Meet your greens, part 2: Industry seeks to outfox FDA

scales_flat2This is the second in a series of posts on my week in Monterey, CA, where I attended the first of seven USDA hearings around the country on an industry proposal to create a national marketing agreement on the safety of leafy greens. (Marketing agreements are explained in my first post, here.)

It’s not surprising that Monterey is the first stop for the USDA’s leafy-greens bandwagon. If ever there were a capital of greens, this would be it: the county seat is Salinas, a region as agriculturally intensive — and even less diverse — as it was when Steinbeck wrote about it in the first half of the 20th century. The majority of California’s spinach, lettuce, chard, and other greens are grown here. (California and Arizona together produce 75% of the country’s greens, according to industry sources, and many California companies move production to Arizona during the winter months to ensure year-round supply.)

It’s also home base for the industry authors of a national National Leafy Greens Marketing Agreement [pdf] on the safety of greens such as spinach, lettuce and chard. In a nutshell: the proposal was drafted by big industry players. If the USDA allows them to flesh it out into a full-on marketing agreement, then leafy greens "handlers" -- AKA wholesalers, shippers and processors -- will be able to sign on as members. In exchange for carrying out certain “safe food” practices (or requiring the farmers they buy from to do so) and passing an audit, they’ll get a handy little certification seal to display. The agreement is voluntary for the companies — no one is required to sign up — but if you’re a farmer selling to a handler that signs on, you will have to comply with the practices or else find another buyer. While it appears that direct farm-to-consumer or farm-to-restaurant sales are outside the purview of the agreement, any farmer wishing to sell to wholesale or institutional markets should sit up and take notice: this could apply to you.

Witness protection program

There are four members of the industry associations, two of them lawyers, perched on the stage next to the witness stand when I enter the hearing room on Tuesday morning. The hearings are being held by USDA’s Agricultural Marketing Service (AMS) to decide if they want to assist the industry group in developing and implementing their proposal. The government reps are supposed to be here to neutrally accept public comment… public comment that must be offered in front of a judge and be subject to cross-examination by AMS, the industry proponent group, and anyone else in the audience.

Although the hearings are limited to a certain number of days, in most official hearings like this, the industry is allowed to call all of its witnesses before opposing views are heard. When I arrive at 8:30 Tuesday morning, the industry reps declare that they have 31 witnesses. By 11 am, we’ve gotten through two.

I need some whiskey, and it’s not even noon.

Not surprisingly, this morning it’s a love fest for the proposed NLGMA. Witnesses speak from their experiences with the California LGMA, which was developed by the same industry group after the 2006 outbreak of E. coli O157:H7 in ready-to-eat bagged spinach, and claim that participating in the California program has improved the safety of leafy greens and boosted consumer confidence in the industry. (No one mentions that since the California agreement went into effect, Salinas-based companies have had four leafy-greens recalls for Salmonella or E. coli, nor that the contamination was caught not by the companies, but by random testing by state departments of agriculture. “Effective,” indeed!) A rep from the Texas Produce Association acknowledges that small farmers will probably have a harder time meeting NLGMA requirements than the big guys but still supports it.

I sip my coffee.

The AMS marketing specialist leading the government questioning, Melissa Schmaedick, responds with a lengthy cross-examination, including questions about the role of small-scale or organic growers in the agreement. Seems positive enough; AMS also runs the National Organic Program, so presumably they should care how the NLGMA would impact those growers. (There’s no reason to think that organic producers, particularly the larger ones, would not be caught up in the proposed agreement; Earthbound Farms is already signatory to the California LGMA, so all the farmers who grow for Earthbound have to comply with its on-farm requirements.)

But it soon becomes clear that Schmaedick’s line of questioning doesn’t meet the promised standard of neutrality. She seems far less interested in understanding why complying with the agreement will be a challenge for these producers — or why a food safety program led by Big Ag might not be the best one for our diverse agricultural system — and more in getting witnesses to state, for the record, that there could be opportunities for these interests to participate in developing or commenting on the agreement before it goes into effect.

“Do you see anything in this proposal that would prohibit small or organic handlers from helping to develop the marketing agreement?” she asks again and again. The answer is always no. Somehow, I do not feel better.

And now, for a brief intermission

Picture of a sterile farm courtesy of Wild Farm Alliance

Picture of a "sterile" farm courtesy of Wild Farm Alliance

After lunch, the judge takes pity on the other people who have shown up to provide comments but aren’t on the proponent group’s special list. Two staff from the Environmental Protection Agency, one from US EPA and one from Cal EPA, are allowed to take the stand. Like many witnesses, they use experience from the California LGMA to predict how an NLGMA might play out — but unlike earlier witnesses, that experience has made them wary. The California agreement fingers wild animals as a significant source of E. coli risk and “recommends” that producers take steps to minimize the presence of wildlife on farms. Ever since the California agreement went into effect in 2007, say the EPA reps, more farmers have been poisoning or trapping animals that aren’t an E. coli risk, such as rodents and frogs. They’ve also been ripping out vegetation on farms that might serve as wildlife habitat and filling wetlands, at times in violation of environmental laws. Trying to out-market each other on food safety, big produce buyers have developed even more extreme “sterile farm” programs, and the California LGMA has done nothing to curb their proliferation. (See photo at right; I covered these sterile-farm programs in an earlier post here.)

But both EPA witnesses repeat the same sentence verbatim (sent down from on high, perhaps?) that they would support a national LGMA that allowed farmers to jointly manage food safety and environmental protection. Is there anything in the proposal, asks Schmaedick, that suggests that the nuts and bolts of the agreement couldn’t be written to allow that to happen? No. OK! No worries!

I am, of course, beginning to worry.

Reasons to Worry, #1: Outfoxing the feds

In the afternoon, the proponent group calls one of its own, a vice president at Western Growers named Hank Giclas. Hank was one of the core group that drafted the California LGMA and the proposal for a national agreement, so his testimony focuses on how, if AMS gives them the green light, they would go about developing the NLGMA. In between his claims that the practices required of farmers and processors (referred to as “the metrics”) would be “grounded in the best science, scaleable, and regionally flexible,” he paints a picture of an agreement that, in my opinion, is unacceptably industry-controlled. (Needless to say, he does not use those words.)

The process of fleshing out the agreement, and ultimately of implementing it, will be run by an administrative committee made up of handlers (remember, that means wholesalers, shippers and processing companies) and a handful of producers from each of five “zones” of the country. Each zone conveniently includes a major leafy-greens state whose industry association helped draft this proposal. The administrative committee would also include one retailer, one rep from a foodservice company, an importer and a “member of the public.” These committee members, interestingly enough, would be chosen by the industry members. Take-home message: all of the members of this agreement's administrative committee will either be from industry or chosen by industry.

The administrative committee will be assisted by a technical board charged with developing the metrics, the set of practices that farmers, shippers and processors will have to follow to reduce the chances that leafy greens will get contaminated with a pathogen like E. coli. Of the 14 members of the technical board, 10 are appointed by the industry reps on the administrative committee. (Five of those ten are “produce food safety experts” and must be from land-grant universities—agricultural schools now often heavily funded by industry—since clearly other schools don’t know jack about food safety issues.) Of the remaining four seats, two constitute Schmaedick’s “opportunity” to balance food safety and environmental concerns: one rep from the EPA and one from the USDA’s Natural Resources Conservation Service. The final two seats are filled by personnel from the FDA, the government agency that, unlike AMS, actually has authority over produce safety.

Take-home message: aside from four government seats, the technical committee in charge of deciding what farmers will be required to do on their farms is industry-appointed (and possibly, in the case of the academics, industry-funded). That is why, when Schmaedick suggests that everyone will have the opportunity to participate, I feel a nagging sense of doubt.

Reasons to worry #2: Cause if we couldn’t tell already, AMS has a conflict of interest

While AMS is busy deciding if Big Ag should be allowed to do its own thing with the NLGMA, Congress is focused on two bills (H.R. 2749 and S. 510) that would also govern produce safety on farms or in processing plants, but in a different way. Marketing agreements are voluntary; the regulations under consideration by Congress are, um, regulations, so they're not voluntary. The regulations would be developed by the FDA, which governs produce safety. In contrast, AMS’s mandate as a government agency is to facilitate the marketing of U.S. agricultural products. If you were in the industry, who would you want in charge?

Well, if I can say one thing for Giclas, it is that he’s honest about the true intent of this program. At some point, while being cross-examined by a lawyer hired by the National Organic Coalition, he explicitly acknowledges that the industry is trying to propose an alternative to FDA regulation. He does not believe, he says, that FDA regulations would “put industry at the table” in the same way that the marketing agreement structure does.

No kidding.

Act three, coming soon: Drama, intrigue, and threatened lawsuits as the opponents take the stage!

3 Responsesto “Meet your greens, part 2: Industry seeks to outfox FDA”

  1. Dan says:

    This is great stuff, the real work of policy advocacy, and the sort of information that is usually kept behind quasi-closed doors.  Thanks for getting it into the public domain; keep up the good work.

  2. Wow - the saga continues - red flags, et al. Again, thanks for sitting through all this *and* sifting through it all, Elanor. And your point that the CA LGMA didn't catch 4 Salmonella or E. coli outbreaks reinforces the idea it is an agreement for power purposes, not food safety.
    Looking forward to 'Act 3'!

  3. annie avery says:

    thanks, just shared this on facebook and in OCA under the california forum.