Actually, I think we need both.  No question, a better food safety regulatory policy is high on my priority list.  Why?  Because the food industry will never produce safe food voluntarily.  It’s time to give regulation a try, and now is the time.  While the window of opportunity is open, we need to convince Congress to act.

Current legislative proposals

To recap where we are on this: the House passed H.R. 2749, the Food Safety Enhancement Act last July. The Senate is currently considering S. 510, the FDA Food Safety Act.  Some version of these bills seems likely to pass, although it is not at all clear by when.

Although food safety advocates generally agree that we need a single food safety agency that integrates the activities of USDA and FDA, these bills are designed to fix the FDA alone, not the overall food safety system. For a quick take on the provisions of some of the bills under consideration, see the summary chart produced by the Center for Science in the Public Interest.

The bills require science-based (HACCP-type) processes for producing food, starting on the farm. And at long last they authorize the FDA to order recalls or detain foods deemed unsafe. No, the FDA does not already have these basic tools.  It needs them.

One more time on HACCP: It means Hazard Analysis Critical Control Point with Pathogen Reduction.  Translation: identify where in the production process contamination might occur, take steps to prevent contamination from occurring at those points, document that the steps were taken, monitor and inspect periodically to make sure the documentation is accurate, and test to make sure no contamination has occurred.

Without much chance of getting a single food safety agency, fixing the FDA is a good thing to do.  We can hope that once the FDA bill is passed, Congress will work on legislation to reconcile the inconsistencies in FDA’s and USDA’s food safety rules.  But that cannot happen unless the FDA first has the ability to require science-based food production and can authorize recalls and detentions.

The “scale” problem

This brings us to the problem of small farmers, or what regulatory agencies refer to as the “scale” (translation: size) problem. Steve Gilman, the policy coordinator for the Interstate Council of the Northeast Organic Farming Association (NOFA) sent me a copy of a letter to Senators signed by 70 or so members of the National Sustainable Agriculture Coalition.

This group is deeply worried about the bill’s “unintended negative impact on family farms, value-added agricultural development, conservation and the environment, organic farming, and emerging local and regional food systems.”

The Coalition wants the Senate to consider, among other things:

• A two-track regulatory system based on the size, type, and diversity of a farm’s production.
• Rules based on level of risk (“fresh cut, ready-to-eat packaged fruits and vegetables pose a far greater risk than whole produce”).
• Exemptions for traceability requirements.
• Scale-appropriate food safety training as outlined in additional legislation (introduced as S. 2758, The Growing Safe Food Act).

I greatly favor support of small farmers.  But I think all farmers – no exceptions – should be producing safe food. Thinking through a food safety plan is not that hard to do and farmers of any size operations should be carefully designing and diligently following HACCP-type plans appropriate to their specific situations.

Farmers who produce foods unlikely to be cooked before eating — raw vegetables, raw milk, raw oysters, for example – should be testing for contaminants on some kind of regular basis at time intervals that depend on the level of risk.

I think testing is so badly needed that I would add support of testing facilities to the Coalition’s legislative wish list.

The scale issues are important and I hope the Senate will consider them seriously, incorporate them into the final legislation, and look for ways to support the food values outlined by the Coalition.   But the fix-the-FDA legislation should not be held hostage to the scale problem.  The FDA needs better methods for protecting the public from the hazards of industrial production methods.  While making sure the FDA gets food safety authority, we need to work hard to get scale-appropriate rules or enforcement for smaller farmers who want to opt out of industrial food production, grow diverse crops, and produce them sustainably.

The bills themselves are miserable to read and it is hard to believe that anyone in government does.  That is why the Congressional Research Service (CRS) does summaries that even legislators can understand.  CRS researchers have now produced blessedly short and hopefully accurate summaries of the House bill as well as the Senate bill.

As my contribution to the cause of clarity, I have done a quick edit of the CRS summaries, with comments in Italics.  The links above are to the original bills so you can plow your way through them to see if this does them justice.   Enjoy!

THE HOUSE BILL, H.R. 2749, requires each food facility to:

(1) Conduct a hazard analysis, (2) Implement preventive controls, and (3) Implement a food safety plan. [This sounds like HACCP, although they aren't calling it that. I vote yes]

Requires FDA to:

(1) Issue science-based performance standards to minimize the hazards from foodborne contaminants [this means HACCP or its equivalent, and about time too],

(2) Establish science-based standards for raw agricultural commodities [this means some version of farm-t0-table HACCP, long awaited],

(3) Inspect facilities at a frequency determined pursuant to a risk-based schedule [this is an admission that the FDA can't handle the work load; it will focus on products most likely to be contaminated]

(4) Establish a food tracing system [this will help identify where foods come from]

(5) Assess fees relating to food facility reinspection and food recall [make companies pay for all this, I hope in a way that avoids conflicts of interest],

(6) Establish a program for accreditation of laboratories that perform analytical testing of food for import or export [can't believe we don't already have this, but that's why we need this legislation].

Authorizes FDA to:

(1) Order an immediate cessation of distribution, or a recall, of food [recall authority at last!]

(2) Establish an importer verification program [accountability for importers, at last!]

(3) Quarantine food in any geographic area within the United States [they can't do this now?].

Defines the term “color additive” to include carbon monoxide that may affect the color of fresh meat, poultry products, or seafood [this will have to meet food additive regulations].

Requires country of origin labeling on food, and annual registration of importers [Yes!].

Provides for unique identifiers for food facilities and food importers [so FDA actually knows who they are].

Deems a food to be adulterated if an inspection is delayed or refused [Yes!].

Requires FDA to establish a corps of inspectors dedicated to inspections of foreign food facilities [Amazing that we don't already have this].

Reorganizes the FDA field laboratories and district offices [Could this possibly be a euphemism for closing some?].

Gives the FDA Commissioner subpoena authority [Yes!].

Establishes whistleblower protections [OK].

THE SENATE BILL, S. 510, is pretty much the same except that it addresses food bioterrorism [fortunately, a rare event so far]. In addition to most of what is in the House bill, it requires HHS and USDA to prepare the National Agriculture and Food Defense Strategy [If this is done right, it ought to promote the safety of domestic foods and imports].

It also requires FDA to:

(1) Identify preventive programs and practices to promote the safety and security of food [worries about food bioterrorism again];

(2) Promulgate regulations on sanitary food transportation practices [good idea];

(3) Develop a policy to manage the risk of food allergy and anaphylaxis in schools and early childhood education programs [I'm not sure how this got in here]

Requires FDA and CDC to enhance foodborne illness surveillance systems [Good idea].

Requires EPA to assist state, local, and tribal governments in preparing for, assessing, decontaminating, and recovering from an agriculture or food emergency [in the military sense of food security].

There is much, much more in these bills.  Bill Marler, who has actually read the bills, has produced his own summary, which includes definitions and more.  If you are wondering what implementation of these bills might cost, the Congressional Budget Office has done an analysis: a mere $2 billion.

It’s hard to know how seriously to take all this until we see what Congress actually does when it gets back to work.  Stay tuned.