Washington Insider - Wednesday

FDA Works Closely With Producers

Here’s a quick monitor of Washington farm and trade policy issues from DTN’s well-placed observer.

Wal-Mart Sued Over Organic Eggs

Wal-Mart Stores Inc. deceived shoppers by selling organic eggs laid by hens raised in enclosed structures under package labels indicating they had access to the outdoors, according to charges in a federal lawsuit filed Monday. In reality, the birds raised by Cal-Maine Foods Inc. were limited to an enclosed structure that had screens to let air in.

"The theoretical ability to view the outdoors is not the same as having access to it," according to the lawsuit. Wal-Mart was able to sell the eggs at a premium due to the organic labeling. Experts say these enclosed structures, known as "porches," meet USDA standards for producers of organic livestock to provide "year-round access for all animals to the outdoors." Last month, USDA shelved plans to define what it means for birds to have access to the outdoors.

USDA To Soon Offer Up Farm Bill Principles to Congress

USDA will soon release new farm bill principles to advise Congress what it would like to see in the coming bill, according to prepared remarks by USDA Secretary Sonny Perdue. "It will be our way of letting Congress know what we've heard from each of you," Perdue said in remarks at the American Farm Bureau Federation's annual conference in Nashville, his first as secretary since being sworn in April 2017.

"We have gathered a lot of input from you all that we have noted and will pass onto those lawmakers," he said. The package is not going to be in the form of legislative language, something that rarely gains any traction on the Hill from farm bill writers

Washington Insider: FDA Works Closely With Producers

In the seven years since the Food Safety Modernization Act became law, a serious question of how closely the agency should work with producers, especially those on the farm, has never been far below the surface. Food Safety News is reporting this week that FDA recently gave itself “enforcement discretion” for some of those complex FSMA rules involving farms. FDA Commissioner Scott Gottlieb said it was all part of working “constructively with farmers and other producers to achieve our shared goals around food safety.”

Peter Lurie, president of the Center for Science in the Public Interest, was not impressed. He says the new guidance for FSMA enforcement amounts to the Trump Administration “undermining that landmark legislation.”

“FSMA was intended to cover the entire food chain, from farm to fork, and the Trump Administration’s new guidance would create a gap in that safety chain by exempting, at least for now, some of those who harvest, package and hold food produced on farms,” Lurie said in a statement from CSPI.

Since the FSMA’s Produce Safety Rule first included a distinction between a “farm” and a “facility,” the National Sustainable Agriculture Coalition praised FDA for hitting the hold button. It says “this seemingly innocuous difference in definition has sent farmers and packers spinning.” “One of the key sticking points yet to be fully worked out by FDA is whether operations that are only packing and holding intact, raw (unprocessed) produce will be subject to the provisions of the Produce Safety Rule or the Preventive Controls Rule, ” according to NSAC.

“How farms and processing facilities are defined has a direct and significant impact on which rules they are subject to, and by extension, these definitions affect the potential costs or administrative burdens producers/processors may have to undergo as part of compliance.”

FDA attempted to ease confusion and tensions around the rulemaking by extending the compliance dates for two types of operations. But they were still left subject to the Preventative Controls Rule.

FDA’s new guidance — released this past week — extends the enforcement delay for farmers to include the Preventive Controls Rule. NSAC says the further “enforcement discretion” policy will “ease stress on producers.”

“This new policy will ensure that the types of operations described above will not have the Preventive Controls requirements enforced against them at this time,” NSAC says.

This distinction between a “farm” and a “facility” is particularly important for food hubs or nonprofit packing operations, that do not fit traditional “majority ownership” definitions and have been as of yet unable to receive clear answers from FDA as to which requirements apply to them.

Under the new enforcement discretion policy, a nonprofit food hub that is aggregating and distributing unprocessed produce may still need to register with FDA and follow current good manufacturing practices but they do not have to adopt the new Preventive Controls requirements until FDA finalizes a rulemaking clarifying which rule governs their activities.

NSAC says it supports “this process of clarification in an attempt to ease regulatory burdens on family farmers and food hubs and that it looks forward to working with FDA and with its members to achieve an outcome that honors FSMA’s public health mandate to establish minimum requirements based in science and risk analysis, which are also flexible enough to work for operations of all types and sizes.

The FSMA, with its preventive approach to food safety, for the first time gives FDA authority to establish food safety requirements for farms producing fruits and vegetables. There are some permanent exceptions written into the law.

A farm that produces less than $25,000 in produce sales is exempt under the FSMA’s Tester Amendment, named for Sen. Jon Tester, D-Montana. And the FSMA concerns “covered produce,” meaning that is in its unprocessed state and usually consumed raw.

Thus, farms that grow only grains fall outside the FSMA’s jurisdiction because grain isn’t considered produce. Still, the FSMA rules are complex, both individually and in combinations with one another. Any determination of how the FSMA applies to an individual produce grower is a task filled with complexities.

Well, nobody thought the expansion of the FSMA’s areas of responsibility for quality assurance would be a simple task, but the recent tolls from contaminated food products were judged by the Congress to be too high and in need of stiffer regulations. Clearly, FDA is on the pan to refine the system and quickly lead to safer food. The needed improvements will not be simple, cheap or easy FSN says—and, it is a process producers should watch closely if the credibility of the food system is to be improved, Washington Insider believes.

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