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severe chilling effect on producers all over the even FDA officials appear to be unable to explain how it would actually
country. work in practice.
For those producers who are not exempt The proposed rules contain many other opportunities for arbitrary and
under the Tester-Hagan provision, one of the unfair enforcement. For example, the Produce Rule requires that farm-
biggest problems is the proposal for irrigation ers wait an “adequate” time in between grazing livestock in a field and
water standards. The FDA is continuing with its harvesting the crop from that field—but what does that mean? Similarly,
original proposal that irrigation water must meet although the FDA has now clarified that a farmer is not required to take
the EPA’s standards for water for recreational use. actions that would violate the Endangered Species Act by destroying wild-
This simply makes no sense. The recreational life habitat, it is unclear what steps will be required for farmers to prove
water standard was developed to prevent gas- to the inspectors that they are preventing contamination of their crops by
trointestinal illness in swimmers and does not wild animal excrement.
account for the fact that microorganisms die off It is worth noting one major improvement in this second round of
rapidly in the interval between irrigation and proposed rules, namely the sections dealing with “biological soil amend-
harvest (as opposed to a swimmer swallowing the ments” in the Produce Rule. The first version of the proposed rules would
water directly). Moreover, the recreational water have required that farmers wait nine months after applying manure to a
standard is based on testing for generic E. coli, field before they could harvest their crop; even applications of fully treated
but the presence of generic E. coli does not mean compost called for a forty-five-day waiting period. This would have been
that pathogens are present; and, conversely, the devastating to organic and sustainable farmers. In response to the outcry
absence of generic E. coli does not mean that the in the first public comment period, the FDA now proposes that a farmer
water is free from pathogens. Thus, setting the can apply compost and harvest the crop without any waiting period. For
standard for irrigation water to test at a low level manure (which, under FDA’s definitions, includes things like static com-
of generic E. coli imposes major costs on farmers posts, vermicompost, and many compost teas), the FDA plans to conduct
without necessarily protecting food safety. research over the next few years to assess the risk and then set standards
No one knows how implementing this stan- based on those studies. This is a significant victory, and shows that the
dard would affect American produce farming, agency will at least sometimes listen when enough people speak up.
but evidence suggests that a very significant Not all the changes were for the better, however. The FDA also made
percentage of surface waters would fail the test, changes to the HARPC Rule that make it far more expensive and bur-
forcing farmers to switch to groundwater (if that densome. The FDA has added a requirement for a “supplier verification
is even an option in their area), bear significant program,” that requires facilities to implement a program for raw materials
cost to treat their water chemically, or simply go and ingredients that it receives from farms or other businesses and that have
out of business. a “significant hazard.” The receiving facility would have to conduct either
In response to the comments in the first an on-site audit, sampling and testing of the ingredients, or a review of
round which raised these points, the FDA in- the supplier’s records. The new proposed rule also requires collection and
cluded a provision in the new proposed rules testing of samples from the environment “if contamination of a ready-to-eat
that allows farmers to use water that exceeds this food with an environmental pathogen is a significant hazard.” Despite the
standard based on a logarithm formula calculat- use of the words “significant hazard,” the provision is broad and ambiguous
ing die-off. But the provision is so confusing that enough that it could easily be used to justify multi-day testing of every
nook and cranny of a facility, as we have already seen happen with some
JOURNAL NOW AVAILABLE AS cheese makers.
A DIGITAL TALKING BOOK FOR THE
VISUALLY IMPAIRED CONCLUSION
WAPF, along with many other organizations and thousands of indi-
We now have our journal converted
into an audio format for the visually im- viduals, have submitted comments to FDA on these and other problems
paired. Special software is required for this, in the proposed rules. The FDA will now review the comments and issue
such as Dolphin Easy Reader. Go to the final rules sometime in 2015. The process will not truly end then, however.
JOURNALS tab on our homepage. Start- Issues such as enforcement, the studies on the use of manure and other
ing with Fall 2011, click the journal you biological amendments, and protecting the integrity of the Tester-Hagan
are interested in. Please tell others! Many exemptions will need to be addressed as we move forward, if we are to
thanks to Amy Adams of ePubUSA.com for ensure the ability of farmers and artisan food producers to provide food
this service! for our country.

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