Consumer groups warn of loopholes in food-safety rules

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The proposed rules, laid out on Jan. 4 by the Food and Drug Administration (FDA), are meant to implement the Food Safety Modernization Act of 2010. The law requires farmers and other food producers to adhere to a new set of guidelines, replacing a system that had largely been designed to respond to outbreaks rather than prevent them.

The proposed regulations exempt certain types of farms and foodstuffs, however. Almost 80 percent of farms will not be required to comply with the new regulations, thanks to an amendment adopted during congressional consideration of the legislation.

The amendment, sponsored by Sen. Jon Tester (D-Mont.), is meant to protect small farms and food producers from thousands of dollars in annual costs. Farms and producers that sell less than $25,000 worth of food annually, or make less than $500,000 and sell most of their product within their own state or within a 275-mile radius, would be eligible for exemptions.

The proposed rules appear unnecessarily lax, given the intention of the law, said Caroline Smith DeWaal, director of food safety for the Center for Science in the Public Interest (CSPI).

“It’s really important that these exemptions are construed narrowly,” she said. “I think the whole point of this law was to create a level playing field.”

Don Kraemer, a senior adviser at the FDA, acknowledged that almost eight in 10 farms could be exempt, but said overall acreage tells the real story, since a small number of big farms produce a large portion of the country’s fruits and vegetables.

Kraemer said the proposed rules would apply to 48 percent of the country’s farmland. An additional 31 percent of produce passes through a commercial process — such as a fruit cannery or almond roaster — considered a “kill step” that vastly reduces the threat of illness. Another 12 percent of the exempted produce reflects fruits or vegetables that are rarely eaten raw — like potatoes or dried beans, Kraemer said.

“The biggest reasons for products not being subject to the rule is lack of risk,” he argued.

But the list of exempted foods also includes kale, figs and cranberries, Halloran noted.

“It doesn’t seem that they’ve been to any sort of trendy restaurants lately,” Halloran quipped, referring to federal regulators.

Her biggest concern about the rules is that they do not require testing for pathogens that can lead to sickness or death. Since 2011, foodborne illness has caused 40 deaths, 437 hospitalizations and more than 1,300 illnesses, according to Pew Charitable Trusts.

“There should at least be a spot check of a final product before it leaves the farm or the facility,” Halloran said.

Halloran said she expected Consumers Union and other advocacy groups to call for such testing during the 120-day comment period now in effect, and said she believes the industry expects that requirement to be imminent.

The proposed rules would force the agriculture industry to ensure the safety of fertilizer, irrigation water and water used in packing sheds. Farm workers will be given better sanitation facilities, and equipment will have to be easy to clean.

In total, the Congressional Budget Office estimates the rule will cost the federal government $1.4 billion over the next five years. At a time when agency budgets are being slashed, the costs of implementing the rule could be a problem.

There are also expenses associated with enforcing the rules. The federal government lacks sufficient inspectors to survey more than a small fraction of farms and processors regularly, leaving some to speculate that food producers could choose not to follow the new standards.

“Clearly we worry about that and we plan to target our inspections, to the extent we have them, to alleviate that worry,” Kraemer said, adding that the agency expected most food producers to fall in line.

The FDA is also working with states, which can oversee inspections in their jurisdictions and would rely on certified third-party auditors.

The food industry also has incentive to regulate itself.

Trade groups, including the Produce Marketing Association (PMA), said the new rules would bring consistency to the food production industry and reinforce trust among consumers.

David Corsi, a PMA board member who is also vice president for Produce and Floral Operations at Wegmans Food Markets Inc., said the company would only buy its fruits and vegetables from producers who comply with the new rules, regardless of whether they are obligated to. As much as 40 percent of the 540 growers that supply food to the grocery chain would be small enough to get around the proposed regulations, he said.

“To us, it doesn’t matter what size you are,” Corsi said. “We don’t allow these exemptions.”

Even groups that find fault with the proposed rules are generally supportive of them. Despite the exemptions and lack of federal inspectors and funding concerns, CSPI’s DeWaal said she expected widespread adherence to the new standards.

“At the end of the day, a lot of companies will comply, simply because it’s the law,” she said.