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Baja Grower ‘Held Hostage’ ToFDA’s ‘Ban’ On Mexican Peppers

Jim Prevor’s Perishable Pundit, August 19, 2008

In the course of our extensive coverage of the Salmonella Saintpaul outbreak, we have on several occasions called for the FDA to limit its de facto market blocks to areas actually implicated in a problem. For example, we ran a piece, Free Baja, calling on the FDA to provide access for Baja tomatoes as it had for northern Florida crops. Then we ran a piece entitled, Free Baja Take II, which made the same point about chili pepper production in Baja.

Since the U.S. crop was cleared, the whole issue seems to have been dropped. No more FDA press conferences, no more trade association conference calls, the Pundit was getting calls every day to be on TV — one night CNN’s Lou Dobbs, next night with Fox Business’ Stuart Varney, etc. — now the calls don’t come.

Although Mexican jalapeno and Serrano peppers are still effectively banned from the U.S. market, some might think that the crisis is over.

Of course, the crisis is not over if you happen to be a U.S. grower who has built an operation in Mexico dedicated to supplying fresh chili peppers to the U.S. market. Then it is worse than ever. You find yourself in the midst of the crisis, but, almost surrealistically, you feel as if you are the only one who knows it. Even the Mexican government is absent without leave on the issue, seemingly unwilling to risk a confrontation with the U.S. over this small item.

So how does a grower perceive the world in this scenario? We asked Pundit Investigator and Special Projects Editor Mira Slott to find out:

Doug Hermance Doug Hermance
Owner
Pea King Produce
Santa Maria, California

Q: How have you been holding up since your heart-wrenching letter?

A: I’ve been doing business in Mexico 10 years. My take is personal. After the Perishable Pundit published my story, people have been coming to me saying, ‘this is wrong, this is a travesty.’ Condemning all of Mexico is just not fair.

Q: Have you made any progress in getting your company’s product cleared?

A: I’ve been trying to get more information from people but no one will return my calls or e-mails; I’m really frustrated and don’t have much more time or money to invest as I need to prepare for my upcoming pea programs.

I’ve talked to many people and helped many others, but the only correspondence I receive is when one of them needs more information. I give it to them, and then they say they are working on a solution, and will get back to me; then nothing. I’ve been waiting for 4 weeks now!

In my opinion, the monetary element is going to keep Mexico in this “holding pattern” until there are no other options but to return to Mexico production or go without product; which will happen in November or December. Therefore, I anticipate some type of action in late September or early October; this will give the buyers ample time to “renew” their relationships with the Mexican producers and the U.S. stores time to “reassure” the consumers the product will be clean.

There are many powerful people making money due to this situation, and the chili pepper industry doesn’t have lobbying power and/or money, especially in Mexico. We are “conditioned” to this type of governmental bureaucracy in Mexico. This time it is just coming from a new source, the U.S.

I am now living in Mexico, so this is my first experience with something of this nature, but I now understand what the growers have been telling me all along. “You can’t win without money and connections; and we have neither in this particular instance.” The U.S. companies and growers are satisfied and the Mexican government and growers will just accept the fate and move on.

Left to Right: Artura Silva, a snap pea and green bean grower, Doug Hermance and Elias Berry, a chili pepper grower.

Gaston Sepulveda
Baja Chili Grower

Q: Even though FDA’s investigation and actions are predicated on food safety, are you saying the process and ultimate resolution is more about politics and business advantage? It is one thing to analyze missteps or incompetence in a well-meaning investigation process, but what you describe is quite cynical and disconcerting…

A: At first, when FDA told consumers not to eat any jalapenos regardless of where they were grown, everybody was communicating. Basically the whole industry shut down and there was a sense of urgency to band together. Western Growers Association (WGA), the big produce companies…That Friday July 25, the FDA press release went out declaring all U.S. areas cleared, and all Mexico suspect, and everything changed.

Even though I’m so close to the border, everyone in the U.S. got what they wanted but I was abandoned. All the people barking got their way. The U.S. started doing sales, chain stores and restaurants got product.

Our customers said, ‘We feel bad for you, but when things get clear we’ll take your product again.’ The guys I supply said they had no choice. Initially, U.S. chain stores demanded growers with certification. A lot of jalapeno growers don’t have certification. Now buyers say they’ll make an exception. Now stores are getting a lot of product that isn’t certified. As long as it is U.S.-grown, that’s all they’re asking for because there just isn’t enough supply.

Q: Are these certifications based on third-party audits from companies such as Primus Labs, verifying food safety standards set by U.S. buyers?

A: I grow snow and snap peas for companies such as Fresh Express, Apio, Mann Packing and MCL Fresh that require the highest food safety standards. I know food safety and what standards these companies will accept and deny. For peppers, we’re trying to do the same programs as companies in Salinas because that is what our clients demand.

My main two customers for chilis are Cal Fresco and Melissa’s/World Variety, both located in Los Angeles and both have very solid food safety programs as well. They service some of the very large chain stores throughout the US.

Now FDA says all Mexico is bad; that shuts me down, even though I am a good supplier. Even if my product is allowed to enter the U.S., no one is going to buy it. Consumers are going to listen to CNN; they won’t buy Mexican product no matter what. And stores have liability.

Q: Ironically, FDA’s blanket ban across Mexico could actually result in less safe product being sold to consumers.

A: U.S. companies are happy, retailers are happy because they’re getting product. Now the market is moving. People are making money and not saying anything. The Mexican government is infuriated because no one in the U.S. wants to help any more.

From their perspective, the FDA released all this incriminating information without talking to Mexican authorities. The timing of that release at 6:00 PM Eastern Standard Time allowed no time on a Friday to get a response there until Monday, but by that time the damage was already done. Mexico is saying, first you destroy our country’s tomato industry and now you do the same thing with chilies.

Q: In press briefings, FDA and CDC told reporters the two governments were working harmoniously to get to the source, but this belies what’s happening behind the scenes. Mexican authorities point to major discrepancies in FDA’s findings.

A: In a juvenile kind of way — like two little kids fighting — the Mexican government’s feelings are hurt and they have no confidence in the U.S. government sharing information. Now they go into their shell in an effort to do damage control and limit access, but closing off communication just makes matters worse, further distancing growers, and slowing down the process of resolution.

Like ‘he said, she said,’ FDA announces dramatically for the first time in a congressional hearing the positive sample was from irrigation water; a Mexican official holds a spontaneous press briefing in Mexico City claiming it was from a stagnant tank filled with rainwater that hadn’t been used for irrigation for two or three months. This dialogue should have been done before the information was released.

Q: How does one mend this fractured communication?

A: The reality is that if tomatoes were at issue, there’d be a lobby group down here. With jalapenos, there is no voice. Now there is no advocating force to compel action; people won’t return a call. The Mexican government won’t give any more information — they feel FDA is going to report what they’re going to report. That’s what people I’m talking to lament. There’s a sense of hopelessness.

Q: What steps have you taken to get answers?

A: I contacted FDA with an e-mail, their response — talk to my State Department of Health. That didn’t get me anywhere. WGA told me to talk to Fresh Produce Association of the Americas because I kept asking questions. I contacted FPAA and they told me they don’t represent areas or specific crops.

Their response was they only help members so I would need to join. Obviously, I didn’t agree with their approach. For me that’s another money deal. WGA asked me for more information on chili production and I believe any inquiry is worth a response.

[Editor’s note: According to Allison Moore, Communications Director for the Fresh Produce Association of the Americas, “We have a lot of members that import peppers, and right now we are compiling data from each state to build a case so that FDA can start exempting states and narrow the problem to specific regions, just as we did with tomatoes. In that regard, our work benefits everyone, whether members or not. We also have been working with individual members since the U.S. first started increasing the sampling of chili peppers, like what was done with tomatoes. FDA hadn’t issued the countrywide alert but the requirements changed. If the companies were facing complications in the sampling and lab procedures or in getting test results back, we helped individual companies to navigate the whole process.

“Obviously our resources are going to be focused on the industry as a whole, as well as individual members. I have 120 different bosses because we have 120 members; they’re ultimately paying my salary and I need to focus on helping them — to get the pepper alert as specific as possible and to help individuals any way I can. If there are members paying me to work for them, it would be difficult to divert our limited resources to people not paying into the association. Our members are paying to help everybody; these companies are committed to the industry, the same as members in other trade organizations, which helps everyone whether a member or not.

“FDA wants to be able to release regions and that’s what we’re trying to move toward now, especially as new regions come into production for the fall season. We’re still very much in the middle of what’s happening now, and so is the Texas Produce Association. PMA, United and other industry groups are still really involved but our vantage point is a lot closer. We’re on the ground and on the front lines. I haven’t heard of any major things that are going to happen, but I wait for the next surprise, hopefully it will be a good one.”]

Q: What information did you provide?

A: Chili production schedules:

November — May: Southern Baja (La Paz, Constitcion, Vizcaino) — port of entry through Tijuana/Otay Mesa.

November — May: Middle Mexico — Guanajauto, Vera Cruz are first to start; then the progression works Northward; Sinaloa, Chihauhau, Nuevo Leon, Tamaulipas & Sonora. Port of entry on most of this product is Texas and Nogales.

May and June are transition months. The Mexican States of Chihauhau, Nuevo Leon, Tamaulipas and Sonora have the ability to be producing during this time frame. Southern Baja can also be in production during this time frame. Market and plant quality will dictate if the product will be sold for export markets in the U.S. or sold in the Mexican markets and processors.

June — October: Northern Baja (San Vincent, Santo Tomas, Ojos Negros) — port of entry through Tijuana. California, Georgia, North Carolina, Florida, Michigan all have their programs during this time frame.

I explained to WGA that just as in the U.S., all the growing areas have contacts and the ability to sell and distribute product to all shipping areas during the entire year. There are times when you will see product from middle Mexico in the Tijuana markets, which I’m sure could end up crossing into the U.S. We keep coming back to traceability and accountability!

Q: Would this information facilitate clearing jalapeno growers in Baja and other parts of Mexico?

A: Everyone has been scrambling to find the source and end the problem, and in reality they don’t know what’s going on, but for now everyone in the U.S. is content, stores are getting product, companies are getting their money. Everyone is doing the wrong thing by shutting up and not communicating; it’s the opposite of what should be happening. .

Before, everyone would talk in Mexico; now no one feels comfortable. And no one’s acting aggressively to solve the problem. Eighty percent of chain stores won’t take my product. I can send it over the border, but no one will take it.

Q: Are customers working with you to plan for future shipments in hopes of a resolution down the line?

A: I did receive a call from one of my larger customers, asking if I was going to plant chilis for the winter season in Middle Mexico; the response was absolutely NO! The customer has people working on trying to get Mexico cleared as well, because they need the Mexican suppliers to cover their programs; or they may lose them to other suppliers.

This is why I think there will be a shift in the speed and determination in which Mexican clearance is actually pursued, again, my thinking is late September or early October, so four to six more weeks for things to settle. Still no response from ANY agency, Mexico or U.S., on my questions and concerns.

In November and December, Mexico is the big supplier to peppers in the U.S. The companies in the U.S. are dependent on these growers. If I’m going to have product in the middle of Mexico, how good is that? Better for me that I don’t plant, or I find another country or outlet for my product.

I’m running up against walls. I thought once California was cleared, they’d isolate further and my region would be cleared. It shouldn’t be one bad apple spoils the bunch — find one area, narrow it down but don’t ban an entire country. For people who don’t care now that the problem is being isolated to Mexico, remember that next time it could be another big commodity in question and entire states shut down. Next time it could be your crop and livelihood.

This is going to continue to happen. Mexico needs the U.S. but the U.S. needs Mexico to share growing areas and have product year round; it benefits everyone to share food safety methods. The problem has been isolated to a few hours south of Texas, one ranch with a Serrano pepper and the single jalapeno pepper in Texas from another area in middle Mexico.

Q: How does your business stand at this juncture?

A: I’m at the point now weeks later where I’ve had to start discussing fields, plowing crops under. We don’t have a choice. Unable to sell in the U.S., the cost to pick is more than I can get in national markets. Mexico is full, no one wants this stuff. My plan was to pick the crop and take care of the fields, biding time. Every week I do samples to show I have clean water and safe practices, waiting for the magic release — Baja is cleared.

WGA did their job, they got their members cleared, produce companies in Los Angeles are back in store, but hey, I’m a part of your team; they say we feel for you, it’s a tough break… they don’t get it. Obviously, I’m furious but it’s going to continue to happen to other commodities unless someone gets this changed.

Pea King’s chili pepper field. This photo was taken in June, but the company has since had to abandon much of the field.

Q: Have you contacted Mexican government officials directly?

A: The Mexican equivalent to the FDA is called SENASICA. I met with their Baja North representative/director Roberto Roche Uribe. It was a good meeting. They are a government group with direct communication lines to the FDA; I guess they recognize their organization, practices, etc.

This group works directly with growers in Mexico in the development of food safety programs, tracking of produce shipments, random sampling, very similar to the FDA. When the tomato growers had their problems, SENASICA was the agency who talked to the FDA and received clearance for Baja product. All the growers were already registered with this agency, so the process was fairly easy and fast.

Q: Was Roberto able to help you?

A: Unfortunately, we did our third-party certification with Primus, as requested by our customers; we should have done both in retrospect, as SENASICA will only speak on our behalf, after they do their own studies and audit to determine our product is safe. I fully understand and respect this decision, as I wouldn’t want to depend upon another’s work in this type of situation as well, but the process to get my ranch audited by them will take four to six weeks and it will be too late.

Roberto says he is going to head to Mexicali and speak on our behalf. To his knowledge, we are the only grower speaking out or requesting action, so he is hoping he can use the information we have and the information other agencies have to get our area cleared.

Food safety requirements have to be equal. If stores are demanding food safety, it should be the same food safety standards for everyone. I’m two hours over the border and have the highest certifications and testing, but I can’t sell because of FDA’s actions. If I could only talk to every housewife in the country and have them inquire of their retailer… has this product been tested, has this product been certified to the highest food safety standards?

The markets went from $16 to $24 on jalapenos — people are making money, better for them for things to die down now and not have the competition from Mexico.

Q: If in the U.S. there is little incentive to get Mexican product cleared, the fight has to come from Mexico and produce industry leaders who understand the broader consequences of allowing this kind of practice at FDA to continue…

A: What Mexico should be doing is standing on every box of jalapenos screaming at the top of their lungs that this is unjust and tell FDA why, but they shut doors and haven’t said anything; if they know something about a potential problem they should say something. The U.S. doesn’t have very many choices now. You can hear the frustration in my voice, it’s a vicious cycle.

Q: On one hand, implementing and enforcing uniform food safety practices within and across borders should be a priority. Until then, are you saying it’s important to distinguish and reward companies that have high standards in place?

A: I wish people could understand the process to get our ranches where they are in food safety today; reinventing the wheel with food safety in other countries is a challenge. We have been spending so much time and money on food safety, and people are frustrated with us. Our workers do everything we asked them to do; and in the middle of the season, I have to let them go. There are people who don’t have work, loyal people that stayed with me. I’ve been keeping them on as long as I can. They have no options, but I have to shut down. I can’t afford it any more, I’m losing too much money. If I don’t shut down, I’ll jeopardize my entire company. When bad things happen you have to learn from them, but in this instance, I haven’t learned much; it’s just chaotic, no one is responsible, but at the end of the day the farmer is the one who suffers the most. It’s a tragedy.

At the Perishable Pundit, you’ve been the only one putting out the voice of growers. If you didn’t run my letter, no one would even know of my situation. After it ran people were calling, saying this is wrong. They cleared the entire U.S. Now weeks have gone by and nothing has been done out here to help Mexican growers.

Q: Now that you have a forum to speak to the industry again, what message would you like to leave with our readers?

A: Having operations on the U.S. and Mexican side, I see both perspectives. I pay a lot of rent in California. Food safety differs from country to country, state to state, county to county, grower to grower. Everyone should have the same food safety requirements. Speaking from the U.S. side, I agree with that. If I do have the same criteria in Mexico as in the U.S. and am audited to that effect, I should be able to enter the U.S. Everyone should be looked at as an individual. The group mentality leads to discriminating against everyone in Mexico, or everyone with jalapenos, depending on the FDA’s whims on what they release when.

Obviously product should be labeled with the country of origin, but also certification documentation, and if you’re a chain store gold star supplier it should say that. If I have everything in place, I shouldn’t be penalized for a problem 1,500 miles way. It takes 24 hours in a car to get over there. If you had a tainted head of lettuce grown in southern Texas, would you shut down southern California? That’s the equivalent of what’s happening to me.

There are at least three terrible things that have grown out of the Salmonella Saintpaul outbreak:

The first is the clear politicization of the FDA. Its decisions have consistently been prompted by who screams the loudest. We saw this in the order in which states, countries and localities were added to the “safe” list by FDA. Equally, the northern tomato counties in Florida that were exempted were just a step across the county line from the counties that were — and remain — implicated by the FDA. Looking at this, the slow release of Baja tomatoes — fully 1,500 miles from the area implicated — is best understood by Baja’s lack of representation in the U.S. Congress.

Tomatoes, though, were an important enough industry to get the highest levels of the Mexican government involved in pushing for a solution. We were on the verge of escalating to a Presidential level when the FDA relented — another political decision.

Alas for Doug Hermance, the President of Mexico doesn’t see the need to get involved on such a small item, and Baja doesn’t have effective representation in DC, so the FDA feels no pressure.

Although we decry the politicization of public health, FDA has brought it on itself because of the unreasonableness of its policies. Mexico is a giant country. Saying one knows a pathogen is in Mexico is not much more meaningful than saying it could be anywhere. For the FDA to maintain bans for weeks and months against an entire country on such flimsy evidence as we have indicates a kind of lackadaisical attitude toward their work.

A lot of things can be justified temporarily on the basis of public health. That doesn’t remove the responsibility of the FDA to move expeditiously to identify the exact problem. If the FDA cannot do that, it has no right to hold innocent people perpetually hostage to its limitations.

As it happens in this case, the farms in Baja are, again, 1,500 miles from the places where some Saintpaul Salmonella was supposedly found. Restricting Baja production and bankrupting this American farmer simply serves no public health purpose. Doug sees nefarious profit-motivated sources at work. It is not necessary to do so. It is most likely happening because the Baja growers do not have the power or money to make the Mexican government compel the FDA to pay attention to their plight.

One could say that this just proves the importance of having effective associations and that would be true. But Public Health policies are not supposed to be influenced by one’s wallet or advocate. The irrational restriction against Baja chili pepper stands as a horrible example of a politicized FDA, inconsistently applying policies based on who throws the most weight around. It demeans FDA and the public health authorities in general and should be stopped.

The second terrible thing that arose out of the Salmonella Saintpaul investigation was the treatment of all farms the same — regardless of food safety status. This sends a clear message that investing in food safety is a waste of time and money. It will hinder the advancement of food safety for years to come.

Especially in Mexico, where you have bifurcated food safety system with one set of growers producing mostly for export, operating at a high level, and another set of growers with few standards at all — what an incredibly powerful message would have been sent had FDA allowed shipment of all product produced from audited farms. It would have sent a clear message that food safety is an investment that pays.

Instead it comes out as an expense that should be avoided if possible. What a lost opportunity.

The third terrible thing that came out of the Salmonella Saintpaul outbreak is that FDA approaches each outbreak with such blinders that it only cares about the particular food safety outbreak it is focusing on and thus regularly takes actions that increase, rather than decrease, food safety risks for consumers.

This was the story of our first Free Baja. Big buyers, very conscious on food safety — Darden, Tesco, etc. — select individual producers to work with and they work together, transparently, to improve food safety. On an item on FDA’s high-risk list, a company such as Darden will have someone in the fields every single day

For liability and public relations reasons, these companies cannot go against an FDA recommendation. So when the FDA de facto bans an entire region, what it does is force these food-safety-conscious buyers to move from carefully vetted farms to those they may not know at all. It is hard to imagine this increasing food safety.

In the case of jalapenos and Serrano peppers, Doug Hermance is making a variant on this argument. He is an audited producer of jalapenos and Serrano peppers in Baja. Now American consumers, due to FDA action, don’t have his audited product, so they may wind up, instead,with unaudited product from producers in the U.S. or elsewhere. The CDC says that there are 1.4 million cases of Salmonella in the U.S. each year and 76 million cases of foodborne illness.

Even if in some way this ban reduced the risk of Americans getting sick from this particular outbreak, these actions increase the likelihood of another foodborne illness by removing certified product from the food supply. This is the exact same thing that happened with the Honduran Cantaloupe situation, in which a gold-standard farm was banned and countless unaudited producers allowed to keep shipping.

We defend Public Health but Public Health is supposed to increase the health of the public — these actions damage it.

We thank Doug Hermance for speaking so freely. It is terrible what is happening to him. We ask the FDA to look at the actual consequences of its actions and either articulate a basis by which this farm’s bankruptcy serves the interest of Public Health or free his production by freeing Baja or at least freeing all third-party-audited product in Baja.

We don’t know if they will buy or not buy, but the point is that this Salmonella Saintpaul outbreak is only one facet of food safety, if buyers think that they are better off buying from pre-vetted, audited suppliers in Baja than unaudited suppliers elsewhere, on what basis does FDA claim expertise to say they are wrong??

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