April 3, 2014

Employees Must Wash Hands

Kim Egan

Kim Egan, Founder, Saltbox Consulting

On January 4 2013, FDA took the first step in its history to regulate produce farmers. The agency issued a 547-page proposed rule that spends a lot of time reducing everything humanity has learned about plants since agriculture emerged in the Fertile Crescent 10,000 years ago in to U.S. Government jargon.

It is interesting reading if you like that sort of thing. There is an entire section devoted to the hazards of sprouts and another to the taxonomic and agricultural definition of mushrooms. FDA takes no position on glass or metal fragments in soil, but the “hazards unique to cilantro” warrant mention. We are introduced to an excellent new phrase: “pre-consumer vegetative waste.”

There are some stupid new acronyms, like Raw Agricultural Commodity (RAC) and some blindingly obvious regulatory findings, such as: “The statutes we describe above, and previous interpretations of the concepts of RACs and processed food as set forth in the 1998 Joint EPA/FDA Policy Interpretation and the Antimicrobial Guidance, lead FDA to tentatively conclude that the basic purpose of farms is to produce RACs and that RACs are the essential products of farms.” (Translation: Farms grow produce and produce is what farms grow.)

farmThere are also a lot of exemptions, such as food grown for your own use and food that is not normally consumed raw. This means that FDA’s first ever effort to regulate farmers does not apply to asparagus, corn, eggplants, figs, lentils, peanuts, or potatoes, among many others. Figs? Why not figs? Fresh black mission figs on a cracker with brie are yum…

To spare you the agony of reading the whole thing, I have boiled the whole 547-page proposal down a few key points. If you are a farmer:

  • Wash your hands.
  • Clean your equipment.
  • Send sick employees home (this means infectious diseases as well as suppurating wounds).
  • Change your clothes if you just spent a bunch of time shoveling manure.
  • Don’t put portable toilets smack in the middle of your irrigation source.
  • Don’t dump raw sewage on your fields.
  • Don’t let dead wildlife decompose in your fields.
  • Don’t harvest rotten apples.
  • Don’t bother with Purell; it doesn’t work on actual clods of dirt or manure.

Were I Queen, I would add:

  • Wash your produce before you eat it.
  • Know where your produce comes from, and don’t eat it if it came from a sewer or a nuclear power plant.
  • Follow the “Diplomats Rule” when traveling, i.e.,:
    • things with rinds or husks (oranges, nuts) are usually safe
    • things filled with water (lettuce, tomatoes and cucumbers) less so,
    • eventually you will acclimate, and
    • alcohol cures all.

But this is in fact a serious topic and I think the Food Safety Modernization Act misses the point. FDA really can’t do this by itself and the produce farmer is not the problem. If we want to improve the safety of our food supply, we need to:

  • Figure out a way to keep pharmaceuticals out of the water supply. If they aren’t in the water supply to begin with, they won’t end up in our lettuce and cucumbers.
  • Figure out a way to reduce our over-reliance on antibiotics. We would be less susceptible to food-borne illnesses in the first place if we didn’t routinely carpet bomb the flora in our bodies that keeps us healthy.
  • Figure out a way to prevent surface water run-off. I propose building codes that require green roofs for all new commercial structures over a certain size, and that require green verges on all new roads, etc.
  • Apply existing tort law to food producers who negligently or intentionally put a dangerous food product (raw or otherwise) into inter-state commerce. For biotech crops and hybrid seeds, this could include design defect and manufacturing defect claims, which can carry substantial financial penalties.
  • Take serious steps to increase agricultural biodiversity, which would include ending or seriously reducing subsidies for corn, wheat and sugar, and encouraging effective crop rotation.
  • Solve the problem of migrant farm labor. We depend on undocumented workers to harvest our crops because it turns out that picking tomatoes it not really “unskilled labor,” as the recent example of Alabama shows.

In the meantime, let’s keep things in perspective. A little dirt never hurt anyone.

Kim Egan is the Founder of Saltbox Consulting, a firm that provides legal and compliance advice to entities regulated by FDA and USDA.  She can be reached at kim.egan@saltboxlaw.com and on Twitter at @saltboxlaw.

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Comments

  1. Glenn A. Knight says:

    On the whole, an informative and even enjoyable article.

    You say: “Know where your produce comes from, and don’t eat it if it came from a sewer or a nuclear power plant.”

    How does being grown near a nuclear power plant make produce less healthy? According to some articles I’ve read, there is more ambient radiation, chiefly in the form of Carbon-14, emitted by coal-fired power plants than by nuclear plants.

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