Will the FDA's New Food Safety Rules Hurt Small Farmers?

Forthcoming rules from the FDA promise to keep food safer, but at what cost to the local food movement?

New regulations may cramp common practices on organic farms, such as grazing chickens on recently harvested fields. (Photo: USDAgov/Flickr)

Oct 1, 2013· 5 MIN READ
Twilight Greenaway is the managing editor of Civil Eats. She has worked as a writer and editor on the web since 2000.

No one wants to feel like one's life is at risk, but how much power should we give our government agencies to keep us safe? Where do sensible rules and regulations end and invasive supervision begin? And whose lives will be permanently altered in the process?

No, it’s not homeland security I’m talking about but food safety. And as the Food and Drug Administration prepares to enforce a set of long-overdue food safety rules, these questions are becoming harder to ignore—especially for small farmers and others involved in building the local food movement.

You see, back in 2011, when Congress passed the highly controversial Food Safety Modernization Act, a coalition of farmers, sustainable farming advocates, and consumers worked tirelessly to ensure that the bill wouldn’t put undue burden on small food producers. We all deserve safe food, the thinking went, but why should a 10-acre organic farm have to follow all the same rules as a 10,000-acre corporate farm? After much debate, rather than adjust the safety rules to better fit small farms, lawmakers agreed to an amendment that would partially exempt farmers grossing less than $500,000 a year who sell more than half of their products directly to consumers, or to retailers that do.

Earlier this year—more than two years after the bill was passed—the FDA finally came out with a set of draft rules that all non-exempt produce growers will have to follow. And despite the exemption, it has many small farmers worried.

Take Jim Crawford of New Morning Farm. He and his wife have been farming organically on around 40 acres in southern Pennsylvania since the early 1970s, and they sell the bulk of their produce to chefs and consumers in Washington, D.C. As one of the larger small operations in the area, Crawford’s farm will not be exempt. Even though they sell more than $500,000 worth of produce, he says, “We don’t keep even 10 percent of our sales as income.”

Following the rules—if the draft version gets final approval—will mean regularly testing the water they use, filling out masses of paperwork, and providing regular training for his workers. But Crawford’s biggest concern is the part of the rules governing manure, which he uses in abundance to boost fertility on his farm. While some is composted, a portion of that manure is applied fresh and given several months to decompose in the soil.

“We will probably have to start composting all our manure,” he says, “which is extremely expensive and time-consuming.”

Another part of the rules, which require farmers to monitor all animals—domestic and wild—that go near the produce, also seems virtually impossible to him. “Wildlife is everywhere in the farming environment. It’s just not a realistic expectation,” he says.

Judith Redmond, of Northern California’s Full Belly Farm, another organic operation that would not qualify for the exemption, is equally alarmed about the idea of her farm’s compost use being monitored by a government agency.

“We think that properly made compost should not be regulated. In fact, we think it should be recommended as a way to control pathogens,” Redmond says. Similarly, she believes that animals belong on a diverse, healthy farm, because they add manure to the soil, balancing the nutrients.

“On our farm, for example, pastured hens graze on crops once they’ve been harvested. The FDA is proposing we put nine months between those grazing periods and crop production. That amount of time would basically remove those animals from the farming system.”

As Ariane Lotti sees it, “FDA is taking a sterilize-the-landscape approach.” Lotti is assistant policy director of the National Sustainable Agriculture Coalition and has been tracking the food safety bill since its origins. She also attended several recent FDA listening sessions with farmers about the proposed rules. “They’re basically saying that chemical production is safer than farming that happens with compost and manure. But if you look at a farming system, that’s not necessarily how things work.”

Lotti says she has also heard a great deal of concern from farmers who offer so-called “value-added products,” such as jams, pickles, or anything else that involves processing raw produce. In addition to the proposed produce rules, those farmers may be subject to a second set of rules for food processors.

The prospect of double regulation is particularly noteworthy because many small farmers rely on higher-priced, value-added products to keep their businesses afloat—and there’s a great deal of demand for them at the consumer level. The U.S. Department of Agriculture has also invested a great deal of money and attention into value-added products as a way to grow the local food economy—an effort the new FDA rules may hinder.

“So you all of the sudden have these operations that might come under two sets of regulations, and pay two sets of compliance costs,” says Lotti. One set of rules—and the training, auditing, and paperwork involved—would be onerous. Two might be enough to shut down some businesses, an outcome that's especially undesirable at a time when America is facing a shortage of farmers.

At the very least, the possibility would pose a disincentive for farms looking to diversify, and, says Lotti, “it has farmers thinking: Maybe the FDA doesn’t understand how modern farming works?”

It’s clear that many consumers see a thriving local food economy as a way to build an alternative to industrial farming. And the latter has been tied to countless high-profile food safety scares and outbreaks, such as last summer’s salmonella outbreaks linked to cantaloupes and the now-infamous E. coli 0157:H7 outbreak linked to bagged spinach in 2006.

Indeed, it frustrates many farmers that the FDA doesn’t appear to be focusing more attention on the parts of the food system that have posed the highest risk to consumers in recent years. “We think those higher-risk activities should be addressed more carefully, rather than spreading it evenly across all farms,” says Redmond. She’d like to see more attention given to concentrated animal farming operations, which are well-known sources of environmental pathogens. The so-called “fresh cut industry”—which provides pre-cut vegetables and salad greens—is also regularly linked to food safety risk.

For one thing, the businesses involved in those larger facets of the industry tend to have the budget to hire employees whose sole focus is food safety protocol and paperwork. But farms like Full Belly do not. “We’ll probably have to appoint one of the co-owners to work on food safety instead of sales, planting, or quality control,” says Redmond.

In response to farmer outcry, the FDA has focused its media response around the partial exemption planned for farmers selling less than $500,000 of product each year (and a companion exemption for those selling at the micro level, moving less than $25,000 in food per year).

"Together, those exemptions exempt from these new produce safety rules 110,000 of the 190,000 produce operations in this country—that's almost 60 percent," Mike Taylor, deputy commissioner for foods at the FDA told NPR recently.

But just how much food those 60 percent account for—in an era of very small and very large farms—may be the bigger issue. In California, where the bulk of our nation’s produce is grown, Redmond says, $500,000 in sales is not a high mark. “You could probably sell that much with less than an acre of strawberries,” she says.

And then there’s the clause that allows the government to revoke a farm's exemption status if it's suspected to be involved in a food safety scare.

“A withdrawal order can be made by FDA if the farm is directly linked to an outbreak, or if FDA believes that there is a problem on the farm material to the condition of the safety of the food.” But the wording, she adds, “is very vague and currently requires no proof from FDA that there is a problem.”

There’s also the fact that many small and organic farms want to grow their businesses to meet the rising demand for local and sustainable food. So even if they haven’t hit the $500,000-in-sales mark yet, all fruit and vegetable farmers have a potential stake in how these new food safety rules take shape.

That's why lifting the dollar amount qualifying farms for the exemption won't make the problem go away. Any hard line is going to cause frustration for those just above and below it, especially because the safety rules were created without smaller farms in mind.

The FDA is accepting public comment on both the produce and processed food rules until Nov. 15, and many farmers are expected to weigh in. Just how the FDA will decide on a final set of rules is still tough to predict. Or when, considering the current government shutdown. But the agency has ordered an environmental impact statement on FSMA’s produce rule based on comments that have come in so far.

Redmond isn’t optimistic about the way these rules could shape the food system. “These rules could make it so that when you go to the store or farmers market, you’ll have fewer smaller local farms to choose from,” she says.

Jim Crawford has only slightly more hope—if you can call it that. “My realistic take is that most farms will just end up dodging the law. It will change the whole psychology of our relationship with the government, and we’ll start seeing them as people to be fooled and lied to. That’s a tragedy in its own right,” he says.