Senate set to vote on rigorous food safety bill

San Francisco Chronicle

by Carolyn Lochhead

The Senate is set to vote Monday night on the biggest changes to food safety laws in 70 years, handing vast new authority to the Food and Drug Administration to regulate farms and food processors.

Controversy continues to dog the legislation, which is aimed at reducing bacterial contamination in spinach, peppers, peanut butter and a raft of foods plagued in recent years by salmonella and e. coli outbreaks. It would impose rigorous new safety protocols and stronger FDA oversight, particularly over fresh produce.

The Food Safety Modernization Act has fueled a ferocious two-year battle that has pitted the small-farm, locavore food movement against large growers and food safety interest groups.

Small farmers say they are not to blame for mass food poisoning outbreaks and that safety protocols designed for industrial agriculture will put them out of business. Large growers contend that bacteria do not discriminate by farm size; they insist everyone must follow sanitation rules.

An amendment by Sen. Jon Tester, D-Mont., would exempt small farms and processors from federal oversight, leaving them under state and local food safety regulation. Tester, a wheat farmer interviewed by phone from Montana, said small operations "are raising food, they're not raising a commodity."

Western Growers, representing California fruit and vegetable farmers, along with 19 other large produce groups, withdrew their support last week, accusing Tester of waging "ideological war" against large farms by implying that only small farms grow genuine food.

Tester replied, "I can't imagine they're concerned about competition from the guy who takes his food to market in a wheelbarrow."

Still, many grassroots food activists continue to battle the bill. As an example of potential abuse, they point to the FDA's campaign against raw milk producers under authority granted by the 2002 Bioterrorism Act. These include a guns-drawn raid on a Venice (Los Angeles County) raw milk club last summer, raids on a tiny Ventura County goat dairy, and a sting operation two years ago on a Fresno dairy accused of selling raw milk across state lines. Raw milk is legal in California.

The FDA is "entirely unresponsive and extremely abusive," said Mark McAfee, owner of Organic Pastures Dairy in Fresno, the object of the sting operation in which FDA agents offered two employees cash to wear recording devices. (They refused.) McAfee said the FDA should be "stripped of all authority over food and only regulate drugs," he said. "The FDA should be nowhere near our food."

The Pew Foundation's Pew Health Group and other activists against food poisoning called the bill essential.

The House passed a much stronger bill in July 2009 with no exemptions for small farms. Nor did the earlier bill contain changes added by Sen. Barbara Boxer, D-Calif., and others to ensure that the FDA heed conservation and wildlife directives to farmers from other federal agencies, as well as national organic standards, all of which can run at cross purposes with some food safety regimes.

A 74-25 Senate procedural vote last week indicated bipartisan support and likely passage on Monday. With time running out in the lame duck session of Congress, the House is expected to pass the bill and send it to President Obama for his signature.

UC Berkeley Professor Michael Pollan, a guru of the local food movement, endorsed the legislation with Tester's changes. So has the National Coalition for Sustainable Agriculture.

"We've got a tremendous food safety problem tied to the consolidation of agriculture," Pollan said, citing last summer's salmonella outbreak at two egg producers in Iowa that sickened hundreds of people across 14 states and led to the recall of half a billion eggs. "If states are going to drop the ball on something like that, the feds need to step in."

Pollan said outbreaks "tend to be occurring at very large-scale operations which introduce unique risks, and to leave that completely unregulated carries enormous risks for all of us."

The legislation would impose preventive food safety controls known as HACCP (hazard analysis and critical control points), which require producers to use various methods from worker sanitation to heating or cooling "kill steps" to combat bacteria.

Such steps can conflict with organic production, but the bill requires the FDA to consult with the Agriculture Department to avoid conflicts.

The legislation also omits meat, poultry and "egg products," which are regulated by the U.S. Department of Agriculture.

The Tester provision would exempt farms or processors with less than $500,000 in annual sales (indexed to inflation), at least half of which goes directly to consumers through farmers' markets, community supported agriculture, restaurants or grocery stores. Their sales must be within a state or 275 miles of their location, and they must comply with state and local food laws. If contamination is traced to such an operation, the exemption would be void.

Government statistics do not indicate how many farms would be exempt. Small dairies such as McAfee's easily cross over $500,000 in sales. By the same token, the vast majority of farms fall under that threshold. A little-noticed provision in the Tester amendment directs the government to determine the incidence of food-borne outbreaks by farm size, potentially providing data on whether food from small farms is safer, as backers claim.

Western Growers insisted that bacteria do not discriminate based on farm size. "This is a giant step backward," said federal affairs chief Cathleen Enright, arguing that the bill divorces safety standards from science or risk.

Tester denied that claim.

"Size correlates directly with risk," he said. "When we have the kind of e. coli outbreaks we've got where it impacts many, many, many states and thousands of families, that's risk. When we've got a producer that's raising lettuce that's looking at the guy who's going to eat it right square in the eye, that's a different level of risk entirely."

Deborah Stockton, executive director of the National Independent Consumers and Farmers Association, a small-farm group, warned that the legislation grants the FDA authority to inspect any farmer, large or small, if the agency has "reason to believe" there is a food safety problem. She said similar safety regulations imposed on the meat industry in the 1990s eliminated half the nation's small slaughterhouses because they could not afford the cost, even though the rules were phased in gradually for small producers. "We're not giving up," she said.

Ferd Hoefner, policy director for the National Sustainable Agriculture Coalition, which negotiated for protections for small farms and supports the Senate bill, said other small farm groups are being "myopic" because small farms would face FDA regulation anyway, without the Senate bill's protections.

As it is, the legislation requires the FDA to inspect even large food processors only once every five years. Eric Olson, director of the Pew Health Group, dismissed the notion that the FDA would harass small farms. "The FDA just isn't going to have the time to be rooting around after specific (small) producers," he said.