The deadline is fast approaching for commenting on the proposed rules under the Food Safety Modernization Act (FSMA), and it’s becoming increasingly clear that many small farmers will be negatively affected by this costly and burdensome law. Farm advocacy groups across the U.S. are urging all farmers to submit comments to the federal Food and Drug Administration before the Nov. 15 deadline.
Over the past year, several Pennsylvania farmers have received surprise visits from FDA inspectors, according to Brian Snyder, executive director of the Pennsylvania Association for Sustainable Agriculture (PASA). He believes that FDA does not really want to exempt any farms, whatever their size or description. The proposed rules, he argues, will cause serious damage to sustainable agriculture and local food—some farmers will be forced to quit farming, new farmers will be unable to get started, and traditional farms will be unable to diversify, even while the proposed rules do little to increase food safety. Yet many farmers seem unconcerned or unaware of what they face under the proposed rules.
“We’re concerned that farmers are putting way too much emphasis on the idea that these so-called exemptions will shield them,” he said.
The National Sustainable Agriculture Coalition has identified many issues that will affect market farmers, including those who believe they will be exempt. The FSMA provides a total exemption for farmers who sell less than $25,000 a year and a “qualified exemption” for those who sell less than $500,000 a year if more than half goes to “qualified end users.” Here are some of the issues that might affect direct-market farmers:
Those who would be subject to the qualified exemption must provide the name and complete address of the farm on either a food packaging label or on a sign at point of purchase; and be prepared to demonstrate to an FDA inspector that you qualify for the exemption, and that you have met state and local requirements.
Total farm sales of all food sold for human or animal consumption are used to determine the exemption. So if, for example, your parents grow commodity crops (including meat and dairy) worth more than $500,000 and you have started a market farming venture on the same farm, you are not exempt. If you have a farm with sales over $500,000 and your kids want to have a garden and sell their produce at the farmers market, they are not exempt.
Even if you are partially exempt under the law, you can be inspected and if an inspector sees something he or she considers dangerous, the inspector could initiate a process to revoke your exemption. Under the Proposed Rule, there is inadequate due process for challenging that action. Once an exemption is revoked, there is no provision for it to be reinstated and the full force of the FSMA rules will be applicable, presumably for life.
In addition to the Proposed Produce Rule, there is a separate Preventive Controls Rule that applies to “manufacturing facilities.” As currently written, many small farms could fall under the definition of a facility. If you run a food hub, you are a facility. If you buy fruit from a neighbor to include in your CSA share, you may be a facility. If you make jams or pickles in your certified, on-farm kitchen, you may be subject to stricter facility rules. If you take a neighbor’s cheese to farmers market along with your own produce, you may be a facility. The proposed rule for facilities is written for large-scale processors, but small farmers may be forced to comply, and local inspectors are likely to be confused in applying the rules to each type of farm inspected.
Farms that fall into the facility category have to register with the FDA, whatever their size.
The Proposed Produce Rule requires an interval of 9 months between application of manure and harvest of a crop. So if you normally let chickens or pigs graze in a field following a crop, you can’t harvest anything from that field for at least 9 months. This is in direct conflict with National Organic Program rules, which provide for a maximum interval of 120 days.
If you use stream, pond, or other surface water for overhead irrigation, or even to mix sprays, you may need to have the water tested every 7 days.
Learning the issues Many provisions in the Proposed Rules are vague and confusing and could easily lead to problems for small farmers, according to those who have studied the hundreds of pages. You can read more specifics and find suggested language for comments at the National Sustainable Agriculture Coalition website.
Although farmers should feel a sense of urgency about this issue, you should not panic, Snyder advises. Try to make your comments constructive and specific to your own situation. It is important that farmers NOT position themselves as being opposed to food safety in general. Instead, make it clear that you support realistic, proven methods of ensuring food safety on the farm; and that rules should be scale-appropriate, backed by science, and practical for smaller farms to deploy.
Lynn Byczynski is the editor and publisher of Growing for Market magazine.
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