Should industry support of food legislation come down to whether or not some smaller operations are granted exemptions from some of the law’s requirements?

Small farm exemptions: What is that to you?

Tom Karst
National Editor

Certainly that is the reality of the situation.

There are no fresh produce organizations breaking rank from this position since it was revealed that a compromise on the (Jon) Tester amendment was being included in S. 510, the food safety reform legislation now expected to be debated the week after Thanksgiving.

The compromise Tester language, according to the Senate Health Committee, creates exemptions based on whether food facilities are either a “very small business” as defined by the Food and Drug Administration in rulemaking.

Or second, the exemption is given if the average annual sales for such facilities in the previous three years are less than $500,000 — so long as the majority of food was sold direct to consumers, restaurants or grocery stores in the same state or within 275 miles of the facility.

Such facilities that fall within the above descriptions would be exempt from preventive control/Hazard Analysis and Critical Control Point provisions in S. 510, but would still have to demonstrate they have identified potential hazards and are implementing preventive controls to address the hazards, or they would have to demonstrate to FDA they are in compliance with state or local food safety laws. The language also includes a “disclosure” requirement for small food facilities to provide contact information on food sold to consumers.

Relative to farms, the Tester language is similar. A limitation to these exemptions is that in the event of an active investigation of a foodborne illness outbreak that is directly linked to a facility or farm that is exempted, the exemption may be withdrawn.

There are so many caveats and nuances to this “exemption” that I wonder if it may pose more trouble than it is worth for small food facilities and farms.

While granting exemptions based on size of operations, revenue or area of distribution seems (and is) patently unscientific and straying far from a “risk-based” approach, does it really make sense for the fresh produce industry to oppose food safety legislation because of the exemption?

This is particularly true if the legislation is going to pass anyway, which seems likely.

If there are good things to be gained by food safety legislation — improved food safety oversight, bolstered consumer confidence, stepped-up grower education and compliance with good agricultural practices — why not finish the job now?

It could even be argued that leaving the Tester language in the bill will give commercial fruit and vegetable marketers a point of differentiation, a competitive advantage to be employed in the battle for hearts and minds for consumers too easily captivated by the local food movement.

If food safety legislation is something the industry really wants and needs, the Tester amendment should not be a deal breaker.

Consider the outcomes of failure. If defeated now, food safety reform legislation may not be revived again for years, and current produce industry opposition to food safety reform may well be cited the next time a foodborne illness outbreak linked to fruits and vegetables emerges.

Get on with the business of restoring public confidence. No system devised by Congress will ever be perfect, and the rulemaking process will take long enough as it is to work itself.

Voice objections but not opposition.

Small food facilities and farms may come to rue the day when the Tester language was adopted because of the hoops they must jump through for exemptions.

The industry should resist the urge to look with envy or disdain on their small farm brethren.

It reminds me of a story from the gospel of John, when one of Jesus’ disciples was concerned that another disciple was getting a better deal than he was.

“What is that to you? You must follow me,” Jesus responded.

If Congress wants smaller farms to be exempted, what is that to the commercial fresh produce marketers?

They must follow GAPs.


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