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WGA’s Food Safety Plan Gets Attacked

Jim Prevor’s Perishable Pundit, December 19, 2006

As the spinach/E. coli crisis grew, with astonishing alacrity the Western Growers Association came to the conclusion that only mandatory regulation would both solve the food safety problem and appease industry critics. So, on October 30, 2006, Western Growers Association issued this statement:

The effect of these actions, when completed, will be to impose enhanced and mandatory food safety processes on all aspects of growing, packing, processing and shipping of spinach and leafy greens. Enforcement and process verification will be overseen by state and federal government regulatory agencies.

The first step in this process is now beginning and, already WGA is being hoisted by its own petard.

The WGA-proposed legislation that has been submitted is to establish a “California Leafy Greens Products Handler Marketing Agreement,” which is to be considered at a public hearing on January 12, 2007.

The basic idea of the proposal on the table is that there will be a board approving a set of standards. Handlers of lettuce and leafy greens in the state of California that desire to do so may pay a fee, agree to follow the rules and, in turn, can use a special mark on their products signifying they are a signatory to the agreement.

The two things that stand out about this proposed “Marketing Agreement” are that A) Participation is voluntary — a word that does not appear in the WGA Press release, and B) The board will consist of between 7 and 13 growers, processors and others in the business; possibly there will be one representative of the public.

It is not shocking, then, that criticism began pouring in as soon as the hearing was scheduled:

Senator questions industry self-regulation on food safety

FLOREZ WILL INTRODUCE LEGISLATION TO ENHANCE TRAINING, MONITORING AND ENFORCEMENT

SACRAMENTO — Senator Dean Florez, D-Shafter, who has strongly advocated for enhanced food safety laws in the wake of deadly E. coli outbreaks, says that a plan by industry to implement a “voluntary marketing agreement” does little to reassure consumers the leafy greens they eat are safe. Without state regulations and enforcement action, the proposal amounts to little more than “the fox watching the hen house,” Florez said.

Florez announced in September, following the deaths of three people across the country from contaminated California spinach, that he would develop a California Produce Safety Action Plan to introduce in the upcoming legislative session. He pledged that the measures would address all identified threats to food safety, with a focus on better training and more stringent monitoring.

Industry representatives, looking to head off mandatory regulations and the enforcement actions that come with those, have put forward a proposed “marketing agreement,” which would essentially mean that those who voluntarily chose to use the best practices adopted by the industry-heavy “Leafy Green Handler Advisory Board” and pay a fee could put a mark of certification on their produce.

The industry contends that consumer demand for certified produce would force growers to participate in the program to remain competitive, but Florez argues that “most Californians are so accustomed to buying leafy greens without a sticker they would never know something was missing.”

In addition, the proposal does not address other high-risk produce, such as onions and green onions, which also grow close to the ground and have been identified as the source of past food-borne disease outbreaks.

“There is a big difference between marketing a product to get people to buy it and improving a product so that people should buy it,” Florez said. “The public is not going to be reassured by a program that is run by a board of industry members who stand to profit from their actions, and which does not even fine those who fail to comply. We need the teeth of regulation and enforcement, covering all high-risk produce, to give them that peace of mind. With two major outbreaks in just months, the time for an industry-only response has come and gone”

Florez has many concerns with the proposed marketing agreement put forward by Western Growers, which will be considered and discussed in a January 4 hearing of the Senate Governmental Organization Committee, which Florez chairs.

The proposal mentions “best practices” and “periodic” inspections but leaves both to be defined later by the Leafy Green board. That board of between seven and 13 members would be appointed and would not require Senate confirmation. If that industry-laden Board agrees, the California Department of Food and Agriculture may appoint one representative of the general public. None of these members would be required to possess any special qualifications, such as knowledge of soil science.

In addition, the board has no requirements for public meetings, and members are subject to a confidentiality agreement. Even the board’s meeting minutes would not be available for review.

Florez is moving ahead with plans for legislation to regulate growers and packers just like any industry which provides food to the public, noting that restaurants and meat distributors are not left to self-monitor with a “marketing agreement” due to the obvious health risks to consumers.

The California Produce Safety Action Plan will have the following elements at its core:

  • Requiring food producers to code their products so that those products can be quickly traced in the event of a food-borne illness outbreak.
  • Requiring that food producers and processing plants have procedures in place to prevent and reduce food contamination. This would include wildlife fencing, enhanced worker sanitary procedures and water standards.
  • Requiring regular inspection of domestic food facilities with frequency based on risk. Additional inspection on farm, processing and retail outlets with this high-risk profile.
  • Giving CDFA full recall authority. If the food safety system is centralized in one agency, the agency could quickly respond to an outbreak.
  • Barrring the use of raw manure as fertilizer during the growing season.
  • Implementing more stringent monitoring of manure composting practices to make sure that pathogens are destroyed.
  • Requiring more frequent testing of water used for irrigation at the source and output entry ways.

We asked Western Growers Association for a response to State Senator Florez’s release, and here is what we were told:

Tim Chelling, Vice President Communications, Western Growers Association

I can only believe there is some misunderstanding with Senator Florez. The process ultimately results in mandatory regulations, enforced by the California Department of Food & Agriculture. Specifically, the proposed WGA marketing order is omitted in the press release.

There will be many comments by people in different realms related to this crisis and not all will be complete or accurate.

We’re going to proceed as responsibly as possible.

What we are proposing is basically a two-step process. The marketing agreement is more voluntary. The marketing order, which comes after — and this would be a matter of months later — is mandatory. The bottom line is there will be mandatory food safety regulations governed by and enforced by the California Department. of Food and Agriculture.

What also happens is there’s an elected board which can add more safety guidelines to the order, which is permanent..

The other WGA vote was not only for state regulations, but also for a national marketing agreement and marketing order process, which takes longer.

This is a legal process, and implementing laws takes time.

There is no fox guarding the hen house. That is why the industry is inviting the government to come in and regulate it. This is too serious a situation to play games with. The industry has no intention than doing any thing other than taking substantial and effective actions.

The release refers to the marketing agreement but neglects to mention the marketing order.

The Pundit thinks the WGA set itself up to be attacked. The WGA press release does not contain the word voluntary. So no matter how many stages there are, and what ultimately will happen, it looks like the WGA is backtracking.

In addition the key question, what standards will be enforced, is being left to the growers:

“Leafy Green Best Practices” or “Best Practices” means the commodity-specific leafy green best practices document and the requirements contained therein, prepared by industry scientists, reviewed and approved by state and federal agencies, scientifically peer reviewed by a nationally renown science panel and adopted by the board.

Note that last phrase “…adopted by the board.”

Who is on this board?

“…an Advisory board, to be known as the California Leafy Green Advisory Board, is hereby established. The Board shall consist of no less than seven (7) and no more than thirteen (13) Signatory Handler members, with the exact number of members to be determined by the Board. However, the initial board shall consist of 13 members comprised of members as described in sub-paragraph a through c, below:

  1. The Blythe-Imperial Valley area shall have three (3) members and three (3) alternate members and shall consist of the following counties: San Bernardino, Riverside, and Imperial.
  2. The Oxnard-Santa Maria area, shall have three (3) members and three (3) alternate members, and shall consist of the following counties: San Luis Obispo, Santa Barbara, Ventura, Los Angeles, Orange, and San Diego.
  3. The Salinas-Watsonville-San Joaquin area, shall have seven (7) members and seven (7) alternate members, and shall consist of all the counties in California which are north of the northern boundaries of San Luis Obispo, Ventura, Los Angeles, and San Bernardino Counties.

… In addition to the members and alternate members, and upon the recommendation of the Board, the Department may appoint one (1) member and one (1) alternate member to the Board to represent the general public.”

It is hard to believe that WGA proposed something so obviously destined to be attacked. We have a big food safety problem. Growers are perceived to have been negligent. The solution WGA proposes calls for those same growers to run the board that decides, in the end, what best practices it will adopt.

Who could have written this document? It is designed to offend. Note the one token representative of the general public and see how it is phrased. Not that the department “shall” appoint a representative, the department “may” appoint a representative — and then only “Upon the recommendation of the Board.”

In other words, whoever drafted this document was unwilling to guarantee a representative of the public even one single seat on a board that will have between 7 and 14 members.

Even viewing this proposal in the most favorable light as stage one of a three-stage proposal, with mandatory action in stages two and three, the proposal doesn’t address what it needs to.

First the government and consumers are looking to the industry for substantive changes in practices, not merely procedural proposals. In other words, if WGA wants to be effective in this arena, it needs to endorse substantive changes — for example, it could endorse: All lettuce and leafy green fields must be fenced sufficiently to prevent the intrusion of wild animals such as deer or pigs. No mere program of endorsing committees will be sufficient.

The standards to be used cannot be determined by a board of growers. Assenting to regulation is about giving up control. Anything less will be perceived as State Senator Florez said in his release as “the fox watching the hen house.”

Both United and PMA have been remarkably silent on WGA’s proposal. They were probably waiting to see to what extent WGA was actually going to propose a substantive regulatory regime.

They may have also had some concerns about the precedent being set of having some product that is marked “safe” and other product left for consumers to imply “unsafe.” What would this do to consumer perception of other products in the department that don’t have “safe” marks?

The problem here is that even if WGA has the political heft to get this through, it won’t satisfy either regulators or consumers and thus won’t build back consumer confidence.

Time to roll out Plan B.

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