FDA’S Food Safety Rules

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YOUR WORK HELPED CHANGE USDA’S POSITION ON ANIMAL ID! NOW WE NEED TO DO THE SAME ON FDA’S FOOD SAFETY RULES

In March of this year, the U.S. Department of Agriculture’s (USDA’s) final rule on “Animal Disease Traceability” went into effect. In brief, the final rule requires official identification and some form of documentation when adult beef cattle, dairy cattle, or show cattle cross state lines. Metal ear tags, brands, and other forms of low-tech identification are included, and there are several exemptions and provisions for flexibility. There are also requirements for poultry that cross state lines, but hatchery chicks do not have to be identified. Sheep, goat, swine and horse owners will face few, if any, new requirements. The rule is explained in more detail in the second half of this article.

Even though the final rule is relatively limited, it is still objectionable. Fundamentally, the USDA never provided a solid basis for why any new rule was needed. While traceability is relevant to animal health and disease issues, it comprises only one small part of an overall approach to animal health. And identification of animals by producers is only one part of traceability. We repeatedly asked USDA for data on such things as the number of failed traces and the reasons for those failures, but the agency provided only anecdotal incidences in response. The lack of firm justification for the new regulation is troubling.

Nonetheless, in practical terms, it is remarkable to consider how far the agency came from its initial proposal. In 2005, the USDA released plans for the National Animal Identification System (NAIS). The plan had been developed by a group of big agribusinesses and high-tech companies in order to promote international trade by creating comprehensive international standards for tracking animals. The NAIS plan called for every single person who owned even one livestock animal, even just a pet donkey or single chicken, to: (1) register their property; (2) tag each animal individually, in most cases using electronic forms of identification such as microchips or RFD tags; and (3) report a long list of events from birth to death to databases that would be run by private corporations and accessible by the government. The agribusinesses had already been working on the plan for several years, and it had significant momentum behind it. Many people thought the program was unstoppable and that it would be fully implemented by 2009.

The incredible burdens and intrusion of the NAIS plan helped bring together people from diverse backgrounds and beliefs: organic farmers and conventional ranchers, full-time producers and homesteaders, property rights activists and sustainability advocates. A coalition of organizations, including the Weston A. Price Foundation, worked together, initially delaying and then ultimately killing NAIS. In February 2010, Secretary Vilsack announced that USDA was abandoning the plans for NAIS.

Secretary Vilsack’s announcement, however, warned us that the fight was not over. While withdrawing NAIS, he also announced that the agency would work on a replacement plan. The secretary promised that the new plan would focus on low-tech forms of identification and only affect those crossing state lines, but we did not rest easy.

Our concerns were justified by the proposed Animal Disease Traceability Rule that USDA published in 2011. In practical terms, it would have established requirements that could only be met over the long term by using electronic tracking and databases. It also would have required the tagging of the hundreds of thousands of day-old chicks that are purchased by farmers and backyard poultry owners every year. The proposed rule included burdensome requirements for animals going directly to slaughter, as well as creating ambiguity (and therefore the risk of unfair enforcement actions) for dairy cattle owners and horse owners.

WAPF and others called on the grassroots to mobilize again, and thousands of people across the country responded with comments to the USDA opposing the new proposed rule. In support of the grassroots efforts, a coalition of organizations worked at the agency level, both at USDA and the Office of Management and Budget.

While the program was not stopped, the final rule issued by USDA addressed the majority of the concerns raised by livestock owners. Before discussing the details, it is important to recognize the scope of this rule. There are no requirements imposed by this rule for any type of movement within a state; it only applies when animals cross state lines. Even when an animal crosses state lines, there are no requirements for premises registration or electronic identification.

Under the final rule, unless otherwise exempted, livestock moved across state lines would have to be officially identified and accompanied by an interstate certificate of veterinary inspection or other documentation, such as ownershipper statements or brand certificates.

In practical terms, sheep, goat, and pig owners will not be subject to new requirements; the rule refers to the identification requirements under existing disease control programs for these animals. Similarly, horse owners have already been identifying horses that cross state lines due to equine infectious anemia programs and will face few new burdens in practice. Horses that are used for transportation interstate, such as by horse and buggy, are exempt from the requirements, one of the changes from the proposed rule. The final rule also clarifies that a physical description qualifies as an official form of identification for horses without needing approval from state officials.

MAIN IMPACT

The main impact of the rule will be on cattle and poultry owners. For cattle, the rule requires identification and documentation for beef cattle eighteen months or older, dairy cattle, and show cattle that cross state lines. In response to public comments, the agency made several changes to reduce the burdens imposed by the rule:

1. Cattle going to custom slaughter are exempt regardless of whether the meat will be consumed by the person moving the cattle or by someone else;

2. Cattle going direct to slaughter at inspected slaughterhouses can be identified with just a backtag, rather than a permanent form of identification;

3. Brands, tattoos, and breed registry certificates are official forms of identification as long as the shipping and receiving states agree;

4. The definition of “dairy cattle” has been clarified by listing specific dairy breeds (Ayrshire, Brown Swiss, Holstein, Jersey, Guernsey, Milking Shorthorn, and Red and Whites), rather than including dual purpose and mixed use breeds;

5. State and tribal abbreviations on ear tags can be used in place of the “US” symbol on ear tags;

6. Instead of requiring a certificate of veterinary inspection for all cattle, states can agree to accept alternative documentation so as to address the scarcity of large animal vets.

The final rule also dropped any requirements for “feeder cattle,” that is, beef cattle younger than eighteen months of age. The fight over this issue has only been postponed, however, because the USDA plans to have another rulemaking specifically on feeder cattle. But no new requirements will be implemented at this time, and we will be able to focus on the specific problems posed by identifying younger animals in a separate discussion.

We must also work at the state level, convincing state authorities to reach agreements with each other to allow for alternative forms of identification and documentation to make it as inexpensive and easy as possible for producers.

For poultry, the proposed rule would have required most backyard poultry owners and farmers to individually identify any bird they purchased from out of state, including day-oldchicks from hatcheries. WAPF and others had urged that poultry be completely exempted from the rule. While USDA did not do so, it did make two significant changes in the final rule:

1. Birds of any age shipped from a hatchery to a grower do not need to be individually identified. The grower does have to keep a record of the hatchery for two years.

2. Poultry going to a custom slaughter facility are exempt whether or not the meat will be consumed by the person moving the birds or someone else.

Poultry being moved to an inspected slaughterhouse across state lines will need to be identified under the rule, but most producers should be able to use group identification for their broilers, since broilers are typically managed in single-age groups. The greatest impact will be on live bird markets, where birds crossing state lines will most likely need to be individually identified. Notably, a senior USDA staffer publicly stated that individual identification requirements were not cost-effective for live bird markets and urged the agency not to require it. Yet the agency chose to ignore its own expert on this issue.

The final rule is far from ideal―particularly since it continues to focus government efforts on after-the-fact measures like tracking sick animals, instead of focusing on disease prevention, including supporting pasture-based systems that produce healthy animals. But the fact that USDA made so many changes, compared to both its original plan for NAIS and its more recent proposal, shows the growing power of our movement and the impact we can have when we create effective coalitions. We need to continue our work on all fronts, from more growers on the ground to more political activism.

FDA PROPOSES FOOD SAFETY RULES

And speaking of the need for more political activism, we need many people to speak up against the FDA’s new proposed rules on food safety! In January, FDA issued proposed rules under the 2010 Food Safety Modernization Act to address on-farm produce safety standards and HACCP-type regulations for processed foods. The proposed rules fulfill many of our worst expectations of what the agency would do with its new powers.

As a brief review, in December 2010, Congress passed a food safety bill, the Food Safety Modernization Act, that significantly expanded FDA’s authority. During the debates in Congress, WAPF joined with over one hundred other organizations across the country to try to protect local food producers from unnecessary and burdensome regulations. We succeeded in passing the Tester-Hagan Amendment, which exempts smallscale local producers from the new burdens of hazard analysis plans (HACCP-type plans) and produce safety standards.

Specifically, the Tester-Hagan Amendment protects producers who gross under five hundred thousand dollars annually from the sale of food products (adjusted for inflation), and sell more than half (50.1 percent or more) of their products to some combination of: (1) Individual consumers, regardless of where they are located; (2) restaurants that are in the same state or within two hundred seventy-five miles of the producer; and/or (3) retailers (such as co-ops, health food stores, and grocery stores) that are in the same state or within two hundred seventy-five miles of the producer. Both the restaurants and the retailers must in turn sell directly to consumers; in other words, the producer is no more than one step removed from the consumer. The remaining 49.9 percent of the producers’ products can be sold to anyone or any business. This amendment covers the vast majority of local food producers, although not all.

Even with the Tester-Hagan Amendment, however, the bill poses problems for the local foods movement because of the new regulations that will be imposed on medium-scale producers. In addition, although the FDA’s proposed regulations won’t legally apply to small-scale, directmarketing producers, we are concerned that retailers will ultimately require compliance as a condition for doing business with them―forcing producers either to comply or be limited to a 100 percent direct-marketing model in practice, thus limiting the consumers who can access these foods.

On January 16, 2013, the FDA issued proposed regulations to implement the major provisions of the act. The FDA’s publication included over twelve hundred pages of material, encompassing both the proposed rules and the explanatory introduction. The proposed rules cross-reference other documents, resulting in an immense and complicated morass.

Currently, public comments are due by May 16, 2013. WAPF has joined with over two hundred fifty other organizations, farms, and food businesses to urge FDA to extend the comment period for one hundred twenty days, until mid-September.

An initial review of the proposed rules has already highlighted many troubling provisions. Both rules include extensive documentation requirements that threaten to swamp farms and food producers in paperwork.

In multiple places in the produce safety rule the agency evidences unwarranted fear of animal-based soil amendments, which include compost and compost teas. For example, if the compost is not “treated” consistent with FDA’s standards, there is a nine-month waiting period required between applying the compost and harvesting the crop. In practice, this could cripple mid-scale growers’ ability to use any manure-based composts or compost teas.

The proposed regulations impose extensive testing requirements for water used in agricultural operations, and personnel requirements that turn the current voluntary Good Agricultural Practices (GAP) standards into regulatory requirements. All of these impose unwarranted costs and burdens on producers.

It is vital that local producers and supporters of local foods speak up during the comment period. Agribusiness’ control of Congress and the agencies developed over the course of several decades, as more and more family farmers were lost to consolidation and consumers became more disconnected from the source of their food. It will take a lot of time and work for the local foods movement to reverse this trend.

To submit comments on the produce safety standards, go to http://www.regulations.gov/#!documentDetail;D=FDA-2011-N-0921-0013

To submit comments on the HARPC standards, go to http://www.regulations.gov/#!docketDetail;D=FDA-2011-N-0920

We will provide a more detailed analysis and sample comments on the website as soon as possible.

This article appeared in Wise Traditions in Food, Farming and the Healing Arts, the quarterly journal of the Weston A. Price Foundation, Spring 2013.

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