While headlines highlight terrorism, gun control, federal budget woes and on-again-off-again Saturday mail delivery, another law moving more quietly through the legislative process has the potential to change the food industry -- especially the local food movement.
Earlier this year, the U.S. Food and Drug Administration released a draft Produce Safety Rule that will institute major changes on many farms. Farmers will be required to run more water tests, take steps to prevent wild animals from contaminating their crops, clean their equipment and tools regularly, ensure that their employees practice good hygiene -- and perhaps most importantly, keep written records of much of what they do.
A companion piece, the Preventative Controls Rule, will require food processing and distribution facilities to develop detailed food-safety plans outlining how they will minimize risk, manage allergens, maintain sanitation and issue product recalls.
Neither rule is in effect yet; both are open for public comment through at least May 16, at which point federal lawmakers will revisit them before determining the final provisions. (Earlier this month, the FDA said it was extending the comment period by 120 days. But on Monday, U.S. District Judge Phyllis Hamilton in Oakland, Calif., said the FDA "admittedly failed to comply with the mandatory rule-making schedule" and ordered the agency to come up with proposed deadlines for regulations by May 20.)
But the new legislation is already causing some confusion and concern for local farmers, food producers, distributors and even Penn State food-safety experts.
Both rules are part of the Food Safety Modernization Act, which President Obama signed into law in 2011.
It was the first major food-safety law written since 1938's Food, Drug and Cosmetic Act, which affected the food industry primarily by regulating food additives.
"High-profile outbreaks of foodborne illness over the last decade and data showing that such illnesses strike one in six Americans each year have caused a widespread recognition that we need a new, modern food-safety system that prevents food-safety problems in the first place -- not a system that just reacts once they happen," an online FDA fact sheet says.
But some people might not realize how much of a change the new law really represents, particularly for farmers.
Brian Snyder, executive director of the Pennsylvania Association for Sustainable Agriculture (PASA), notes that historically, the FDA has had very little involvement with farms. Until now, farms generally fell under the jurisdiction of the U.S. Department of Agriculture. So Mr. Snyder worries that FDA inspectors, lacking farm experience, might "learn about farms by making a lot of mistakes" in their inspections, thus bringing repercussions onto the heads of farmers don't deserve them.
PASA supported the passage of the Food Safety Modernization Act, and Mr. Snyder even helped to draft some of the Produce Safety Rule. So he says it's not that he's anti-food-safety; he's simply concerned about some of the specific provisions.
The farmers interviewed echo that perspective.
As Art King, owner of Harvest Valley Farms in Valencia, said, "If one person dies, it's too many."
But he believes the law is likely to make the food supply only "marginally" safer because most farmers are already using good food-safety practices.
"Most of what they're asking for is just common sense."
Martin Bucknavage, Penn State senior food-safety extension associate, said the same is true for the food-processing facilities he deals with. Most of them already exercise good sense in their food-handling practices, so the new legislation won't change their practices much, he said.
Scott McQuiston of Dawson's Orchards, Enon Valley, said he won't need to change many of his farming practices in order to comply with the new law, but he knows other farmers who will.
Both Mr. McQuiston and Mr. King mentioned the new rule governing animal manure as fertilizer. Mr. McQuiston, who doesn't use manure but knows many farmers who do, explained that Penn State food-safety personnel always have trained local farmers to leave 120 days between manure application and harvest. But unless it changes before passage, the new law would require 240 days.
"The government likes to put one-size-fits-all on everybody," Mr. King said, noting that in Pennsylvania, freezing temperatures in the winter kill off pathogens in manure. So while a 240-day span might be necessary in a Southern state, it's not necessary here.
Likewise, Mr. McQuiston noted that irrigation water standards will be the same for all farms regardless of what type of irrigation is used. Water from a sprinkler irrigation system touches the fruit directly, but orchardists usually use drip irrigation that enters the ground at the base of the tree, so the water never touches the fruit. But all water supplies will be held to the same standards.
"I do agree with the concept of food safety," he said, noting he already submits to voluntary USDA audits of his food-safety and handling procedures.
"I don't think any farmer wants to make anyone sick."
Lack of clarity
For both farms and food processors, there's some ambiguity over who will need to comply with the law and who won't.
Farms grossing under $25,000 in food sales will be exempt from the Produce Safety Rule. Farms grossing between $25,000 and $500,000 in food sales may be exempt if they engage in direct sales at their own farms, at farmers markets, or by selling directly to a particular store. But farms that sell to distributors, such as produce auctions (common among Amish farmers) or grocery-chain warehouses, will be required to comply.
The same sorts of exemptions will be in place for food processors and distributors under the Preventative Controls Rule.
Some grocery chains, however, are requiring all of their suppliers to comply with the law -- no exemptions allowed.
Giant Eagle declined to comment on the specifics of the new legislation but issued a statement saying it has "quality assurance processes in place for both nationally and locally sourced offerings" and its own efforts "meet or exceed what is being required."
For PASA's Mr. Snyder, the most worrisome part of the new law is that inspectors have the authority to revoke farms' exemptions, and the law isn't specific about what sort of violation might cause a revocation.
Also, Mr. Snyder said, the law doesn't specify whether the penalty applies to the farmer or to the land. If the land is sold, would a new owner get an exemption?
It might seem counterintuitive to offer exemptions at all. If something isn't safe, it isn't safe no matter what size your business is, right? But Dr. Luke Laborde, a Penn State food science professor and food-safety expert, said there's a reason for the way the law is written. Most foodborne illness scares in recent years have happened when large producers shipped tainted goods all over the country, making it hard to trace the goods' origins and recall them quickly. A small producer selling out of a farmers market booth isn't shipping goods nationwide, and if a customer gets sick, it's pretty easy to trace where the tainted produce came from.
Some distributors, such as Consumers Produce in the Strip District, have seen this legislation coming and gotten ahead of the curve. Alan Siger, chairman of Consumers Produce, said his business uses a fairly sophisticated computer program to track which grower, field and lot every box of produce came from. And the company stages periodic mock recalls to verify the program's effectiveness, he said.
Money, money, money
Most experts we spoke with said farms and food processors will have to spend more money to comply with the law.
Penn State's Mr. Bucknavage says the biggest thing that will change for the food processors he works with is paperwork: "The law does require that companies have a food-safety system in place," which will entail "writing procedures down, documenting things they're doing and verifying that the things they're doing are working."
But he's more positive about the law than some people: "I think it's worthwhile. It makes companies perform to a higher level ..."
Other experts were skeptical because of the price tag.
"In August and September, time is a valuable commodity," Mr. King said. Keeping detailed records -- and training all his employees to do the same -- will represent a big investment of time, and consumers "will see the price of fresh fruits and vegetables go up" across the board.
Mr. McQuiston agreed: "All I see is dollar signs up and down the line," he said. "Family farms don't have human-resources departments" to do employee trainings and documentation, he said. "It's us -- Carolyn [his wife] and me -- sitting here in the office" after a long workday, trying to comply with the law.
Consumers Produce has spent about half a million dollars in the last four or five years to improve its traceability software and record-keeping, Mr. Siger said.
As Dr. Laborde noted, most farmers follow good food-safety practices already, and many grocery chains and other distributors already require suppliers to get third-party audits. So following the new law won't represent a huge change in what they do. But "the part that a lot of people are having trouble with is documentation," he said.
So he's working on templates farmers could use for record-keeping. He likens his task to taxes: Most people don't sit down and read thousands of pages of tax code; they just fill out a tax form and pay their taxes. He hopes his templates will be like tax forms farmers just fill in.
But even Penn State is biting a financial bullet. Dr. Laborde's department hasn't received any extra funding to develop those templates or stage trainings.
And the FDA itself will face a funding challenge, Dr. Laborde said. It will be tasked with inspecting farms, but because this is an "unfunded mandate," no inspectors will be added to the FDA workforce unless some provision of the law changes.
In Mr. Bucknavage's opinion, that's not so bad because farms and food processors will be largely self-policed.
As the changes begin to take effect, Mr. Snyder wonders what it will mean for the local-food movement that has grown so popular.
"I don't want to see what is really a burgeoning local food movement get lost in all this."
Rebecca Sodergren: email@example.com or on Twitter @pgfoodevents.