Tennessee Williams, in his play A Streetcar Named Desire, has the character Blanche DuBois remark, “…And when I die, I’m going to die on the sea. You know what I shall die of? I shall die of eating an unwashed grape…. ‘Poor lady,’ they’ll say, ‘The quinine did her no good. That unwashed grape has transported her soul to heaven.’”
The United States Congress decided that souls should not be transported to heaven due to the eating of unwashed grapes, or apples, or leafy greens and, in 2010, passed the Food Safety Modernization Act, now known as FSMA.
While the main trigger for action was a string of deadly incidents over the prior decade, mostly tied to fresh vegetable crops that shook the public’s confidence in the government’s regulatory oversight of food production, there were other related influences at work.
Many large food companies favored it due to increasing legal liability fears stemming from the part of their supply chain that they had the least control over—independently owned farms. Produce industry associations wanted Congress to do something—almost anything—to restore the public’s confidence in the products they represented. Consumer advocacy groups were eager to fortify the government with more power to ensure safe food at every table. Food safety experts called for a comprehensive “farm to fork” approach, one based on advanced safety methods used for decades within food packaging facilities. In addition, the Food and Drug Administration (FDA) desired broader authority and additional resources to deal with our country’s increasingly complex food production and delivery system, one ever more reliant on foreign imports.
So now we have FSMA.
Since FSMA became law in January of 2011, the FDA has worked to develop regulations to implement this landmark bill. As a result, there are seven proposed FSMA rules now floating about. They await being made final, and thus enforceable. These proposals cover such food safety related things as imported food, packing houses, orchards and other farms, transportation of food, and animal feed.
These all have varying degrees of on tree fruit growers and shippers. For example, animal feed rules would come into play when cull apples are sent to a cattle feedlot. And, the transportation rule may impact the use of straddle carriers to move fruit from warehouse to another company’s packing facility.
However, the greatest impact for the tree fruit industry will be seen in the proposed rule entitled “Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption,” which is better known as the “Produce Rule.”
FDA has clearly rejected our call to focus regulatory enforcement on produce crops having a known history of food safety problems. The FDA has embraced an umbrella approach that throws its regulatory shade over all produce crops. Compliance with production rules, such as related to irrigation water; required food safety education of field and packing house workers; paperwork mandates; and so forth are all part of the master plan.
My fears concerning FSMA implementation are many. For example, I fear that:
—The FSMA regulatory effort will place unnecessary pressure on our orchardists, in terms of the cost and headache of compliance, without true enhanced food safety benefits to consumers;
—FDA does not have the resources to properly implement any final rules and is unlikely to get such money from Congress;
—Without enforcement money from Congress, FDA will seek fees from the affected regulated community (read: new taxes on orchardists and packinghouses);
—Fresh produce imported from overseas, although fully subject to the FSMA rules, will skate into our country by way of forged paperwork;
—Our tree-fruit industry will likely face retaliatory actions in export markets, whenever FDA officials should enforce our country’s food safety standards in foreign fields;
—In the future, federal enforcement officers on the ground will prove to be much less flexible or reasonable than the capable and comforting food safety officials who are now developing FSMA rules at FDA’s Center for Food Safety and Applied Nutrition; and
—Orchardists will find it difficult to put future advances in food safety technology or science into commercial practice given a fairly rigid set of FSMA rules.
I think FSMA is another example of how a good idea (here, improved food safety for consumers) is forged into a federal law with little understanding by legislators of the complexities of the actual situation. Impossible goals are sought, such as no one should ever die from eating an unwashed grape. A regulatory agency (here, FDA) then is ordered to flesh out the law passed by Congress. The agency, while it truly believes in its public mission, has its own internal institutional impulses for more staff, money, and oversight. What might be done simply is rarely kept simple.
While many of the proposed FSMA regulations are still under review, FDA has opened a new comment period, which closes December 15, for a few of these, including the important Produce Rule. Here FDA is making a sincere attempt, albeit in complicated and opaque language, to give more flexibility to, among other things, its requirement for pathogen testing of irrigation water that comes into direct contact with RACs (bureaucratic speak for “Raw Agricultural Commodities,” or, for our purposes, an apple hanging on a tree irrigated by way of overhead sprinklers.)
The Northwest Horticultural Council, U.S. Apple Association, United Fresh Produce Association, and many other groups, will all be submitting comments to FDA by December 15. I hope you will as well. Maybe Blanche DuBois will, too. •