How the new law affects small farms

Sens. Kay Hagan (D-N.C.) and Jon Tester (D-Mont.) introduced a key amendment (download Tester-Hagan Amendment) to the Food Safety Modernization Act, which exempts small farms and processors from some regulations and recordkeeping that are more appropriate for large-scale agricultural enterprises.

Here are the main points of the amendment:

  • Defines a small farm as one that earns less than $500,000 in revenues from food sales And sells more than 50 percent of their food directly to consumers, local restaurants and farmers’ markets, within 275 miles of the farm or within the same state

  • The Secretary of Agriculture can revoke the exemption in case of a foodborne illness outbreak at the farm.

  • Small food processors—such as those that make jams, salsas, cheese—that sell less than $500,000 worth of goods each year have to provide documentation such as inspection reports, licenses, etc., that it complies with state and local laws. For example, a pickle maker would be required to show that it completed the state’s required safety courses for that industry.

  • Unlike their large-scale counterparts, small food processors do not have to include bar codes on their products. Instead, they must label the products with the business name and address. This is to help state and federal regulators trace the product to its source in case of an outbreak of food-borne illness.

  • The FDA also must study the food processing industry—large and small— to determine the type and number of facilities that are on farms, the size of the operations, the processing methods and the incidence of food-borne illnesses at these facilities.

Know your farmer

You’re browsing the tomatoes, farm-fresh eggs or spinach at one of the many farmers’ markets in the Triangle. How do you know the food is safe? Ask the farmer. That’s one of the benefits of buying from the local farmers market; you can know your farmer and know your food.

  • Ask how the food is grown, or in the case of meat and eggs, how the animals are raised. Does the farm use synthetic pesticides or herbicides? Has it been certified that it raises and slaughters its animals humanely? There are five leading certification programs, Certified Human, Animal Welfare Approved, Global Animal Partnership, USDA and American Humane Certified.

  • Ask how the farm ensures its food is not contaminated, including an explanation of its safety practices.

  • If the food is processed—jams, salsas, pickles, cheese, baked goods, etc.—ask about the canning process and safety standards.

  • You can also contact the market directly to ask about the standards, verification and documentation it requires from its farmers.

A snow squall swirled overhead as farmer Richard Holcomb surveyed a crop of greens and pinched off a piece of purple kale. Without checking it for dirt, I rolled the leaf and ate it. Seconds from being picked, it tasted crisp and sweet.

At Coon Rock Farm near Hillsborough, heads of purple cabbage bedazzled the red clay rows while radish, beet and turnip tops shivered, their offspring biding their time underground. Within the next three days, workers would harvest about 5,000 heads of cabbage, plus hundreds of pounds of other leafy greens and root vegetables that would be sold to consumers via farmers markets, cooperatives and the Piedmont restaurant in Durham and Zely & Ritz in Raleigh, which Holcomb and his partner, Jamie DeMent, co-own.

North Carolina’s farmers have been not only planting and harvesting, but also watching the Food Safety Modernization Act wend its way through Congress. At 242 pages, the bill, which President Barack Obama signed into law earlier this month, is the most sweeping overhaul of the U.S. food system since the 1930s. It charges the U.S. Food and Drug Administration with more tightly regulating and inspecting farms and food processors in hopes of reducing food-borne illness, which kills at least 5,000 people and sickens thousands more, in the U.S. each year. (Meat, poultry and processed eggs aren’t covered because those operations are regulated under the U.S. Department of Agriculture.)

The law could have decimated the small family farm movement had it not included the Tester-Hagan amendment, a hard-fought addition to the bill that exempts small farms from some of the law’s most expensive regulations.

Yet what the law fails to do is address the underlying issues of America’s mammoth food and farming systems. We eat foodproduce, in particularthat has been grown from genetically modified seed on massive farms, doused in herbicides and pesticides, and processed and commingled with vegetables or fruits from other massive farms. It is then transported thousands of miles over days or weeks and then sits on your grocer’s shelf where, misted and arranged with its sunny side up, it tries to look edible.

Small farms are an alternative to this system. The law, while imperfect, at least recognizes other ways to raise and sell food.

“We have to go back to the beginning,” Holcomb says, “to the way we grew food for thousands of years.”

The new law was prompted by several high-profile outbreaks of food-borne illness in the last five years, including E. coli in spinach from a large California farm and salmonella in peanuts from a Georgia facility and in jalapeño peppers imported from Mexico.

And while the new law is notable for some improvements in food safety, it is still very limited in its scope. It charges the FDA with relying heavily on paperwork, which, while helpful in documenting safety practices, does not cover other core issues in our food system.

“It’s important to remember that the bill does not address everything you and I might consider food safety issues: pesticides, allergens, hormones, genetically modified organisms,” says Roland McReynolds, executive director of the Carolina Farm Stewardship Association, which advocates on behalf of farmers and consumers to promote local and organic agriculture.

However, the law does give the FDA power to mandate recalls of contaminated food; previously, it could only ask companies to voluntarily recall it. Most producers are required to maintain a safety plan and provide documentation that they’re following it.

The law requires high-risk facilities to be inspected at least once every five years, and eventually, once every three years. Sound laughable? Currently, the FDA inspects these high-risk facilitiesthose that deal in foods that are vulnerable to contamination, such as fresh juices and leafy greens, and those with spotty compliance historiesonly once every decade.

Most important to North Carolina’s 45,000 small farms is the Tester-Hagan amendment, which was successfully included in the law. Earlier versions of the bill didn’t include the amendment, which, as Holcomb says, would have “destroyed family farms or forced them underground.”

Without the amendment, small farms would have been subject to the same regulations as large-scale agribusiness, including intensive paperwork and expensive bar code requirements. The Carolina Farm Stewardship Association estimated the cost for a small farm to comply with the new regulations to be $9,500 in consulting and testing fees, plus 150 hours of labor to meet the recordkeeping regulations. When you consider that 91 percent of North Carolina’s small farms gross less than $50,000 a year, the consulting fees alone eat up 20 percent of a small farm’s revenue.

Small farmers and their advocatessuch as the Center for Food Safety, Organic Consumers Association, state and local nonprofits, and dozens of local co-opssuccessfully argued that small farms should be exempt from these requirements because they are not the problem. The FDA has yet to trace a large-scale food-borne illness in the U.S. to a small farm.

As a result, Democratic Sens. Jon Tester of Montana and Kay Hagan of North Carolina wrote the amendment that exempts small farms from many of the industrial-scale regulations.

Hagan wrote in a prepared statement that “this amendment protects our small producers from unnecessary government red tape. Because of this amendment, small farmers can continue bringing their homemade jellies, vegetables and freshly baked bread to farmers markets without being overburdened by new government regulations.”

“What happened is the local, organic, sustainable food movement got effectively involved to highlight that the existing system is designed for big business,” says McReynolds, who helped lobby for the amendment. “We said, ‘You need to modify the bill for small farmers’ and we got a lot of significant modifications. There will be space for small farms to exist.”

Initially, big agriculture favored the bill; the tighter restrictions at least gave the appearance that large farms were on board with higher food safety standards. But when the Tester-Hagan amendment was added, 20 major food producers, including the United Fresh Produce Association and the Produce Marketing Association, fired off a letter to Congress opposing the small farm exemptions, alleging they jeopardized food safety. They asserted that Tester’s comments, “Small producers are not raising a commodity, but are raising food,” was tantamount to waging “an ideological war against the vast majority of American farmers.”

McReynolds notes that the most important point of the amendment is “the recognition in federal law that small farms need to be regulated differently than large farms. It has been resisted in the past. That’s a tremendous advance to allow an alternative food system.”

A small farm (see sidebar at right) is defined as one that sells less than $500,000 in food annually and sells its goods within 275 miles or within the same state.

Small farmers who don’t process foodmeaning they don’t produce jams, pickles, salsas, cheeses, etc.will be largely left alone unless there is an incident of food-borne illness at that farm. The FDA then can revoke the exemption.

The law also provides for a grant program for small farmers, processors and wholesalers to take food safety courses. And instead of requiring bar codes on products from small farmsthe equipment and interfacing with the national Universal Product Code system is extremely expensivea producer must only clearly label them with its name and address.

“By putting that label on there, the farm is already putting themselves on the line,” McReynolds says.

“Our customers know us,” says DeMent of Coon Rock Farm. “They can come out and see what we’re growing.”

Dan Ragan, director of the food and drug protection division at the state department of agriculture, says the amendment is a positive for small farms. “We don’t want to put too much of a financial burden on them,” he says, noting that the limited distribution area and labeling requirements are sufficient. “We’ll be able to find it if something goes wrong,” he says.

But some small farmers say the law and the amendment are inadequate. Bob Kellam, who, with his wife, Susan Wyatt, owns a 60-acre farm in east Raleigh, says he would have reduced the 275-mile limit even further. (It was originally 400 miles to accommodate farmers in western states where markets are farther apart. The law now reads “within the same state.”)

In fact, local farmers markets have tougher restrictions on who can sell there. The Raleigh downtown farmers’ market has set a 90-mile limit; the midtown market at North Hills is 50 miles and Durham’s is 70.

“I’m really pleased the amendment survived,” Kellam says, “but it’s only a small step. A lot more needs to happen.”

Holcomb and DeMent opposed the law and the amendment. “I spent a lot of time fighting it,” DeMent says. “It doesn’t solve the main problems with food systems. It overreaches and it doesn’t deal with education. My sincere hope is that it would have died.”

The state agriculture department has been preparing for the bill’s passage and is already contracted with the FDA to conduct inspections. Ragan says his department, if there is adequate funding, will conduct more inspections on high-risk farms and processors, such as those that make fresh juices. Of 8,000 farms registered with the state agriculture department, 480 are classified as high-risk. The state has just 30 inspectors to oversee the farms.

Ragan says the state doesn’t visit small produce farms unless they are “processing”cutting, cleaning and packaging greens, for example. However, even merely cutting and bagging baby greens or mixing them with other greens grown on the same farm could be considered “processing.” That requires more documentation and oversight.

Local farmers markets also have requirements for their vendors. Erin Kauffman, Durham farmers market manager, says every farm that sells meat has to provide the market with a copy of its meat handler’s license. Those who sell baked goods must present a home processor inspection from the state agriculture departmentand if the bakery is on well water, a copy of the most recent well inspection.

Market workers also conduct random annual inspections of the farms to ensure they are growing what they sell.

Hallie Mittleman, manager of the Downtown Raleigh Farmers Market, says its 25 vendors must present all the appropriate state licenses. The market also works with local county extension agents. “We not only want to follow the law, but assure our customers that their food is safe,” she says.

The Kellam-Wyatt farm is tucked behind shopping centers and subdivisions in east Raleigh. Bob Kellam’s grandfather once grew tobacco on the landKellam remembers driving a mule sled back to the barnand now the acreage yields 40 varieties of vegetables and fruits. In the height of the season, blueberry and raspberry bushes and scuppernong grapevines will be bowed with fruit. Okra, spinach, arugula and other crops have been picked and the ground awaits replanting. Bee colonies hum on the farm’s perimeter. Oak logs incubate shiitake mushrooms.

“Making small farms exempt from the new requirements implies that we somehow dodged the bullet when we shouldn’t have been targeted in the first place,” says Kellam, who, with Wyatt, retired from the Environmental Protection Agency.

The crucial factor in food safety, says McReynolds, is that concentrated distribution systems that combine produce from many farms and redistribute it across the nation are inherently riskier, although big agriculture would disagree.

Compared to unprocessed leafy greens, their processed counterparts were responsible for 99 percent of food-borne illness outbreaks between 1990 and 2009, according to Food and Water Watch. The common denominator is the distribution system, not the farm.

It’s harder to trace the source of outbreaks in large-scale operations because the produce is often mixed at processing plants; that’s why it can take weeks for the federal government to find the cause of a food-borne illness. The law is intended to fix this problem.

“I think the bottom line is traceability,” McReynolds adds. “You know where your food is coming from. At the grocery, you have no idea how many hands have touched it, how many steps where it could have been contaminated.”

The small farms’ labeling requirements make it easier to trace the productsand hold accountable the producers. “If a small farm makes somebody sick and people find out about it, they’re done,” McReynolds says. “There is no corporate reorganization to hide it.”

Kellam equates Americans’ hunger for quick, cheap foodcheap because of the generous federal farm subsidies, $15 billion in 2009to that of the real estate and stock markets. “There is a food bubble and it’s in danger of collapsing. There could be another Dust Bowl or oil embargo. Big agriculture dismisses small farms saying they can’t feed the world. Well, local agriculture is a safety net.”

Farmers are watching howand ifthe law is implemented. The FDA now begins its rulemaking process, which means it can still craft language to favor big agribusiness over small farms. As important, Congress will have to appropriate $1.4 billion over the next five years, some of which will be used to pay an additional 2,000 FDA inspectors. Given the economy and the Republican promises to slash spending, that money may not materialize.

Earlier this month, Reuters quoted a spokesman for Rep. Tom Lathan, R-Iowa, who sits on the appropriations subcommittee that deals with the FDA, as saying, “When one considers the record deficits our country faces and the renewed focus on fiscal restraint in the U.S. House of Representatives, it’s going to be very difficult to find the money to pay for implementation of the bill.”

While sausage is made in Washington, consumers ultimately have the power to influence how food is grown and consumed. Know your farmer, talk with your farmers market manager, eat fruits and vegetables in season (Is it really necessary to eat quince from Chile in December?) and wash your fruits and vegetables when you get them home.

“The whole relationship is built around trust,” McReynolds says. “Know where your food is coming from and seek out local, organic sources.”