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Food Safety Bill Now Seems Likely To Pass With Exemption For Small Producers: FMI And NRA Refused To Join Ranks With The Produce Industry To Stop It. Final Bill Is An Attack On Wholesalers And Distributors

Jim Prevor’s Perishable Pundit, December 9, 2010

Nothing is over till it’s over but it now seems likely that the flawed food safety legislation passed by the Senate will wind up becoming law as the House included the Senate language in a continuing resolution designed to keep the government running. United issued a statement:

“United Fresh has strongly supported modernization of our food safety laws for the past four years, working with Members of Congress and the Administration, and testifying before House or Senate committees more than 10 times. There is no doubt the food safety bill passed as part of the Continuing Resolution contains a number of important provisions that we have long supported, including implementation of preventive controls for production and processing of specific fruits and vegetables when shown necessary by a risk-based, scientific analysis by FDA.

Yet, the Tester amendment inserted into the Senate bill, and now passed by the House, weakens public health protection by exempting some producers and processors based only on the size of their business, their geographic location, or to whom they sell their products. The statutory enactment of non science-based exemptions would limit FDA’s ability to assure consumers that all foods they purchase, whether at grocery stores, restaurants, farm markets, or elsewhere, have met the same food safety standards. We fear that this profound error will come back to haunt the Congress, public health agencies, consumers and even those who thought they would benefit from food safety exemptions. Food safety must be a universal commitment, shared by all who would grow, process and sell foods.

While the food safety bill will do much good, it is highly regrettable that the House leadership failed to exercise its responsibility to engage with the Senate in a conference to fix these provisions. Our industry and a large number of House members have urged repeatedly over the past week that a conference could be completed within the remaining days of this session. When it became apparent that the House would need to pass its own bill due to the constitutional problems with the Senate bill, this afforded the direct opportunity to provide due diligence to correct this mistake, and send a better bill back to the Senate, which must again pass the bill in any case.

For all of us who have worked long and hard to pass food safety reform, this is a bittersweet moment, with a job only partially done. As we look ahead, we will continue to voice our strong support for uniform, risk-based food safety standards, whether in the remaining days of this Congress, or in the new Congress convening in January.

Although we have our doubts that, even without the Tester amendment, the law would have accomplished any improvement in safety, the Tester amendment was a blatantly political attack on the principles of science-based food safety. The House was clearly remiss in its responsibility to thoughtfully debate the issue. Of course, one reason they could act so flippantly is that the allies of the produce industry dropped us like — well — a hot potato the minute the going got rough.

For example, those good friends of the produce industry, the Food Marketing Institute — which acts “in alliance with” the North American Association of Perishable Agricultural Receivers (NAPAR) — and the National Restaurant Association, with whom PMA has an initiative designed to double foodservice consumption of fresh produce — did not hesitate to unceremoniously abandon the produce trade in its hour of need when the Senate bastardized the Food Safety Bill by adopting the Tester Amendment.

As we discussed here and here, the produce industry, which had previously endorsed the food safety bill along with FMI and NRA, turned against the bill when an amendment known as the Tester Amendment — after Democratic Senator Jon Tester of Montana — was added to the bill. The amendment exempted many small producers from the food safety requirements of the bill.

The objection of the produce trade associations, which we had warned about here, was primarily that the size of the farm is not a relevant food safety characteristic. Same thing goes for the requirement that such small producers must sell more than half their production within the state they are located in or within 275 miles.

All this is true and good reason for thinking the bill not wise. After all, if you believe the bill is actually going to enhance food safety, then leaving small producers out of the loop poses enormous dangers to all producers — and the public.

Consumers won’t know if the restaurant or retailer they are eating at bought stuff from an exempt producer and, if people get sick or die from eating such “exempt” produce, it is unlikely that the FDA… or the media… will be prepared to ignore such illnesses or deaths. In all probability, we would have the same bans on nationwide sales of spinach and tomatoes that we have seen before.

The logic here is impeccable, and it would have made a real difference had FMI and NRA stood with the produce industry and said that they could no longer support the bill. Instead FMI enthusiastically endorsed the bill and NRA also weighed in for the bill. Although both issued statements, neither association even mentioned a hope that the loophole opened by the Tester Amendment would be resolved in House/Senate negotiations.

There is no upside for FMI and NRA members to have non-compliant product running around the food chain, but both are so anxious to be seen as in favor of “food safety” that they were unwilling to back up what they knew as the proper position — that if one really believes these rules will enhance safety, they have to apply to everyone.

The bill is, of course, not yet law. As we discussed here, there was a Constitutional issue with the Senate bill in that the bill included revenue-raising items that constitute taxes and such items must originate in the House. Rather than pass a new bill in the House after considering the issues surrounding the Tester Amendment, and rather than have a House/Senate conference discuss these issues, the Democratic majority, desperate to pass something quickly, dumped the Senate language, unchanged, into a continuing resolution to fund the government. With taxes taking up so much time on the Senate floor and the continuing resolution necessary to keep government running, it is very possible that the continuing resolution will pass the Senate and become law. The one hope for reconsideration would be if the Republicans find a way to reject the continuing resolution perhaps because it funds government all the way through December 30, 2011, thus depriving the new House majority the chance to cut off funding for projects the Republicans oppose.

Still, whether it is in this Congress or the next, there will ultimately be a battle for appropriations to fund the food safety bill. When that battle rolls around, there is another factor in the Tester Amendment that might induce FMI and NRA to take another look at the matter.

The Tester Amendment is basically a declaration of war against wholesalers and distributors. In order to get the exemption from the food safety requirements, it is not sufficient to just be small or to sell locally; one also must sell directly to retailers, restaurants or consumers.

Now this makes absolutely no sense. Not only is the customer irrelevant to the food safety status of the crop, major wholesalers and distributors, such as Sysco, US Foodservice and Supervalu, have extensive food safety systems of their own. There is every reason to want to encourage small growers to work with distributors.

The logic beyond this requirement is a Luddite-like belief that buying direct provides a talisman-like immunity to food safety problems.

Senator Tester likes to say things such as “Let’s face it, dangerous food-borne outbreaks don’t start with family agriculture.” Of course, there is no evidence to support such a view and a lot to dispute it. In fact, nobody knows what he is even talking about as almost the whole produce industry is “family agriculture.”

The idea seems to be that if a buyer knows where the food is coming from, risk is reduced or eliminated. But the restaurant or retailer 275 miles from the farm doesn’t necessarily know anything about his supplier. They may have never visited the farm nor spoken to the farmer. Even if they did visit once — how many small retailers and restaurants have the knowledge to evaluate a farm or processor for food safety standards?

And consumers — so a farmer sends his mother-in-law to go sit at a farmer’s market somewhere and consumers note she is a nice lady. How does this have anything to do with food safety?

In truth, if one is concerned about food safety, one would be far better off urging these restaurants and retailers to buy through a Sysco, US Foodservice or a Supervalu rather than buy direct. These large organizations — all of which are now bending over backwards to provide access for small growers — have procurement standards that the small buyer can’t imagine.

FMI and NRA have members who do business with many different models, and one would think that some of those members, given time to reflect, will urge upon the associations a position that food safety be business-model independent. So whether one buys direct or through a wholesaler or distributor, legal requirements of suppliers should be the same.

One also wonders if Representatives and Senators from urban areas won’t take offense at Senator Tester’s neglect of small distributors and wholesalers. The businesses on Hunts Point or the Boston Terminal Market and New England Produce Center markets in Boston, the new Philadelphia Wholesale Produce Market in Philadelphia, markets in Chicago and San Francisco, Los Angeles, many other cities plus many independent wholesalers — these are all family-owned businesses with more knowledge about produce than the typical retailer or restaurant, and because they deal in volume, they are more likely to actually know the producers in a meaningful way.

Why in the world should Representatives and Senators who have these wholesalers in their districts acquiesce in a judgment that dealing through wholesalers is a risk factor in food safety?

The Constitutional problem with the food safety bill has given the country a great gift — time to really study and understand what the bill is about.

One thing it is about is Congressional meddling into the business models that private companies use to procure produce. Specifically, the current bill makes an assertion that wholesalers and distributors are a threat to food safety.

That is not fair and not true. The produce industry should not hesitate to point out to Senators from states with terminal markets and wholesale facilities that the bill as contained in the continuing resolution will hurt urban family-business wholesalers, and companies such as Sysco, US Foodservice and Supervalu should have a chat with FMI and NRA and demand that they push Senators to reject the continuing resolution until business-model neutrality is included in any food safety component of the resolution.

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