Small Farmers Revolt Over FDA's Proposed Food Safety Rules

Another government failure of big government.

Earlier this month a federal judge ordered the FDA to speed up the process for adopting rules under the Food Safety Modernization Act.

That is exactly the opposite of what the agency should do.

The FDA's very deliberate deliberation over the proposed rules foreshadowed the fact the agency lacks the ability to come up with clear and fair rules.

Nevermind the fact that, as I wrote last year, the key provisions of the FSMA have only the potential to bring about up to a "four-percent reduction in cases of foodborne illness" if they're implemented with absolute perfection (at a cost of $500 million each year).

Now that those who will be regulated under the Act have had time to review and consider the FDA's proposed FSMA rules, small farmers–who had hoped they were protected by an amendment to the Act–are panicking. And with good reason.

Sen. John Tester (D-MT) pushed to exempt small farmers from the FSMA's most onerous requirements. The "Tester Amendment," which passed as part of the Act in 2011, was supposed to do just that.

"We won… We won," claimed Tester in a victory lap for small farmers after the Amendment was included in the final version of the FSMA.

But it's those same small farmers and their allies who are now venting that the Tester Amendment has no teeth.

"Small farmers primarily are concerned that they will not be able afford to comply with the rules and that they may not qualify for an exemption," says Lauren Handel, an attorney who represents small farmers and other growing food businesses with Jason Foscolo LLC, in an email to me. "A farmer would not be exempt if his total annual food sales exceed $500,000, even if the vast majority of those sales are potatoes or some other commodity not covered by the rule.

"Thus," says Handel, "there is a significant disincentive for that potato farmer to diversify his business by, for example, growing a small amount of produce for a CSA or farmers' market."

The FDA is hosting a series of public fora on the FSMA around the country. And what small farmers are telling the agency about the proposed FSMA regulations isn't pretty.

Angry New Hampshire farmers turned out in droves last week to oppose the FSMA.

One farmer said testing water quality "would cost him an extra $6,000 a year."

"There was a consensus among the farmers that they are already regulated and that the proposed regulations would not make their food safer," wrote the Manchester Union-Leader reporter who covered the New Hampshire hearing, "but more costly to produce."

Vermont farmers also spoke out against the FSMA at the New Hampshire hearing.

In Maine, farmers told FDA officials that proposed regulations would "impose onerous regulations on small Maine farms with no history of making people sick."

In Maryland, advocates argue the FSMA could spell doom for farmers markets.

And Washington State farmers echoed those on the East Coast.

Newspaper editorial boards around the country have also taken note. Many have been increasingly vocal in recent weeks in warning about dire consequences for small farmers under the proposed FSMA regulations.

The Kennebec (ME) Journal editorial board argued that the proposed FSMA regulations "would put undue strain on small businesses that have been a Maine success story in the last decade."

The editors of the Yakima (WA) Herald, meanwhile, warn that provisions requiring farmers "to test all irrigation water before it touches the surface of any fruit" could spell doom for the state's tree fruit farmers.

They note that while the proposed rules may make sense for fruits grown at ground level (like melons), the rules would force apple farmers and others to purify irrigation water at great expense and with little or no health benefits for consumers.

The Herald's editors point out the likely unintended consequences of adopting such a rule: It "could push smaller family growers out of the industry [and force them to] shift to other crops that are cooked or processed–potatoes and asparagus come to mind–which could alter the market dynamics of those commodities."

Michael Taylor, who heads the FDA's food safety efforts and who was at the Washington State hearing, told a local farmer who urged the FDA not to further burden him and his business not to worry.

"Rest assured, what you're saying is being heard," said Taylor.

But Taylor's I'm-from-the-government-and-I'm-here-to-help routine isn't convincing small farmers and their allies.

"The FDA's proposed FSMA rules would impose significant expenses and paperwork burdens on farmers and food producers," says Judith McGeary, executive director of the Farm and Ranch Freedom Alliance, by email.

"The implementation of the Food Safety Modernization Act, through its burdensome regulatory scheme, will result in the local food system losing market share to corporate giants producing inferior quality food," says Pete Kennedy, head of the Farm-to-Consumer Legal Defense Fund, also by email.

Any agricultural law should favor no particular size of farm and should allow farmers of all sizes to compete with each other for market share. The proposed Food Safety Modernization Act regulations will impose costly and inapt new requirements on small farmers.

Sen. Tester claims to have "won" a victory for small farmers. But right now it looks as if his win may yield nothing more than a bitter harvest.