injured parties in civil suits.

With the hamstringing of effective governmental protections there has emerged a tremendous demand – and market – for food safety products and services. The proliferation of stakeholders with a piece of the action in this lucrative field range from research groups, academia and state Departments of Agriculture to auditing firms, certification bodies and food safety training companies. But there’s an inherent conflict of interest that’s come with the privatization of food safety protections – the entities involved owe primary allegiance to their own bottom line – not to authentic consumer protection.

In this regard, some critics say law firms acting on behalf of consumers are driving the food industry, as they have the most power to influence food safety practices and bring about meaningful changes. But with all the pricey class action settlements they’re party to, lawyers are clearly serving their own proprietary interests. And not surprisingly the industry is finding more and more ways to shield themselves from liability exposure. Newly vulnerable to legal exposure, however, are local food systems – including Farmers Markets, roadside stands and CSAs.

Scary Spinach

Food contamination is not just the province of manufacturing plants. The nationwide E.coli O157:H7 spinach outbreak in the late summer and fall of 2006 put the risk of infected farm produce squarely in the public eye. Baby spinach is part of the pre-cut “leafy greens” trade that includes ready-to-eat salad mixes and lettuces packed in special moisture-conserving “breather” bags and plastic clamshells that extend the shelf life up to 17 days. Just shake it out of the bag, add some dressing and Voila! – it’s salad time. According to the FDA, however, contaminated produce causes 15% of all toxic food outbreaks with the highest risk commodity groups being leafy greens, tomatoes, melons, herbs and green onions in that order.

Once the sickness reports started to mount up across the country it took weeks to link the outbreak to spinach consumption and weeks more to trace the contamination back to a single 16,000 pound shipment from Natural Selection Foods, a state-of-the-art California packer holding 6% of the national market. Processing 26 million salad servings a week, they also pack for their own Earthbound Farm label – the largest organic grower and shipper in the country. This co-mingled batch happened to be conventionally grown, however, and was cleaned and packed into 6 ounce bags and distributed nationally under Dole and several other brands. By the time this comparatively swift outbreak was over the toxic greens had left 205 confirmed illnesses in 26 states with 103 hospitalizations and 3 deaths in its wake.

Once again fingers were pointed at the market concentration of large-scale industrialized growers and handlers where a single contamination event can affect thousands of eaters all over the country. Designed for a burgeoning consumer convenience market, leafy greens have grabbed fully two-thirds of the nation’s fresh-cut vegetable sales over the past decade. Bagged spinach sales alone constitute a $200 million annual market. But this new product category is fraught with intrinsic drawbacks that can exacerbate food safety troubles.

For starters, the myriad cut surfaces in a bag of leafy greens are potential infection points. Bacteria can hide in craggy leaf textures and consolidating thousands of pounds of greens from several farms en masse into one wash can spread the pathogens throughout the whole batch. While the greens are treated with a series of chlorine and citrus rinses at the packing facility – a procedure which usually destroys common bacteria – the E coli super-strain 0157 H:7 seemed to survive unscathed. Since the greens are intended for raw consumption they lack a further cooking stage that more definitively destroys pathogens – as in ground beef, for example, or broccoli. And while designed to significantly extend the life of the product in the truck, the supermarket and the home refrigerator – the plastic bags and clamshells can act as mini greenhouses to incubate and greatly multiply any disease organisms present.

In a pattern similar to the 2008 salmonella scare in tomatoes, the media coverage and public alarm about the spinach contamination event had a devastating economic impact on leafy greens growers all across the country. Even though the outbreak was traced to a single field in California, in the public eye all greens were tainted and even small scale growers at Farmers Markets far from the outbreak’s epicenter suffered big slumps in sales. Meanwhile, product liability lawsuits were gathering at Natural Selection’s door.

Although to this day there still are no definitive answers as to how the spinach field became contaminated by the virulent E coli, government investigators determined the likeliest source was a cattle ranch a short distance away. The pathogenic manure could have been carried by dust in the wind, storm runoff into irrigation systems or even feral pigs who ate the cow feces and deposited it in the spinach fields via their own manure. However, there’s very little science to definitively back up any of these transmission theories. And there’s even less science to justify the industry reaction that followed.

“Voluntary” standards

Dealing in perishable merchandise, the fresh produce business is particularly vulnerable to market disturbances. Experience has proved that public health warnings and national recalls are really bad for the industry’s bottom line. So are class action lawsuits. As the din of negative publicity and recalls took its toll, supermarket shoppers hurried by the bagged greens display for something they deemed more healthful. It wasn’t long before the west coast spinach industry was losing a million dollars a day and growers were plowing down their fields of greens.

Responding with unprecedented action, 60 packers representing 99% of California’s bagged greens industry convened to deal with the crisis. Smaller stakeholders were not invited, however, and had no say in the initial proceedings. Within a few months the handlers hammered out a 50 page set of rigid regulations – that were aimed squarely at farm practices, not their own. Called the California Leafy Green Marketing Agreement (LGMA), the rules spelled out the “Good Agricultural Practices” or GAPs farmers have to comply with in order to do business.

For handlers, (the category includes packers, processors, manufacturers, shippers and supermarkets) marketing agreements also serve several key defensive functions – not the least of which is protection from lawsuits. By requiring farmers to undergo third party verified farm audits and inspections to meet their strict market standards, the handler’s liability is substantially reduced via a “reasonable care” defense in the courtroom. There are also significant reductions in insurance costs. And, at the heart of the action, after $100 million in industry losses the P.R. campaign accompanying the tough regs was designed to reinstate the healthy image of leafy greens for consumers and get the industry back on track.

Although most marketing agreements are “voluntary’” – they are in fact compulsory when the farmers have no choice but to deal with the handlers to stay in business. Third party audits are also becoming a de facto requirement for farmers all around the country who want to supply everything from local school lunch programs to area supermarkets. For smaller-scale farmers looking on, it isn’t far-fetched to worry about industry insiders using a safe food pretext to ramp things up into a self serving, one-size-fits-all, national marketing order – which requires mandatory compliance from everybody in the trade. Meanwhile, there’s a danger that specialty crop groups in other sections of the country are looking to forge marketing agreements in conjunction with their state departments of agriculture in order to gain market share.

Nuke and destroy

From an ecological perspective, let alone an organic farming one, the GAPS matrix outlined in the handler’s 2007 Marketing Agreement was an environmental disaster. Under the name of assuring food safety, the regs literally took a scorched earth, sterilization approach to farming: burning and bulldozing grassy buffer areas down to bare ground; removing hedgerows and windbreaks; channeling and re-routing streams; poisoning wildlife; fumigating soil organisms and constructing huge fences as well as draining ponds, filling in wetlands and removing vegetation to destroy animal, bird and amphibian habitat. Often this meant ripping out conservation enhancements and wild habitat put in place over many decades by state and USDA programs to protect water quality and wildlife. To start, the initial LGMA directive directly impacted 140,000 acres.

For smaller scale farmers the handler’s food safety regs were plainly ruinous. The GAPs matrix was far from being scale neutral. Instead of targeting fresh-cut leafy greens -- all greens (including smaller scale specialty crops like kale, collards, beet greens and Swiss chard) were covered. Requirements for 30 foot non-vegetative buffers between crops and streams or wildlife habitat took relatively larger bites out of small field holdings. Fencing to keep out proven low-risk 0157 animal vectors such as deer and rodents were exorbitantly expensive. Water testing schedules did not accommodate multi-crop operations. And, for smaller operations without support staff, the heavy burden of paperwork, documentation and audit costs were overwhelming.

Essentially, long-proven biodiversity practices are the gold standard for protection from pathogens, pests and pollutants for organic farmers especially. The USDA’s National Organic Program requires certified farmers to maintain and enhance the farmscape -- from soil and water to woodland, wetlands and wildlife. As opposed to the conventional pesticide-reliant monoculture system, for example, build-ups of pests, weeds and diseases in the field are controlled to a large degree by annual rotations to other plant families and intermittent sod crops. Grassy strips, hedgerows and windbreaks serve as filters for pollutants and barriers to pathogen encroachment via dust and downpours. And the LGMA’s “good agricultural practices” did not begin to address the dangerous use of toxic pesticides, chemical fertilizers and soil fumigants that are standard practices for the large producers, but not allowed under the organic regs.

California groups such as the Wild Farm Alliance and the Community Alliance with Family Farmers (CAFF) led an outraged public response with publicity, research briefings, teach ins and political pressure on public officials. As wildlife buffers and conservation infrastructure were being dismantled in the Salinas Valley and other agribusiness strongholds, sustainable and local agriculture advocates mounted a public campaign to explain the issues. As a result, the LGMA was somewhat modified – reducing buffers and lessening impacts on wildlife habitat.

But the industry did not sit still. Fearing losses to the west coast competition, Arizona handlers developed their own marketing agreement. Soon, the biggest industry players in California responded, upping the ante. With the aim of gaining a greater market share and recouping their losses from the spinach scare they escalated their initial LGMA regulatory requirements into super strict “supermetrics.” And once big liability-adverse buyers like McDonalds and Walmart signed on, the stringent provisions became a new part of business as usual for growers.

Despite the lack of sound scientific rationale, farm fields now had to have 450 foot bare earth buffer zones to streams, for example, and 200 foot zones next to grazing lands. The ubiquitous toads and rodents that inhabit farm fields became newly targeted enemies, as much as for their capacity to foul the giant harvester machines as for any (scientifically unverified) food safety parameters. And to assure compliance on the ground, the auditors were solely trained to strictly interpret the farm sanitization regs without any certification in agricultural natural resource protections.

The gaps in GAPs

The concept of using a good agricultural practices approach to food safety has been around for years. Here in the east, GAPs work was done in the early 1990’s at Cornell University as part of a regional extension initiative. The project took a commonsense non-regulatory, non-verification approach to farm food safety practices based on good sanitation practices and worker training. An updated manual, “Food Safety Begins on the Farm – A Grower’s Guide” is currently available, with many other useful grower’s materials, on their website at, featuring valuable user-friendly information on reducing risk in everything from worker hygiene and storage facility sanitation to manure management.

Farmers, however, are now faced with a baffling array of GAPs programs. As is their wont, USDA took the basic Cornell material but ramped it up into a regulatory check list and certification program -- while still calling it GAPs. In 1998 FDA also developed a program, officially titled the “Food and Drug Administration’s Guide to Minimize Microbial Food Safety Hazards for Fresh Fruits and Vegetables” but known as the GAPs Guide, for short. And they’re currently in the process of conducting hearings and taking comments to renew and revise those guidelines. State agriculture departments have gotten into the act by creating their own GAPs programs, conducting audits under USDA accreditation. Finally, third party verification programs are allowed in most states, all certifying to some form of GAPs parameters.

All of the GAPs programs are voluntary at this point – from a legal point of view anyway. But to protect themselves from liability exposure, more and more wholesalers and buyers are requiring some form of GAP certification from their growers. Come traceback time they can point to the due diligence of having a farmer’s certificate on file in the office.

GAPs certification comes at a price and widespread adoption would present significant barriers for diversified small-scale and organic growers looking to supply school lunch programs, their local University, supermarkets or larger wholesale produce markets, for example. The cheapest GAPs audit available to farmers in New York State is through the Department of Agriculture and Markets at $93 an hour but the fee also includes travel time to and from the farm, plus the expenses of an additional surprise inspection. NYS was able to secure a Specialty Crops Grant from a new program written into the 2008 Farm Bill that compensates farmers for up to $750 in audit expenses, however, with enough funding to cover 200 certifications in 2009 and these monies are currently available to other states who apply.

While the NYS GAPs program lets the grower develop their own customized farm plan that is then inspected under a USDA-accredited audit, the Maine Department of Agriculture takes a more stark FDA-style approach. A “farm assessment” section uses a yes/no scoring system that automatically deducts points for produce farms that keep livestock – or if there are other livestock farms within two miles of the farmstead. Further points are deducted for bringing manure or manure-based compost onto the farm and for the field presence of wild animals, something almost impossible to comply with.

Due to their extensive biodiverse whole farm practices, however, organic farms could easily not qualify under the Maine GAPs matrix and would be prohibited from dealing with federal school lunch programs and wholesale entities. The Maine Organic Farmers and Gardeners Association (MOFGA) has responded to this predicament by creating their own third-party food safety training and verification program based on another FDA food safety matrix called Hazard Analysis and Critical Control Points or HACCP (pronounced Hass-Up) that has been accepted by Maine’s agriculture department.

GAPs has become a policy priority for the NOFAs as well. The “leafy greens issue” rose to the top of the list at the 2007 NOFA Interstate Council retreat and was accentuated for 2008-2009. An east coast Leafy Greens Working Group has been created with a membership that includes the NOFAs, MOFGA and FOG (Florida Organic Growers) along with involvement from the National Organic Coalition, the National Sustainable Agriculture Coalition, Food and Water Watch and the Center for Food Safety, among others.

The Working Group is in the process of developing approaches that can utilize GAPs compliance to create a crosswalk to provisions already present in the certified farmers’ Organic Farm Plan. Members are responding to the FDA GAP Guide rulemaking in attempt to keep the program voluntary and responsive to small-scale growers. There’s also an effort to identify researchers to look at the science and develop protocols to better serve organic farmers. And there’s an opportunity for the NOFAs to provide basic food safety training for their farmers under a HACCP-style protocol – if as in Maine, so goes the nation – and a GAPs alternative becomes necessary. But for small farmers at this point everything is in flux.

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