Page 92 - Winter2014

Legislative Updates

THE LATEST INSTALLMENT ON THE FEDERAL FOOD SAFETY REGULATIONS
By Judith McGeary, Esq.

The U.S. Food and Drug Administration WHO IS SUBJECT TO THE PRODUCE RULE?
(FDA) has just wrapped up its second public The Produce Rule is FDA’s venture into an
comment period on proposed regulations to unfamiliar world for the agency: the world of
implement the Food Safety Modernization Act growing crops in soil and open air, rather than
(FSMA). The issue of FSMA has been covered labs and test tubes. The agency’s proposed rule
many times in Wise Traditions and WAPF ac- would regulate almost every aspect of grow-
tion alerts, starting back in 2010 when the bill ing crops, including equipment, worker train-
was debated in Congress and during the intense ing, water for irrigation and washing produce,
fight for the Tester-Hagan amendment to protect manure and compost use, grazing livestock or
small-scale, direct-marketing producers. using working animals in produce fields, record
As with the majority of modern laws, the keeping and more. Who will be subject to this
fights didn’t end when the bill was passed; rule?
rather, they just got more complicated as the The Produce Rule applies if:
administrative agency (in this case, FDA) went
into rulemaking mode. Over the last two years of 1. You harvest, pack, or hold fruits, vegetables,
the rulemaking process, we have delved deeply nuts, mushrooms, or sprouts for sale (the
into esoteric details and urged WAPF members rule does not apply to people raising food
to take action multiple times. for themselves or that is not for sale), and
Judith McGeary Before we wade into the latest round of 2. Any of the produce that you grow and sell
is the Austin, Texas is usually consumed raw (produce such
chapter leader, an painful details in the second half of this article,
attorney and though, let’s step back just a little to understand as artichokes, asparagus, lentils, potatoes,
small farmer in the effects of FSMA on farmers and food produc- sweet corn, turnips, and winter squash are
Austin, and the ers. While FSMA has many pieces, the bulk of not covered).
executive director of the attention is on two major rules: Standards for
the Farm and Ranch the Growing, Harvesting, Packing and Holding If you meet both conditions, then you fall
Freedom Alliance. of Produce for Human Consumption (the Produce within the scope of the Produce Rule. The next
She has a B.S. in Rule) and Hazard Analysis and Risk-Based Pre- question is whether you are exempt, either en-
biology from
Stanford University ventive Controls for Human Food (the HARPC tirely or partially.
and a J.D. from the rule). If you sell less than twenty-five thousand
University of Texas Please note that this article is based on the dollars worth of produce on an annual basis, you
at Austin. She and rules as currently proposed. There are certain are completely exempt. There is also a “qualified
her husband to be at least some changes when FDA issues exemption” under the Tester-Hagan amendment
run a small the final rules, which may affect the scope and that requires two conditions 1) you sell less than
grass-based farm applicability of the rules. In addition, this article five hundred thousand dollars annually in sales
with sheep, cattle, is not legal advice. Every farm and food business of all food, and 2) you sell more than half of that
horses, and poultry. is different, and your obligations under FSMA directly to either (a) individual consumers or (b)
For more
information go to will depend on the specifics of your operation, retailers and restaurants that are either in-state
www.farmandranch- as well as the requirements contained in the final or within two hundred seventy-five miles of your
freedom.org or rule. farm. If you meet both conditions, you have a
call (254) 697-2661. qualified exemption.
88 Wise Traditions WINTER 2014 Wise Traditions

145881_text.indd 88 12/23/14 12:17 AM