Personal Injury Law

Preparing for FSMA Produce Safety Rules: What "Ag-in-the Middle" Needs to Do

By Kenneth Odza

Many who track FDA's implementation of the Food Safety Modernization Act (FSMA) believe that a priority for FDA is Section 105, 'Standards for Produce Safety' (FDCA section 419), in particular, the leafy greens regulations.

Farms are exempt under FSMA's produce safety rules if:

(A) during the previous 3-year period, the average annual monetary value of the food sold by such farm directly to qualified end-users during such period exceeded the average annual monetary value of the food sold by such farm to all other buyers during such period; and

(B) the average annual monetary value of all food sold during such period was less than $500,000, adjusted for inflation.

"Qualified End User" is defined as:

(i) the consumer of the food; or

(ii) a restaurant or retail food establishment (as those terms are defined by the Secretary for purposes of section 415) that is located—

(I) in the same State as the farm that produced the food; or

(II) not more than 275 miles from such farm.

The fear among many small farm and "ag-in-the-middle" proponents who are not exempt is that FDA will impose standards similar to those adopted by the National Leafy Greens Marketing Agreement (NLGMA) proponent group. Even the proponent group concedes that "the metrics developed by LGMA are not appropriate in every area and must be modified to address unique risks presented in different regions as well as varying production practices across the country."

Those non-exempt farms who cannot logistically or financially possibly comply with NLGMA metrics should consider the following action steps:

1. Be ready for the rule-making process. Marshal your case why your operation is low risk and should be treated differently from larger-scale operations and for those in California and Arizona the standards were developed for.

2. Start now laying the ground work with your state department of agriculture to seek a state variance for the FDA rules. The FSMA allows that:

A State or foreign country from which food is imported into the United States may in writing request a variance from the Secretary. Such request shall describe the variance requested and present information demonstrating that the variance does not increase the likelihood that the food for which the variance is requested will be adulterated under section 402, and that the variance provides the same level of public health protection . . . .

3. Call your congressional delegation. FDA has significant reporting obligations to Congress, which will have a significant role to play (funding, oversite, etc.) in how the FSMA gets implemented. Start educating your Congress people now on the fears that exist by "ag-in-the-middle" about the produce safety rules.

Full post as published by Food Liability Law Blog on February 14, 2011 (boomark / email).