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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

H.R. 759 Food Safety Enhancement Act of 2009 – Food Safety Legislation – Good or Bad for Small, Sustainable, Organic, Locavores?

There has been much in the way of worry by farmers, especially the small, sustainable, organic, locavores about the new food safety legislation.  I have read the latest version of the draft H.R. 759 and here are some thoughts on its impact on small farmer/producer/manufacturers, as well as some other thoughts.

$1000 fee for all “food facilities.”

This specifically exempts farms, but we get back to the problems of who a food “manufacturer” is that we deal with in our cases.  For example, is a seller at a farmer’s market who washes and bags of cherries that they grew a “manufacturer”?


The industry standard traceability software section could be troublesome, however, Section 107(c)(4) provides and exemption from the requirements for food that is sold directly from farmers to consumers


Will the fact that the bill allows the FDA to require food to be certified as meeting safety standards by foreign governments make food safer?  What about China, for example?  Should we rely on their governmental inspection abilities after the powdered milk crisis?

Also, guidelines for imported foods – importers meeting the guidelines will receive expedited processing if they meet the guidelines.  Section 805 is a bit vague about the impact of this.  Provisions like this typically favor those producers with more resources that are easily able to get certified – favoring big agriculture?  Why is the foreign inspectorate corps funded and staffed at the Secretary’s whim, but the local food safety FDA program is funded by the $1000 mandatory fees?

What about past problems?

As an aside, Section 105(4)(B) states that a company such as PCA would have been a Category 2 “low risk” facility, requiring random inspections as little as every three years.  Would that have prevented the outbreak and deaths?

I’m going to read this again.  Bottom line, it is time for us all to engage on this and the various other bills percolating in the Halls of Congress.

  • Marymary

    I thought that Dr. Acheson of the FDA said that peanut butter was to be reclassified as a “high risk” food over two years ago–after the ConAgra peanut butter salmonella outbreak.
    I think that there should be some exceptions made for small farms, but not so much as to make the law worthless. I’m not keen on the idea of anyone, small farmer or large manufacturer, transporting their food to market in the same unwashed truck that was used to transport the manure that was used to fertilize the garden/farm.
    At the very least some sort of training in sanitation practices should be required of every producer, no matter how small. My experience, albeit somewhat limited, has been that most people, including well-meaning organic gardeners, don’t know anything about foodborne illness and how it is spread. They often focus on obvious filth and vermin, while being completely ignorant that it is the stuff you can’t see that does more harm. Just because something looks clean after you rinsed or wiped it off, doesn’t mean it is clean. Sorry to vent.
    Thanks for the timely and important information on your blogs.

  • Judith

    We’ve been talking about this at our market, and would like to see classes on food safety for market growers along the lines of the canning safety ones done by the cooperative extension service. A certificate from such a course could be a requirement for selling produce at market (or farmstand). The $1000 fee for both Dole and Joe Doaks is risible however.

  • Marymary

    @Judith: That’s refreshing, and not an attitude or approach that I encountered very often back in the day (only a few years ago, actually) when I was an inspector. The extension service offers excellent information. Alas, I’ve known more than a few home canners who choose to ignore the information and/or cut corners, thinking that a little difference here or there won’t cause any harm. Our local extension office does have a person who is trained to procter exams in retail food safety. I don’t know it that is common, however.
    Maybe there could be fees for small producers based upon sales or production. Inspections and requirements should also be based upon risk. It doesn’t make much sense to have Dole and Farmer Joe subject to the same fees, although it may make sense, depending upon what Farmer Joe does, to have both large and small producers subject to the same (or similar) sanitation standards. At the very least, there should be minimum sanitation standards that all producers need to meet.

  • rev

    what about the penalties for not reporting a birth within 24 hours? or the exclusions for mega farms? I’m worried there is a lot of conflicting information out there and so many news outlets do not date stamp their information.