Many years ago, I wrote several newsletters about my concerns about the Food Safety Modernization Act, a law that was passed by Congress in 2011 to do exactly what its name entailed. Small and organic farmers had concerns that the regulations would essentially put us out of business, so we got involved with the process by which the Food and Drug Administration developed the actual rules that would be implemented.
Last year, the California Department of Food and Agriculture began implementation of the law, conducting inspections of farms that fall under the Produce Safety Rule — the part of FSMA that regulates not just fresh produce but also nuts and several other crops grown in California. We had our first “Mock Inspection” last year. Then last week, it was time to do the first true inspection.
When talking about food safety, it is important to remember that the United States has one of the safest food supplies in the world. Outbreaks of food-borne illness get lots of media attention when they happen, but they are rare. And food can be contaminated by pathogens at any step between the farm and the fork, including during preparation either inside or outside the home. At the root of FSMA is the issue of liability. It is based on a 100 year old law that holds anyone involved in the food supply chain responsible if the food makes someone sick, including farmers. If the FDA determines that a farm “allowed” their products to be contaminated before leaving the farm, then that farm is liable for the damage that results.
The gap between the legal definition of “contamination” and the actuality of growing crops outdoors, in the soil, is enormous. For example: To someone who works in food safety for a living, for example, soil is simply a contaminant. To a farmer, soil is the equivalent of air, light and water. It is not a substance, but a living ecosystem. To treat it as a potential threat creates cognitive dissonance of the highest order.
Our 10 hour inspection by the CDFA Food Safety Inpectors might have made a humorous video sketch had the stakes not been so high. The two amicable people visiting our farm had the power to shut us down with a single phone call had they found something that they determined to be a threat to public health and safety. Yet at times during the conversation, I felt like I was speaking a foreign language that they could not understand. At other times, they asked me questions that I thought were jokes — it was April Fool’s Day, after all — but they were dead serious.
But the most problematic moment of all came when they asked about our use of compost as a fertilizer. 14 years ago, when the FSMA legislation was passed, the FDA had actually come out with draft regulations that prohibited the use of compost on fresh vegetables. The threat of losing our primary soil-building tool was the catalyst for organic farmers all over the country to get involved with the rule-making process. Now, after I spent hours in meetings fighting back against the compost prohibition, the two inspectors were confirming my worst fears. They didn’t appear know the difference between manure — defined as raw animal feces — and Compost. Composting is a natural process that uses heat and water to kill harmful pathogens in manure and other raw materials while stabilizing the nutrients and making them less volatile.
The FDA-trained inspectors didn’t know the difference between manure and compost. I gave them a 20-minute explanation, including the lab tests from our compost supplier showing proving it to be free of harmful pathogens. They insisted that we still needed to treat it as a potential contaminant. I pushed back, forcefully and (relatively) politely. It is not.
I don’t blame the inspectors for trying to do an impossible job. The Food Safety Modernization Act and the rules implementing it are absurdly complicated. A handful of the activities farmers are mandated to do will likely reduce the number of foodborne outbreaks, including training for workers on sanitary practices and testing irrigation and post-harvest processing water. But it also requires growers to spend hundreds of hours generating paperwork that has little practical value. And passing the inspection does not earn a farmer anything, not even a certificate such as a health inspector would award a restaurant, for example — and certainly no protection from liability in the case that some invisible pathogen finds its way onto your crop.
The biggest health threat posed by food comes not from fresh produce of any kind, but from processed and fast foods that in the language of FSMA are “safe”, yet cause serious long-term illnesses that kill thousands of people every year.
Thanks,