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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

Great quote from Eric Schlosser and Michael Pollan on S 510 – FDA Food Safety Act

“S 510 is the most important food safety legislation in a generation. The Tester Amendment will make it even more effective, strengthening food safety rules while protecting small farmers and producers. We both think this is the right thing to do.”  Eric Schlosser & Michael Pollan

This is from Food Safety News this morning:

The National Sustainable Agriculture Coalition (NSAC) and several other sustainable ag groups have been issuing a last round of action alerts to rally support for the Tester amendment.

“The bill takes important steps to improve corporate food safety rules but it is not appropriate for small farms and processors that sell to restaurants, food coops, groceries, schools, wholesalers and at farm stands and farmers markets,” said NSAC in its alert late last week.

NSAC asked its supporters to call Senators in support of the Tester provision to prevent “one-size-fits-all” regulations from being created.

jpgThe Senate is supposed to take up S 510 Wednesday morning (supported by a number of consumer groups, “Big ag” and grocery interests – arguably problematic). My bet is that if S 510 passes it is not going to pass without the Tester Amendment. However, with the Tester Amendment, the House is never going to take it up before the end of the year because of how broad the exclusion are and because S 510 does not have funding in it either. The House version does not have the former, but does have the later.

I supported the Tester Amendment (see link – October 1, The Tester – Hagen Amendment to S. 510 protects food safety and small farmers) as a mechanism to get the bill moved forward before the election when there actually was a real chance for passage by both Houses and a signature by the President. However, I have very strong reservations about the Amendment on food safety grounds.

Both the House and Senate bills already exclude sales “to restaurants, food coops, groceries, … and at farm stand and farmers markets” from most of the provisions of the bills that primarily relate to large manufacturers. Excluding sales to schools and wholesalers really makes no sense at all. Setting schools aside for a moment (although I think we all should care about the safety of the food our kid’s get), excluding sales to wholesalers is a huge food safety loophole.

It was selling spinach wholesale from a small, organic farm that caused the 2006 spinach outbreak. Twenty-five acres of an organic spinach farm sold to a wholesaler, who sold to a manufacturer. The fecal contamination with E. coli O157:H7 was introduced at the spinach farm and amplified at manufacturer.

My feeling is that if a farm seller (small or large) puts his or her product into the wholesale market, they have to play by the same food safety rules as the large players. When it comes to food safety – “one size should fit all.” 

We missed a once in a decade opportunity.  Once the Republicans take control of the House in January, food safety legislation is, well, toast.

  • Gabrielle Meunier

    If S. 510 does not pass with or without the Tester Amendment it is a sad reflection of our Governed state. It helps guarantee your firm and firms similar a future stream of business.

  • Steve Gilman

    Hi Bill,
    I’ve got to take issue with your depiction of the farm fingered as the root cause of the 2006 spinach outbreak as being “organic” — below my comments is quoted from the USDA periodical “Amber Waves”…
    While I fully agree that ALL farms and facilities must engage in scale appropriate food safety practices, I can only add that farm in question was in transition to organic and therefore not certified and therefore not “Organic”. In fact, even though the spinach was processed by the biggest organic leafy greens processor, Natural Selection — it was marketed under the Dole brand — and not their Earth’s Best organic brand.
    Also, as the contamination investigation was initiated well after that day’s harvest there are still a lot of unconnected dots and unanswered questions. What’s clear is the outcome: people in 26 states were severely affected from a single processed batch of co-mingled baby spinach from several farms that was packed in bags with a 17 day shelf life and distributed throughout the US and Canada. Clearly the industrialized food system has major inherent risks because of it’s potential impact on large numbers of people that need to be specifically addressed.
    Finally, both S.510 and Tester have thresholds for when a farm becomes a facility — and farms that co-mingle or wholesale over 50% of their production automatically fall under full FDA oversight as processing facilities…
    Thank you,
    Steve Gilman
    ……………………………………………………..
    “Records of Natural Selection Foods showed that four farms supplied spinach to the contaminated batch of bagged baby spinach. Eventually, FDA narrowed its focus to one farm and concluded that the problem probably originated there from field-level contamination. There were also factors that may have led to the possible spread of contamination at the processing plant. Unfortunately, FDA could not determine exactly how the spinach became contaminated; even with rapid detection of the outbreak and a quick traceback, FDA arrived at the fields and processing facility 1 month after the contaminated spinach had been harvested and packed into bags.
    The contamination was traced to a load of spinach from one 2.8-acre field packed at one processing facility on August 15. This field was part of a 50.9-acre parcel of land leased by a firm for leafy green production; the owner of the ranch used the rest of the property for grazing cattle. The leafy greens were grown with organic methods, but since the fields were only in the second year of the 3-year transition to organic, the spinach was sold as conventional. Organic, as well as conventional, operations must address the threat of microbial contamination. According to the California Food Emergency Response Team, the grower did not contract for a third-party audit for compliance with FDA’s voluntary food safety guidelines before the 2006 growing season began. Potential environmental risk factors at or near the field included the presence of wild pigs and irrigation wells near surface waterways exposed to feces from cattle and wildlife. The outbreak strain of E. coli O157:H7 was identified in samples of river water, cattle feces, and wild pig feces on the ranch; the closest contaminated sample was just under 1 mile from the spinach field. But the precise means by which the bacteria spread to the spinach remains unknown.

  • Bill Anderson

    Perhaps if you want to pass food safety legislation, you should re-evaulate your exceedingly narrow-minded conception of food safety, Bill Marler.
    Here is what I would suggest needs to be done:
    Foods produced from GMOs (including corn, soy, sugar beets, etc… and milk from rBGH treated cows) need to be banned, or at minimum, prominently labelled with consumer warnings.
    Ban or minimize the use of toxic pesticides and chemicals in raising crops.
    An end to feed lots and the abuse of anti-biotics on factory farms. Raise all animals on pasture, and minimize the amount of grain fed to ruminants.
    Decentralize and diversify food processing. Large centralized industrial food production tends to amplify problems in the food system.
    Promote positive bacterial pressure and strong immune systems. The best means to control pathogenic organisms is to have robust communities of good bacteria, both in the enviroment, in the food, and in the human gut.
    These are but a few suggestions for a safer food system, all which run in direct contradiction to the goals of SB510 — the centralization, corporatization, and FDA/Monsanto/bio-tech fascism in the food system.
    Do we really want the Dept. of Homeland Security running our food system? That is really really scary. I do not trust the U.S. government AT ALL to run our food system, because they are totally controlled by corporate agri-business interests.
    If this food safety legislation passes and is successful implemented by the goons at FDA, it will be the end of sustainable agriculture and real food in America. Our children will be eating a diet of nothing but highly profitable synthetic phoods made by the same few bio-tech corporations which already control FDA. That is unless we stand up and engage in open and widespread civil disobediance against this fascism you are promoting.

  • http://www.marlerclark.com/wmarler.htm Bill Marler

    Steve, true, the farm was transitional organic – 2 of 3 years. The farm also had pig intrusion and pigs in that area and cow feces tested positive for the exact PFGE strain of E. coli that killed 5 and sickened another 200. It is a farm like this that the Tester Amendment would exclude from FDA oversight. My thought is that farms that sell to wholesalers for mass production should play by the same rules.

  • Curious George

    Maybe Bill Anderson is right. Since we can’t trust the government or any large food companies, we should only buy from small, individually-owned food makers, like Bill Anderson and his cheese business. It’s people like Bill Anderson that will keep our food system safe.
    The question is, how many people would actually trust someone like Bill Anderson, a individual who spends his day spewing conspiracy theories, with producing food for their families?

  • http://www.marlerclark.com/wmarler.htm Bill Marler

    Young Bill – I do agree that my focus is on food that can kill you in days as opposed to over a lifetime. Part of that is simply that the science of proving cause and effect between some of your fears and actual results is a bit spotty. I do believe that consumers must be made aware of all products in food. I am sure you are aware of my work in dealing with non-O157′s and ammonia – but, perhaps not.
    By the way, do you have any studies that have been done of the likely impact on how we feed 9B people under your hoped for food production ideals?

  • Dan Cohen, Maccabee Seed Co. Davis CA

    I thought Bill Marler’s comments were un-artful, sloppy and, as a supporter of Tester-Hagan, untimely. But there is one narrow sense in which he is completely right. If the Food Safety bill had included language that any farm of any size had to be registered and regulated under special federal rules to sell into use by the precut/freshcut containerized or bagged market, and anyone processing for that market had to buy only from such registered and regulated producer/farmers, I would completely support such language. That goes for a 1/4 acre producer of arugula flowers or a 20,000 acre super farm, foreign or domestic. That goes for all the production on their farms and operations and controlled entities.

    But processors and handlers have never wanted to admit their major responsibility for produce outbreaks, and seem to see the Food Safety bill as a way of consolidating their already dominant market position. In this they have been inexcusably joined by some consumer group leadership and staff, all of whom will pay a price in credibility.

    The time of greatest danger in food safety for both farmers and processors seems to occur when trying to deal with rapid growth, losing the controls that worked at a smaller size or slower pace of operations. This can also be the time of greatest danger to economic viability, and the two dangers interact. This was a major factor in the spinach outbreak.

    Precut has created a uniquely hazardous environment for produce. Cleaning up the processors, handlers, and farmers who participate in this market would have made a better focus for improving produce safety– and cleaned up almost all of the wholesale market as a side effect. But that was not the focus of this bill. Tester-Hagan reduces the punishment of the innocent for the benefit of the guilty, in my view.

  • Marymary

    Smaller size does not mean that controls are in place. Small and local can be unsafe, also. Anyone who has worked with small producers and with locally-owned retail food establishments can tell you that the owners and operators are often both ignorant and defiant. That’s a potentially deadly combination in the realm of food safety.

  • http://rockyridgeranchspokane.com Gary M. Angell

    I am one of those small producers. I don’t think I am ignorant, stupid or defiant. In fact I have a Masters Degree and several other undergraduate degree. Since the beginning of this nation we have had the freedom to farm, produce and buy food from whoever we want without government permission or intervention. It has been a traditional right!
    I trust in the inherent intelligence of people to make their own choices on food purchases and suppliers when they have a choice to purchase direct from a local farmer or food producer and processor such as a privately owned small farmer, restaurant or grocery store. What’s the food safety net in this realm? Simple, If the food is bad, unhealthy or poisenous and a health hazard occurs the small producer is soon out of business as the consumer will know where the bad food came from. In fact I am not aware of any massive food hazards to the public from any of these relationships. In spite of this local Food Safety and Health Inspections and permits are common. I believe that most Americans want to preserve this process as a basic liberty and freedom and don’t want the Federal Government intervening.. I call this “The Face To Face Food System”
    All the great failures of food safety that result in disease, illness and death of large groups of consumers seem to come from mass produced, processed and distributed foods where responsibility is segmented throughout the production and marketing system and rarely is any individual or group ever held accountable for unsafe practices. This allows management the freedom to focus more on mass production efficiency, sales marketing, overcoming competition and higher profits. Oh, and also lobbying government to keep things the way they want it! Although more food may be produced at lower cost; factors such as health, quality, natural nutrition, freshness, diversity, environmental , social and animal welfare all suffer. We need regulation on this level of production because natural checks and balances at an individual level no longer apply.
    Produce a Food Safety Bill that understands this and it might have a chance of acceptance by the people!

  • Gabrielle Meunier

    Gary, I’m sure there was no insult intended above regarding small producers. However, while the consumer who buys directly from a farm can do so at will and will be able to continue to be able to do so under S. 510, I do feel that when a consumer buys products from a “grocery store” that the producer should follow all the demonstrated “safe production standards” as every other producer, big or small. S. 510 protects the small producer as well as the large because when there is a foodborne illness outbreak and an associated recall, all producers big and small are financially impacted. If everyone was operating under the same guidelines, it creates more of an equal playing ground and hopefully all producers will be more protected in the end.

  • http://www.dropshippers.co.za/Other-Media-Player.html Other

    The FDA was also granted authority to approve any health claims about a particular product before it could go to market. Other