In the wake of the recent egg salmonella scare, the U.S. Senate appeared ready to vote on S. 510, the FDA Food Safety Modernization Act, despite widespread opposition from groups representing small farms and small food processing facilities. They say the proposed regulations are unnecessary, redundant, ineffective, and threaten small farm viability.

Sen. Richard Burr, R-N.C., is an original co-sponsor of the bill. Both he and Sen. Kay Hagan, D-N.C., serve on the Senate Health, Education, Labor, and Pensions Committee, which held hearings on the proposed bill. Several groups that do not support the bill told Carolina Journal that both Burr and Hagan have worked to make it less onerous.

The latest snag to the bill’s passage came Sept. 15. Sen. Tom Coburn, R-Okla., and Senate Majority Leader Harry Reid, D-Nev., have sparred, among other things, over the bill’s cost, estimated at $1.6 billion over 5 years because it’s not funded. Coburn outlined his concerns about the bill on his Senate website.

“More money and more regulations solve nothing when Congress lacks the discipline to hold agencies accountable,” said Coburn. With 15 agencies, including the Food and Drug Administration, U.S. Department of Agriculture, and even the Environmental Protection Agency now regulating food safety, Coburn said a lack of regulations isn’t the problem. Instead, Coburn has cited “inconsistent oversight, ineffective coordination, and inefficient use of resources” for gaps in enforcement.

FDA Commissioner Dr. Margaret Hamburg admitted that had rules proposed 10 years ago been finalized and implemented, the problems on the farm where the salmonella outbreak originated would likely have been identified before it occurred.

Still, the bill authorizes no fewer than 5,000 new federal employees by fiscal year 2014 to implement the provisions, plus another 150 field staff in food defense by fiscal year 2011.

Proposed regulations

The proposed regulations grant broad authority to the FDA regarding performance standards, product traceability, and produce safety standards. The bill also would grant mandatory recall authority and lower the threshold for detaining food deemed adulterated or misbranded. Critics say these provisions are unlikely to make the food supply safer and may instead give the public a false sense of security.

Three new grant programs would increase spending by $335 million from 2011-15. These grant programs, along with the establishment of “Centers of Excellence” at selected state health departments, would likely mean more government hiring at the state and local levels. Once the grants expired and federal funds were exhausted, state and local taxpayers would have to foot the bill to keep the personnel.

The school-based allergy and anaphylaxis management grant program, for example, establishes federal standards for how local schools should deal with food allergies. And yet the Centers for Disease Control and Prevention already have published standards for schools, making the standards redundant in the view of critics.

Effects on North Carolina business

Roland McReynolds, executive director of Pittsboro-based Carolina Farm Stewardship Association, told CJ that “the bill creates the potential for applying large-scale industrial standards and recordkeeping requirements to small farms, making it harder for existing farms to survive and discouraging agricultural entrepreneurship.”

A report McReynolds prepared for policymakers shows direct-to-consumer sales of FDA-regulated crops totaled $1.1 billion in 2007 and Tar Heel farmers sold over $52 million of organic produce in 2008. The number of fruit and vegetable farms in the state increased 11 percent from 2002 to 2007.

North Carolina has 45,000 small farms, but 91 percent gross under $50,000 annually and have fewer than 20 employees, McReynolds said.

The increased cost for a typical small farm doing on-farm processing to create and comply with the expanded Hazard Analysis and Risk-Based Preventive Controls in the bill would be $9,500 annually, according to Chris Hardin, operator of Rivendell Farm in Mecklenburg County. That cost would increase to $20,000 in the first year if the farm needed to hire an outside consultant.

In April, PlanetGreen.com cited a study from the University of California at Davis showing compliance costs for small farms could be as high as $100 an acre. The new rules mean not only increased recordkeeping and inspections but also different standards for different foods.

Debbie Hamrick, director of specialty crops with the N.C. Farm Bureau Federation, said her organization has not taken a position on the bill, but added that the amended version of the Senate bill is better than the tougher House version (H.R. 2749) passed in March.

Hamrick said her group and others are concerned because they’ve heard the FDA has had a broad group of stakeholders working on food safety regulations for more than a year. It seemed a foregone conclusion that sweeping regulations were coming, so it’s really a matter of working very hard with lawmakers to make the bill “more palatable,” Hamrick stated.

Both Hamrick and McReynolds said farmers worry because the produce safety standards will authorize the FDA for the first time to enforce rules on how to grow fruits and vegetables at every farm, regardless of the farm’s size or the potential risks associated with growing, shipping, or consuming the produce.

Sue Johnson-Langdon, executive director of the North Carolina Sweet Potato Commission, told CJ that the Tar Heel State is the biggest exporter of sweet potatoes into the U.K. and the European Union. Those entities have even tougher certification standards than the U.S., and every Tar Heel shipper complies with those standards.

Sen. Jon Tester, D-Mont., an organic farmer, has sponsored two amendments that would provide some limits on the traceability and recordkeeping requirements for facilities based on average annual adjusted gross income and whether the farm sells directly to consumers. Hagan recently announced her support of the Tester amendment, saying she wants to protect small farms.

Burr’s support for the food safety bill seems out of character with his opposition to other costly legislation, including the president’s health reform law. In a written statement to CJ, spokesman David Ward said, “Senator Burr recognizes that a one-size-fits-all approach does not work when it comes to our nation’s farms and small businesses, and he has been working tirelessly to shape a bill that does not result in an FDA takeover of the farm.”

Karen McMahan is a contributor to Carolina Journal.