Food Safety and Local Food - At Odds?

There's been some buzz lately about how the pending food safety legislation may impact local growers and producers ability to sell their goods. Fundamentally, the argument is that having standards requiring inspection and lots and lots of red tape will inhibit small producers from selling their foodstuffs.

The text of the bill is available here. (Hint - skip to page 121 - that's where the bill actually starts, past all the strike-outs.) The more concerning parts are on pg. 129 - how is a small producer to conduct in-depth analyses of all potential hazards, and, furthermore, verify the effectiveness of their preventative measures (pg. 130)? The bill does grant small and "very small" businesses more time (pg. 139) - while most businesses have 18 months to comply, small businesses get 2 years and "very small" businesses get 3. Still, for a small producer, even a 3 year window to put all of this together may not make it significantly less burdensome. It seems that simply extending the time frame is not the only concession the bill should be making to small farmers.

There's a strong argument, I believe, that the legislation will promote centralization - which is how we got huge outbreaks in the first place (peanut butter factory has salmonella, now peanut butter all over the country is tainted vs. small producer has salmonella and the small community of their consumers is affected).

Small farmers have spoken up, and Senator Stabenow has introduced the Growing Safe Food Act (S. 2758), which purports to teach farmers how to do their job safely, and "stipulates that existing conservation, biodiversity, and organic farming standards would have to be taken into account in the development of any training program receiving funds." I'm all for expanding Extension programs, but it seems like saying "well, we'll educate you, so the bureaucratic burden on you won't matter" avoids the fundamental issue.

Of additional note, having prior food safety regulations in place has not necessarily made us all that safer. Consider pink slime (sounds delish, no?) which has been more widely used as a result of ammonia treatments in processed beef. Ammonia treatments were supposed to virtually eliminate E coli and salmonella from beef products - but has actually led to increased dispersal of parts of the cow known to be more susceptible to contamination.

Don't get me wrong - I'm all for regulation of large producers. But there must be loopholes to provide for small producers or all the work that has gone into developing local food economies may turn for naught. This would be a step backward for the planet and for all of us who like knowing our farmers and eating truly fresh, picked-when-it-oughta-be food.

Antitrust Times Two

Both of these stories have been out for a while, but I think they still deserve some air time.

Seed Control

The Department of Justice announced that it is investigating a potential antitrust claim against seed companies for their essential takeover of U.S. agriculture. Ten companies account for 65% of seed sales with intellectual property implications. Four companies control half of the proprietary market (seeds with IP protections) and 43% of the common market (public and IP protected seeds). Check out the Farmer to Farmer's report here. As if this weren't bad enough, Monsanto itself controls 90% of U.S. grown soybeans and 80% of U.S. grown corn. When you consider how many forms of processed foods contain some form of U.S. grown corn or soybeans, we're talking about an unbelievably large market share.

The AP recently reported on Monsanto's competition-squeezing practices. The AP report notes concern that, if Monsanto chooses to up its prices, all the cheap processed food that we've gotten used to may not be so cheap anymore. (Maybe then people will eat less bad food. Or we'll just be fat and poor.)

In indirectly related news, Grist recently reported that soybean yields have increased to the point that they are now leading to deforestation in the Amazon. We're sacrificing carbon sinks in favor of cheap food additives AND profiting Monsanto at the same time.

Speaking of soybeans...

Dean Foods

(Dean is the owner of WhiteWave, which produces Silk Soymilk.)

While dairy farmers have posted average losses of $180,000 this year, Dean Foods, the largest dairy distributor in the U.S., has seen profits increase by 30%. As a result, a group of dairy farmers in the Northeast have filed a class action suit against Dean Foods and Dairy Farmers of America. The suit alleges that Dean and DFA monopolized dairy distribution, forcing farmers to sell through them if they wanted to remain in the market. Farmers currently make about $1 per gallon of milk, which is only 2/5 of the actual price.

As things get worse for dairy farmers, it isn't only the loss of small family farms that we have to worry about. When farmers don't make any money, they can't afford to pay their workers well. Barry Estabrook just wrote in The Atlantic Online about the plight of dairy workers following the death of a 20-year-old illegal immigrant who was caught in a manure removal conveyor belt.

Whatever the result of this investigation and this suit, they both emphasize the true costs of cheap food.

UPDATE: The DOJ has filed an antitrust suit against Dean for its 2009 acquisition of Foremost Farms. MarketWatch article here.

Administrative Law Judge Enjoins Organic Violator

Promiseland Livestock, LLC, one of the largest organic cattle producers in the nation, has been suspended from the organic market for four years, following the decision of a USDA administrative law judge.

Complaints were filed against Promiseland by the Cornucopia Institute as early as 2005, claiming that the operation was not feeding organic grain to its cattle, was selling fraudulent organic feed, and was "laundering" conventional cattle as organic.

The decision in the case focused on the requirements in the Organic Foods Production Act and the National Organic Program's regulations regarding availability of records. The Act requires that producers not only keep careful records, but also make them available for inspection by the certifying agent, the USDA, and the governing state officials. (7 USC 6506(b)(1)(B).) The regulations further state that records must "[f]ully disclose all activities and transactions" (7 CFR 205.103(b)(2)) and make such records available for inspection and copying by the proper authorities during normal business hours (7 CFR 205.103(c)). The decision notes that Promiseland initially bought time by switching certifying agents and then, despite a large amount of leniency on the part of the inspectors, simply refused to provide the records requested to the inspectors (pg. 5).

The decision states that "operation under the auspices of the USDA NOP is a privilege rather than a right," and that operators cannot defer inspection by invoking advice of counsel, requesting specific schedules of the documents to be inspected, or requiring that a corporate official be present at the inspection (pg. 12). (Side note: what kind of counsel says "no, don't comply with the very specific and clear regulation"?)

In sum, the ALJ, Peter M. Davenport, did not make a finding that Promiseland actually did the things of which it was accused. As he notes, however, the integrity of the NOP program relies almost entirely on record keeping and access by inspectors to those records. This case took several years to resolve, during which time who knows what sort of "conventional" food Promiseland managed to pass off as organic. Good on the USDA for finally taking action.

Pardon the riffing

El Dragon over at Fair Food Fight posted that companies like Monsanto should get ready to face suits from organic farmers whose crops are sullied by GMO seeds. Check out his discussion here.

One major issue, however. The suits from Monsanto against non-GMO-seed-using farmers were patent infringements - Monsanto literally owns the biologic composition of the crops that drifted into neighboring fields. Organic farmers have no such claim, as the organic nature of their crops is not patentable.

Therein lies the fundamental problem. There may not be a cause of action here - at least not one that I can think of. (Fellow legal folk, can you help me out?) We would probably have to look to tort law, but in what form? Negligence? There is not currently a duty of care for GMO farmers to protect the fields of their organic neighbors. Maybe nuisance? Trespass? A Canadian case made the argument for nuisance, negligence, trespass, and pollution under several Canadian statutes. (The case was thrown out for lack of class-action status on the part of the farmers.) I'm not sure if the common law claims would survive, however, or if there's a reasonable statutory provision that can be applied. Barring some form of statutory duty to protect your neighbors crop, or some form of explicit protection for organic farmers the courts may not find the necessary cause of action.

The government is getting tougher on GMOs. In September, the US District Court in San Francisco ruled that the USDA had failed to do the appropriate level of environmental investigation prior to approving Monsanto's Roundup-Ready sugar beets. “The potential elimination of farmers’ choice to grow nongenetically engineered crops, or consumers’ choice to eat nongenetically engineered food … has a significant effect on the human environment,” Judge White noted in the decision (p. 13). A plaintiff in the case, Frank Morton, is an organic sugar beet farmer. He noted that it costs $300 to test his crops for genetic modifications, and if he finds genetic anomalies, his crop becomes worthless. “This industry could be destroying the crop value of organic growers and organic growers would not have the slightest idea they were in danger until their stuff turned up contaminated,” he said. “This is why I made a stink about this.” The sugar beet decision follows a 2007 decision enjoining farmers from planting Roundup Ready alfalfa until complete environmental impact statements are filed. The District Court decision was upheld in the 9th Circuit.

This seems like the more viable route for legal action by organic farmers against GMO contamination. If the USDA begins actually applying NEPA in conducting EIS's of GMOs, including assessments of their potential for crop contamination, organic farmers should get better protection. It may take a few more individual court cases against specific crops under NEPA, however, before widespread EIS requirements are adopted by the USDA.

HFCS - natural?

Dave Babcock at Food Safety News wrote a great article about the legal fights over whether or not high fructose corn syrup is "natural" - and if it can be marketed as such. Babcock discusses the New Jersey case against Snapple's "all-natural" claim regarding their drinks. (Snapple has since switched to using sugar in their beverages.) Some might argue that a sweetener produced in a lab with the synthetic enzyme glucose-isomerase hardly seems natural. Since the FDA decided in 2003 to allow HFCS to fall into the "natural basket" - defined as "nothing artificial or synthetic has been added to a food that would not normally be expected to be in the food" (58 Fed. Reg. 2302, 2407) - Snapple claimed federal preemption of the NJ laws against fraud, and the District Court agreed that the FDA had created "field preemption." The 3rd Circuit overturned and remanded to the District Court. Check out the full article here.

Pesticide study controversy at EPA

The EPA has started requiring increased testing and analysis of various pesticides, including testing of the effects on the endocrine system of various chemicals used in herbicides and insecticides. According to Steve Owens, the assistant administrator of the Office of Prevention, Pesticides, and Toxic Substances, “After years of delay, EPA is aggressively moving forward by ordering the testing of a number of pesticide chemicals for hormone effects. These new data will be carefully evaluated to help identify potential hormone disruptor chemicals.”

The human endocrine system regulates hormone production, which impacts growth, metabolism, and reproduction. For all you'll probably ever want to know about it, click here.

The EPA has released a testing schedule for information from manufacturers of 67 chemicals over the next four months. It intends to use this information as a jumping-off point to determine if further testing of these chemicals is necessary. The testing, which will take place through the Endocrine Disruptor Screening Program, will eventually expand to include all pesticide chemicals. Here's the controversy, though - should manufacturer data really be used as the basis for determining if further study is necessary?

The Office of Management and Budget has issued an order allowing for the results of old industry studies to be substituted for new studies on the impacts of pesticide use on the human endocrine system. Over the course of the last decade, more than 1000 studies have been conducted on the impacts of pesticides on the endocrine system, but some scientists fear that this order may undermine the ability of those scientists to get their results into EPA considerations for possible regulation of the industry.

The EPA claims that a good scientist will be able to tell from the structure of the studies whether or not they're credible. The critical issue here, however, is not that the industry studies will be used at all, but the fact that they will be used in lieu of new studies from (presumably) neutral parties.

Federal Register Rundown, 10/27

The Department of Commerce has requested clearance from the Office of Management and Budget (OMB) under the Paperwork Reduction Act for continued collection of logbooks from fishing vessels in the Northeast region. The PRA is intended to decrease the burden of government paperwork on citizens and streamline the government's use of collected information. (44 U.S.C. 3501). NOAA is required to periodically collect and review logbooks under the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801-1882) in order to properly manage the fisheries. 74 FR 55183.

The Agency for Toxic Substances and Disease Registry (ATSDR) of the Department of Health and Human Services has announced the final data priority needs for six toxic substances: the listed chemicals include guthion, a pesticide used primarily on fruit; dichloropropenes, a type of insecticide used primarily on nematodes; and diazinon, a widely used insecticide. Cresols are also mentioned (m-Cresol is used in certain herbicides). The announcement prioritizes "[s]tudies of developmental toxicity via oral exposure, with emphasis on neurodevelopmental toxicity" for guthion, and "[d]ose response data for acute-duration oral exposure" along with "[i]mmunotoxicity battery via inhalation exposure" for dichloropropenes. Diazinon research related to "[d]evelopmental toxicity data for oral exposure" is prioritized. This call for research is mandated by the Substance-Specific Applied Research Program (SSARP) under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) as amended by the Superfund Amendments and Reauthorization Act (SARA - 42 U.S.C. 9604(i)). The statute requires that ATSDR, along with the EPA create a list of hazardous pollutants, prepare toxological profiles, and ensure continued research programs on their effects. 74 FR 55240-42.

The USDA has amended the regulations for government procurement of certain products, including food-cleaning products. Anti-microbial cleansers for fruits, vegetables, and meats must now contain at least 53% "biobased" products under 7 C.F.R. 2902.45. "Biobased" products are defined by the USDA as those "determined by the Secretary of Agriculture to be a commercial or industrial product (other than food or feed) that is composed, in whole or in significant part, of biological products or renewable domestic agricultural materials (including plant, animal, and marine materials) or forestry materials." (Departmental Regulation 5023-002) 74 FR 55089-94.

In climate change news, the EPA has proposed to tailor the major source applicability thresholds for greenhouse gas (GHG) emissions under the Clean Air Act (CAA). 74 FR 55292.

Finally, the National Marine Fisheries Service has shut down fishing of Atka mackeral in the Western Aleutian District of the Bering Sea and Aleutian Islands management area (BSAI) (74 FR 55159) and fishing for Pacific ocean perch in the Western and Central Aleutian Districts (74 FR 55160-1). These restrictions are seasonally put in place to prevent the fisheries from exceeding their total allowable catches under Amendment 80 of the BSAI Fishery Management Plan.