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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

S. 510 – It is not over until the fat vegetable sings – vegetables say no to Tester Amendment

OK, I admit it – I watched C-Span today as the Senate muddled through speeches and votes on S. 510 – while at the same time emailing suggested language changes on the Tester Amendment to Senate staffers.  I felt that they had addressed my concerns about sales from farms to wholesalers.  Honestly, I am not that happy with either the Tester Amendment or the fact that S. 510 does not actually fund the inspections, etc., that are part of this sweeping reform.  Just a few moments ago, this letter from the fruit and vegetable types, just landed in my inbox.  They seem clear, if Tester Amendment is in, there will be no singing.

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  • Steve Gilman

    Hi Bill,
    Food system-wise it’s REALLY time for a new tune in this country. The following work in progress is the product of a food safety task force working with the National Sustainable Agriculture Coalition.
    There’s much food for thought here — and a clear alternative to the industrialized agribusiness as usual that produces food in all of our names.
    Thank you
    A Sustainable Agriculture Perspective on Food Safety
    Released: November 8, 2010
    What makes food safe? Or, for that matter, nutritious, or enjoyable? Such questions acknowledge the many inherent risks that compromise the availability, diversity, quality, wholesomeness, cleanliness, and affordability of food, making it less safe, secure, or sustainable.
    We enter this conversation as partners in the rapidly growing constituency of local and regional food systems across the United States. We are farmers and food-related business of many shapes and sizes, committed to providing the safest food possible without increasing the potential for adverse unintended consequences. We see ‘food safety’ in the context of many other risks to our shared food systems.
    As citizens and as stakeholders, our commitment to food safety is informed by our concerns about:
    • The long-term loss of topsoil, species diversity, natural resources, opportunity for farms and rural communities, and choices for consumers
    • The public health consequences of industrial chemical and pharmaceutical use on and off farms
    • The long-term effects of implementing inadequately tested and controlled technology
    • The concentration of wealth, power, and control of production in the hands of fewer and fewer players in the food system
    • Private ownership and patenting of seeds and other production technologies
    • A widening gap in the connection between many citizens and the sources of their food
    • Instances in which farmers are disregarded or demonized, in particular by other farmers
    • The measurable but unpredictable impacts of the industrial model applied to agriculture
    We believe that many answers to these concerns and to general food safety risks can be found in holistic approaches and ‘bigger picture’ solutions. We believe that everything is connected, and that as a consequence our global food system affects family farmers, communities and diverse species of plants and animals all across the planet. We claim our place at the table in every current and future discussion of these and other emerging issues involving our food system, its health and impacts.
    We assert that our observations and sensibilities are economically, culturally and socially relevant, and accept responsibility to support a process of dialogue in which all viewpoints are respected and considered, including especially ‘minority’ viewpoints. We expect discussion to reflect a commitment to what’s best for everyone, not to who is strongest, richest, or most powerful.
    In this light, we support:
    • A concerted and cooperative effort from all players, with renewed emphasis on consumer involvement and shared responsibility
    • Significant training, outreach and support for implementation of proven best practices including understanding of on farm risks and control methods
    • Responsive local, state and federal governments at levels appropriate to the level of risk
    • A strong scientific lens that embraces holistic, integrated and contextual approaches, as opposed to a narrow view that only relies on reductionist thinking or worshipful assumptions about science and the industrial food model in general
    We commit to proactively working with farmers and all players in local and regional food systems to reduce the risk not only of pathogenic outbreaks, but of other risks to the environment and our health, while upholding the quality, freshness and transparency that consumers deserve. We offer the following guiding principles for achieving safe and healthy food systems.
    Sixteen Food Safety Tenets for Sustainable and Healthy Food Systems
    Food safety is just the tip of the iceberg of true good agricultural practices. Before us are critical questions about how to feed a growing population with healthy, safe, fresh and affordable food on dwindling resources while improving quality of life, the environment, opportunities for farmers, and choice for consumers. Will sustainability be a market advantage or a precompetitive expectation of all foods and farming systems? What minimum standards of sustainability and safety will be acceptable in order for a product to enter the marketplace? How will these standards be assured? What are the relative roles of government and of private, voluntary initiatives? These conversations are ongoing and will continue for many years. The following principles with regard to food safety reflect the thinking of local/regional food system participants from across the United States:
    1. Food safety is noncompetitive and transparent. Everyone who lifts a fork has a right to safe and healthy food, just as they have a right to choose foods based on the qualities most important to them. ‘Food safety’ should not be a competitive marketing food-trait, lest the most vulnerable people end up with access to only the least safe food, or simply fewer choices. Every person has a right to expect the safest possible food, and a right to absolute transparency about its production processes, no matter what they can afford to pay for it. Completely open, public information about what makes a food ‘safe’ is not negotiable.
    2. Effective food safety strategies must be global in reach and effectiveness. ‘Think globally, Act locally’ means that we are all connected, and the consequences of any strategy or intervention must be considered in the context of a global network of relationships. Threats to food safety in any given locale can originate globally. Likewise, the livelihoods of farmers all over the world can be threatened as a result of ill-considered action in any particular locale, region, or nation.
    3. Assessment and reduction of risk is at the core of assuring food safety, at every level. All participants in agriculture must be effective assessors and managers of risk. This is made possible through training, education and empowerment of all farmers and farm workers to understand the risks that can enter the process at critical points existing in their operations.
    4. Total elimination of risk may be an idealized goal, but is unachievable — food safety requires constant vigilance and continual improvement. Statements about “zero tolerance” make good public relations copy but are a distraction from the real work of minimizing risk. The changing and interactive nature of microbial pathogens, farm chemicals and other residues of industrial production, coupled with changing human immune tolerances, make grandstanding over ‘zero tolerance’ and ‘eliminating risk’ unrealistic and misinformed.* Eradication of pathogens is a scientifically impossible goal, the pursuit of which often sacrifices localized, mid-scale processing capacity. Effective minimization of risk is a more appropriate expectation as compared to the false hope promised by zero-tolerance strategies.
    5. No raw food product is inherently risky in and of itself. Risk is an equation with many variables, including the method and manner of production, handling, processing, distribution, delivery and preparation. There is no ‘dirty dozen’ with respect to food. The life cycle of a food product, how it is treated throughout all of the stages from production to consumption, is the prime driver of the level of risk that product may carry forward to the end consumer.
    6. Concentration in and of itself carries tremendous risk. Food processing and preparation is often done in concentrated facilities, sometimes several days, weeks or months prior to a “use-by date.” Food is then shipped all around the nation and the planet. The risks inherently associated with this far-reaching chain of activities have not been adequately explored, contributing to the tendency to pass responsibility back to farms and farmers. The consequences of concentration and global distribution need to be fully explored and integrated into risk assessment and enforceable food safety best practices.
    7. Food safety begins at the farm, on every farm. All farms, farmers, and farm staff, from the owners to the most transient farm helpers, have a role in producing safe food. Respect for farmers and concerns of farm workers is a critical foundation of any food system, and is essential to building and maintaining customer confidence in our products.
    8. We are all responsible. Along the paths from the farms to individual kitchens, food can change hands, change ownership and form many times. At every turn, risks are introduced that far exceed those resulting from most on-farm activities. Public health requires awareness and effort from each of us, even in our own kitchens. Ultimate vigilance at the farm will not demonstrably reduce risk further along the supply chain. Efforts to unnecessarily push concerns back to the farm often hurt farmers and do little to assure food safety.
    9. We cannot test our way to acceptable food safety. Testing along the chain of food production and distribution yields data necessary for the understanding and abatement of systemic risks. Data is needed from many critical points along the food chain to support scientific inquiry, continuous improvement and better practices. However, over-emphasis on testing disproportionately burdens smaller producers and processors while yielding only marginal results. In an equitable food system, testing is not a “cost of doing business,” but a public health requirement, and should be funded and administered in a way that does not unduly increase the negative impact on smaller operations.
    10. Effective policies and practices are rooted in science and proven systems of production. An open, ongoing and transparent scientific effort to understand risks and alternative interventions is needed. The reality of an ever-shifting landscape of microbial pathogens, in which new risks emerge regularly, requires open-minded scientific inquiry and sharing of research on best practices. Scientific concepts such as vegetative buffering, the effects of biological diversity, and the potential for diverse, beneficial microbial populations to act against pathogenic microbes, deserve equal consideration alongside traditional, reductionist, “search and destroy” approaches.** In pursuing evidence-based solutions, we cannot afford to leave any stone unturned or ignore the stones turned over by any solid scientific effort.
    11. Food safety includes chemical and physical hazards, in addition to food-borne pathogens. While the major focus of food safety is often the reduction of health risks associated with microbial, food-borne pathogens, solutions must also address physical hazards posed by chemicals, antibiotics, and other processing and packaging residues. Though such hazards may have slower, longer-term effects than microbes, they often pose more expansive threats and cannot be ignored in a comprehensive food safety strategy.
    12. HACCP as used in food processing facilities is not appropriate on farms. Although risk is managed and reduced at critical control points, true HACCP is most valuable when applied to controlled environments such as manufacturing plants. Farms are biological systems and have few uniform ‘control points’ where HACCP can be relevant or effective. However, HACCP can provide a valuable framework for systematic thinking in the development of any on-farm food safety plan, and in risk management training programs.
    13. Federal efforts to enforce minimum standards of food safety must be integrated and respectful of state and local government stakeholders. Establishment and enforcement of baseline standards, especially in areas of greatest known risk, is an important responsibility of government. Federal, state and local agencies need to work together in a consistent fashion to tailor enforcement that is appropriate and effective in light of local and regional realities, reinforcing a multi-stakeholder process of continuous improvement.
    14. Government intervention alone cannot achieve absolute protection of public health. Unless we are to cede to our government unlimited resources along with abdication of our civil liberties and freedom of choice, government entities cannot guarantee safe food by themselves. Support of a democratic, small-business-friendly food system will require many other effective layers of ongoing activity and cooperation in addition to government intervention. The role of government regulation should be limited to those loci of risk that are most universally understood and far-reaching in impact.
    15. Overextended regulation and intervention will harm all players in the food system. Adding disproportionate expenses to farms and food producers that already depend on slim margins will reduce opportunity and create barriers to entry for producers of all scales. Overextended regulations will undermine private and voluntary systems of training and continuous improvement, and will undermine any sense of “shared responsibility” among all food-system players, ultimately harming the public the regulations purport to protect.
    16. A healthy societal attitude toward risk is essential to understanding and achieving a safe, secure, and sustainable food supply. It is in the very nature of risk that it can never be eliminated altogether and often increases in unintended places when reduced in others. The many routine risks in daily life far exceed those associated with ingestion of any food or encounter with our modern food system. This does not excuse any actor from responsibility to do the best possible job in bringing safe food to the public. However, it serves as a reminder that the cost-benefit ratio can easily turn against public well-being and must be closely observed. Sustainability is a progressive attitude affecting not only the production, processing, and marketing of food, but also its consumption and enjoyment. Such an attitude would suggest that the reality of “safe, clean food” exists largely in the increasingly educated preferences – and pocketbooks – of the beholders.
    *For example, a highly placed official with the USDA Food Safety Inspection Service, when informed that the implementation of HACCP requirements was creating a hostile environment for small and mid-scale processors in his region, responded by saying that “until we eradicate E-coli pathogens, things are just going to be difficult for small producers.”
    ** Serious consideration must be given to those studies showing how liquid manure from CAFOs (confined animal feeding operations) has higher amounts of E. coli 0157: H7 than solid manure from farmyards, and the concentration of CAFO pathogens can more easily contaminate the water and landscape.

  • Wait a second, a diehard Republican (not to mention a physician!)credits trial lawyers as the reason that food safety is steadily improving and no blog from “Bill the Inveterate Blogger?”
    I guess you must have fainted when he heard it, concussed and are suffering from amnesia!
    Oh yeah, isn’t this the same Republican who made a comment about lack of adequate funding for food safety that led to a column about the possibility that you might a latent Republican gene? OK, I admit, that’s a bit more than you wrote.

  • Gabrielle Meunier

    Steve, you have some very interesting points in your article entitled “A Sustainable Agriculture Perspective on Food Safety – Released: November 8, 2010”. On a philosophic level much makes sense, but in application I feel there is reason for worry. The law on the books is over 70 years old that governs food safey. It has been time for change over the last two decades. We can’t wait any longer. Like any bill, when applied all the kinks will get eventually worked out, but if fear stops the Bill from moving along than more people will die needlessly. If I could address parts of #16:
    16. A healthy societal attitude toward risk is essential to understanding and achieving a safe, secure, and sustainable food supply. It is in the very nature of risk that it can never be eliminated altogether and often increases in unintended places when reduced in others. The many routine risks in daily life far exceed those associated with ingestion of any food or encounter with our modern food system.
    In many cases of severe foodborne illness, the consumer was not aware there was any risk at all. If you go to a restaurant, you are aware that if the hamburg is rare, that you are taking risk. If you eat raw meat, you are aware of risks. If you buy directly from a farm, you would chose a clean one — as you consider the risk. But this does not hold water for most food we consume on a daily basis. The general public assumes that their food has gone through a myriad of safety systems and arrives to them as “safe”.
    My son was severely poisoned by packaged peanutbutter crackers. Our lives will be changed forever because of this experience. Never in a million years would we have thought there was risk ” to eating a packaged cracker product.
    Our foodsafety system desparately needed overhauling. Please let S. 510 pass and lets work out the kinks.
    Thank you.

  • Smile.

  • Gabrielle, your statement, “The law on the books is over 70 years old that governs food safety,” repeats one of the boiler plate arguments of supporters of S 510.
    First, it is NOT true. The original FFDCA was passed in 1938 but the current law of the land is vastly different from that law. Simply go to http://en.wikipedia.org/wiki/Federal_Food,_Drug,_and_Cosmetic_Act and read the names of some of the many changes. Then click on some of those amendments, like Food Quality Protection Act of 1996, PL 104-170 (Aug. 3, 1996), and learn about the updates.
    This argument is like saying that our Constitution hasn’t been updated since the Bill of Rights and overlooking that fact that women don’t have the vote.
    Second, this argument obscures the fact that the FDA’s authority also comes from the Public Health Service Act (PHSA). In fact, that FDA is currently asserting the PHSA as its authority for control of all intrastate food whereas the FFDCA carefully restricts it almost entirely to interstate food.
    Third, nothing in S 510 would have stopped the PCA tragedy. It happened because of fraud and the failure of the FDA to use its existing power appropriately. Similarly, the Wright County Egg outbreak was because of the failure of the FDA to use its existing power. Only Dr. Coburn is addressing the problem of poor performance by the FDA. No law can be fully effective unless it is properly enforced.
    Fourth, it upsets me that people, like you, who have gone through so much do not the full story so that you can work for the changes in our regulatory system that will actually make a positive difference.
    I will be happy to discuss all of what I have written and what S 510 actually is if you will write to me at healthyfoodcoalition@gmail.com.

  • Steve Gilman

    Hi Gabrielle,
    I’m very sorry for your son’s illness. Ever since a friend went through a bad bout with salmonella from eggs a few years ago my eyes have been further and further opened to the dangers of food contamination in the marketplace. The whole peanut outbreak came as quite a surprise for me as well, as the notion that processed products could be unsafe introduces a whole new concept (and level) of risk in the food system.
    And as we’re realizing the problem is actually MUCH bigger than microbial contamination events — many of the industrialized food processing processes from BPA in can liners to myriad unidentified food contact substances used in processing — as well as global procurement practices at the lowest prices — make this food sector just as suspect as meat or fresh cut greens.
    The task force that is working on the Food Safety Perspective document above DOES support S.510 and are working hard for its passage. We are happy that some farm scale-appropriate language has made it into the Manager’s Package and are thankful for Senator Stabenow’s addition of funding for training and education for smaller scale farmers. Along with the face to face relationships with their customers, farm families are often the preliminary eaters of their farm’s produce — and certainly have a vested interest in doing the right thing…

  • All these words. But the operative word is believe…Giving the government the power to believe something and that is the law. It’s in S.510. King of the FDA and Monsanto minion soon to be Food Czar Michael Taylor. He is very silent thur out our suffering. GMOs? Pesticides? Fluoridated water?…doesn’t anybody do anything, but believe the Gov., and watch Dancing with the Stars… Oh that’s right, everyone is too busy working to give half of their life’s blood and energy to this atrocity..
    Go to my web site and see all the ranting and dissecting, of this treasonous conspiracy. The revolving door is the nice name.
    While all this is going on in that hand no one sees the other bill for this Lame Duck session to pass…The one that takes over all the water in every stream, lake, river, pond essentially the rain. Which because of Monsanto is not a reality…Dead soil with no life in it has no moisture for the sky to draw up for the formation of clouds that rain..
    Yes, Monsanto and their minions of the revolving door. The ones to be hanged for high treason for conspiracy against the United States of America.
    I am done with thinking the Gov. knows more then me and stay silent for our security…All the turmoil in this world has risked our security. This turmoil was instigated by the US Authorities.
    We must make haste for our time for true freedom is put into our very own hand, the hand of the common man.
    Wake up http://fightforyourhealth.blogspot.com

  • Doc Mudd

    Manifestos and conspiracy theories.
    More woo and less food science.
    Better stock up on Pepto Bismol and toilet paper – these ‘grassroots’ food safety amateurs will keep us perched gingerly on the toilet with their dreamy blind faith notions and their twisted misinterpretations of risk and risk management.

  • Gabrielle Meunier

    Hi Harry and Steve. I’d like to address both of your responses to my above comment. Sorry it took so long, but I have been busy working so that I have the money to buy, hopefully, safe food to feed my family! First of all to Harry, I apologize for using “boilerplate” language in my response. Yes, this is true. You see I went to DC and explained my story (my experience of my young son being severly poisoned by peanutbutter crackers) to some very intelligent people. These people were my and your elected officials from various different states. They were Republicans and Democrats alike. People like the Honorable Senator Chambliss and Senator Patrick Leahy, and Senator Tom Harkin, and the late Senator Ted Kennedy. I trust that they spent countless hours and consulted with various experts to put together the best food safety bill that they could come up with. And while I consider myself intelligent, the problem is I work countless hours to make a living and I do, indeed, trust my elected officials that they know what they are doing and have worked very hard to right some wrongs — to improve food safety in the U.S. I have also heard from various Epidemiologists and experts in that field glorify this bill because there is such a huge need for this bill. When I went to DC and testified to the Senate Ag committee I complained about the CDC and the FDA alike. I can only speak to my experience. I have to believe that if the fix to our foodsafety issues were just to improve the FDA, that would have been done. Ah if it were only that simple. What I witnessed in my foodborne illness ordeal was an entire foodsafety system that seemed archaic and outdated. Not just an agency. It was the lack of collaboration. It was the lack of use of technology (a big one in my opinion). It was the lack of proper traceback. What I witnessed in my very limited experience of our nation’s foodsafety system, was an entire system that needed overhauling. You may read my entire testimony by logging on to the U.S. Senate Agriculture committee’s hearings on Feb 5th, 2009: http://ag.senate.gov/site/calendar.html . So while I must admit that I don’t have a lot of time to become a bonafide foodsafety expert, I can speak to my experience. I believe that S. 510 would, indeed, prevent PCA from becoming a rogue manufacturer of Peanut products. I believe that foodsafety had become lax and not taken seriously. And while there may have been updates to the 1938 law, I don’t believe the FDA had the power nor the authority to overhaul the system. What I have heard from the FDA authorities is that they have not had the mandate, nor the authority nor the funding to properly do their job. I can’t tell you if that is true as I do not work for the FDA. I trust that they go to their job everyday just like I do, and try to do the very best job that they can. But again, I don’t think the foodsafety issues in the U.S. fall onto one agency, I believe it is shared by many state and local and federal authorities to work together with producers of all sizes and the public alike to improve foodsafety in this great nation. I believe HR. 2749 and S. 510 address the complicated system of producing food and the complicated traceback and disease outbreaks that can result. I believe that to shout from a soapbox that the sky is falling is sad because I don’t think it will produce the needed change. Never could I have imagined the devastating impacts of unsafe food has had on countless lives. The statistics are staggering. The sadness is staggering. Please visit http://www.safetables.org for a reality check on the devastating effects of foodborne illness. In a society like ours, to not have a better foodsafety system is depressing and I believe we can do better. Senators Harkin and Durbin and Chambliss also believed this, and wrote S. 510. I trust that all the years it took to get this bill finally written, gave this bill the knowledge and the expertise needed to improve our entire system.
    And to Steve, thank you so so much for being a supporter of S. 510. I really couldn’t decipher that from your very interesting commentary. My son works on a small Vermont farm, and I am sensitive to the needs of farmers. I would think we all can appreciate all the points that you have touched on. And although, I wish that all Bills could be everything to everybody, we know that they can’t. I believe this bill is just a starting point for a better foodsafety system for the future. I believe that our government has some basic innate functions and one is to keep our food safe.
    Thank you both and a very Happy and safe Thanksgiving.