The Food "Safety" "Modernization" Bill: What's Really Driving This

December 02 2010 - 6:05 PM

Most educated consumers are concerned about the safety of their food supply…who wouldn't be?  The E. Coli scares and recalls of spinach, eggs, tomatoes, peanut butterand other products have a lot of people concerned.    At the same time that this bill has been introduced, there has been a growing movement of local producers, involving a much wider variety of cheese, milk, and produce than ever before.

A good example is the growing number of patrons of farmer's markets, especially Green City Market in Lincoln Park. Much of these people buying produce are concerned about food safety and would like to explore alternatives.   Maybe this means that suddenly consumers can switch back to their trusted brands they decided to abandon, as the increased government oversight will finally make foods safe again.

I had a recent talk with someone who lectures at the University of Wisconsin School of Agriculture, and she discussed a growing number of young people getting into farming, inspired by the desire to increase the quality of food on the table.  Many of them will want to be independent or working for small producers, working to increase the number of food products and outlets for fresh produce.

The House version of the so-called Food Safety Modernization bill will essentially require a paper trail for a farmer wanting to sell his beets and asparagus at the local market.    The Senate version, amended by Montana senator John Tester, gives some breathing room for small producers as it exempts small producers of an adjusted annual gross revenue of less than $500,000 over three years and with the majority of shipments to restaurants, grocery stores, and retailers less than 275 miles from the main facility (or in the same state), though it is not really clear if those are highway miles or as the crow flies.    Some in the grass roots food community praise the Tester amendment as a step in the right direction.  "The Senate’s acceptance of the Tester-Hagan amendment is a victory for small farmersand food producers, and the consumers who enjoy fresh, local farm produce and locallyprocessed food products, like jams and jellies,” said Gus Wahner, according to a press release by the Western Organization of Resource Councils.  

Imported foods could be affected as well, with various small artisan producers from Europe, already hard to find and exorbitantly priced, may be penalized, potentially stifling the increased demand for international products.

The House version, however, holds producers of all sizes accountable for adhering to the regulation and even requires that these entities will have to pay the government for inspections, a tax that of course will be passed on to consumers.    A five hundred dollar fee to cover inspections has to be paid on an annual basis to the government for the ability to serve food, which can be fairly substantial to a small farmer.   The Senate version has to go back to the House for ratification before the end of the current Congressional term, and though some media articles have expressed doubts that the bill will pass, it looks like there is a lot of momentum to push this legislation through.

Much of the other regulations are around rather nebulous wording, such as "identify and implement preventative controls" and "monitor the performance of these controls" as well as "maintain records of such monitoring", ostensibly for traceability in the event of a food outbreak.  Opponents stress that state and local regulations handle much of today's enforcement for what is about to become a federal responsibility.    

  Supporters of the bill continually mention the need for consumers to feel safe.   Personal injury lawyers, the Produce Marketing Association, United Fresh Produce Association, the U. S. Chamber of Commerce, and the Consumer Federation of America have supported the House bill.  The Produce Marketing Association and United Fresh Produce Association, though, have withdrawn their support after the Tester-Hagan amendment was included in the Senate bill. According to a Kathy Means, the Vice President of Government Regulations and Community Affairs for the Produce Marketing Association in a YouTube interview on their website, this amendment "leaves holes in the food safety net…it will not build consumer confidence, which we need..buyers are going to look for folks who are covered by these regulations." She goes on to say that "we would like to see national safety reform that is based on risk and sound science".

The Center for Disease Control reported that last year there were 325,000 cases of illness and 5000 deaths due to food borne illnesses, though it wasn't really clear what types of illnesses these were and to what causes they were linked.  Ironically the most publicized incidents have led to relatively few deaths, partly due to swift action but also because of media scares and careless industrial-scale agricultural and food processing practices.     

These sorts of exceptions typically harbor a number of unintended consequences that may place a number of burdens on small producers.  Case in point: Sarbanes-Oxley, a law designed to provide audit oversight over executives embezzling money in publicly-traded corporations, led to a lot of corporate red tape due to a "top down risk assessment" that in 2004 wound up costing publicly-traded companies of less than $100 million dollars in annual revenue , on average, 2.5 percent of revenue according to the Securities and Exchange Commission.  That doesn't seem like a lot, but when you factor in that most companies operate on tight profit margins, the increased overhead can be substantial.  And these are much larger publicly-traded companies, so the impact on small farmers as a percentage of their earnings could be substantial, depending on how legislation is interpreted or enforced.

Another good example is the Hazard Analysis and Critical Control Points legislation (HACCP), passed in 1996 as a systematic and preventative way of preventing meat from winding up in the wrong hands.   Critical control points are essentially procedures or controls used to monitor foods for acceptable levels, and examples include measuring the temperature of cooked meat and performing bacterial analysis.Critics of the law contend that this act has forced smaller meat producers out of business.   The American Association of Meat Producers, an organization representing small and medium-sized meat producers, estimates that a recently introduced edict from the Department of Agriculture based on the original bill will increase validation of controls costs producers thousands of dollars.

This, therefore, raises questions around the Food Safety Modernization Bill and how the well-meaning people passing this bill may find that an entire industry could be completely shut out.   Dangerous food outbreaks should be handled with government oversight to minimize the number of illnesses and deaths, but in the process we may be unintentionally killing off a burgeoning and rapidly small industry whom many consumers have confidence by raising barriers to entry.