Clark, as well as many other independent farmers, is concerned about the implications of the Food Safety Modernization Act (FSMA), signed into law in January 2011. The massive scope of the food bill centralizes much of the food safety oversight under the authority of the U.S. Food and Drug Administration.
The legislation was inspired by occurrences such as the E. coli-tainted spinach scare of 2006, which resulted in three deaths, as well as by the heightened vigilance of a post 9/11 world. Huge agriculture companies and fast food restaurant conglomerates who have had to issue massive food recalls in recent years, and have paid out millions for claims to customers made ill by their products, lobbied heavily for the bill.
Farmers like Clark see the potential for the bill to exacerbate the trend towards centralizing the production of agriculture and produce with the largest companies at a moment when small producers have finally gained some traction.
“It’s the unknowns that worry me. There’s just so much we don’t know,” he said.
“It’s one of these pieces of legislation that’s just so enormous. We’re talking about not hundreds of pages; we’re talking about thousands of pages,” said Paul Freedman, UVA professor of politics and a steering committee member of the UVA Food Collaborative.
The FDA released some of its new food safety standards early this year, but there is still much to be determined about how FSMA will affect the day-to-day life of farmers like Clark.
Freedman said, “Once a law gets passed by the Congress and gets signed into law by the president, most people think it’s over at that point. But, in fact, it’s just the beginning.”
The legislation is then written into rules that determine the everyday enforcement of the law. The rules for FSMA are in that process now.
“If you are a farmer,” said Freedman, “those rules can often be as important as, in fact more important than, what the language of the law says.”
On its website, the National Sustainable Agricultural Coalition warns: “If you’re a consumer, these rules could, over the long term, impact the kind of food you are able to find and purchase in your community.”
The aspect of the FSMA that concerns Clark most is the possibility that he may have to incur great financial expense both complying with the new regulations and coping with the potential fines and production stoppages if he is found in violation of their new standards.
“They could come in here and find some sanitation violation and shut the whole place down or say they’re going to have come back and do a re-inspection,” he said.
If that happens, Clark would be obligated to pay an hourly rate of over $200 to the FDA for their time. And that includes roundtrip travel time for the FDA agent to come down from the Baltimore office.
“If I had any produce recalled through a retailer, they are shifting all the burden to the grower. I’d have to pay a thousand dollars, plus $7 per package, plus disposal costs.”
Expenses like that are an annoyance for major producers, but they could be ruinous to an operation the size of Clark’s.
One of the greater concerns about the FSMA, for consumers, is that if a significant number of small farms are regulated and fined out of existence, then more of our food will have to be produced by much larger companies. And that would appear to put greater numbers of people at risk in the event of a food borne disease outbreak.
If a contamination occurs on a small farm, then a small number of people over a small area will be at risk.
“If you have a huge place, then tons of spinach will go into a washer,” which wouldn’t usually be the case on a smaller farm. “If the washer is contaminated then the spinach gets contaminated. Spinach that wasn’t contaminated before it went in the washer.”
I asked Emily Manley of the Local Food Hub, a distributor for smaller growers, about the prevailing mood of the Hub’s farmer clients toward the FSMA.
“Growers are certainly paying attention to the process,” wrote Manley in an e-mail. “But at this point the ruling is still in public comment period…so folks are still just keeping their eyes and ears open. There’s also the Tester-Hagen Amendment included in the FSMA that helps make the process more workable for small farmers by providing exemptions or partial exemptions for those who meet certain requirements.”
Freedman doesn’t believe there is any motivation on the part of the bigger agricultural companies to eliminate small farms like PED, nor does he believe they imagine a world where those farms don’t exist. Be he does point out that, with the way our political system works, the bigger corporations, as in any industry, have a louder voice.
With the luster of the “organic” status fading of late (a designation PED now eschews in its labeling), as more consumers become aware of the vague and irregular use of the term, Clark feels like Planet Earth benefits from this public awareness.
After passage of the Foods Production Act of 1990, Clark and other Virginia farmers volunteered to serve on the Virginia Association for Biological Farming (VABF). Throughout the 1990s, these volunteers would take applications from farms that volunteered to be evaluated to qualify for official certification as organic growers. Clark said the VABF received an application from a farm that had some state-funded development money behind it and when they went to certify the farm, the VABF found that it was a hydroponic farm built on top of a paved over landfill. The VABF had no idea how to deal with the circumstance. They weren’t even saying that they could not certify the farm; the VABF’s position was that a non-soil-based system on a landfill was outside of their expertise and that the farm should go somewhere else for certification.
According to Clark, they were threatened by the Commonwealth with civil action if they didn’t certify the publicly funded farm. The volunteer farmers serving on the VABF were susceptible to multiple lawsuits, they were warned.
“So we just disbanded,” said Clark.
“’Organic’ became a marketing term,” said Clark a couple days later, while making a delivery at the Ivy Inn. “Then our tomatoes started to look, to the average shopper, like everybody else’s.”