Commenters Blast Proposed FDA Food Safety Rules

The comment period for two controversial proposed FDA food safety regulations, part of the Food Safety Modernization Act, closed yesterday. What did commenters have to say?

Earlier this week Keep Food Legal, the nonprofit I lead, submitted formal comments to the FDA in opposition to two proposed food safety rules the agency is currently considering. The comment period closed yesterday.

The proposed rules, mandated thanks to passage of the Food Safety Modernization Act (“FSMA”) in 2011, would increase the regulatory burden faced by fruit and vegetable farmers and other food handlers, packers, and sellers and require many to adopt procedural standards the FDA claims would prevent a small percentage of foodborne illness (between 3.7% and 5.7%, according to Keep Food Legal’s research).

Keep Food Legal also joined with the Farm and Ranch Freedom Alliance and others to submit joint comments authored by FARFA pertaining to an existing amendment to the FSMA, commonly referred to as the Tester Amendment, which requires the FDA to exempt small farmers from many FSMA requirements.

As of noon yesterday, the FDA had received about 12,000 comments on the proposed produce rule and more than 5,000 on the procedural standards rule.

In our independent comments, we urged the FDA to reject the proposed rules for three reasons—1) the proposed rules would hurt small farmers, other small food entrepreneurs, and their customers; 2) the proposed rules, despite their great cost, are unlikely to make food any safer; and 3) the proposed rules violate the U.S. Constitution.

Rather than rehash Keep Food Legal’s comments here, I urge you to read them at our website—and to check out my previous columns (like this one and this one) and my 2012 law journal article on the FSMA and food safety.

Instead, I’d like to highlight a few of those comments I’ve read that were made by others around the country.

In doing so, I won’t pretend to have read (nor to have any intent to read) the thousands of comments submitted to the FDA as part of the rulemakings. But in reading several dozen comments, I’ve noticed some common themes coursing through the comments.

First, small farmers appear to be united in their opposition to the proposed rules.

Tellingly, I did not come across a single commenter who both identified herself or himself as a small farmer and who also supported the proposed rules.

Small farmer Kyle Young’s comments typified those of small farmers opposing the proposed rules. Young referred to himself as “a small farmer utilizing farming techniques that have been safely providing food for humans for the past 10,000 years[.]”

Western Pennsylvania farmers Donald and Rebecca Kretschmann, who grow fruits and vegetables on fifteen acres and sell their produce via a burgeoning CSA program, also commented in opposition to the proposed rules.

“The FSMA has the real potential to make it impossible for small produce growers to make a living by requiring costly and we feel unnecessary alterations to the way produce is handled,” wrote the Kretschmanns.

And small farmer Erica Gruebler commented that she is “deeply concerned about the impact that FDA’s proposed rules under FSMA would have on my farm and business as well as my family.”