Sustainable Economies Law Center (SELC) Comments on Proposed Rules under Food Safety Modernization Act

As you may have heard, the FDA released proposed rules under the Food Safety Modernization Act (FSMA) earlier this year and the deadline to submit comments is this Friday, November 15. Many small-scale farmers, food processors and good food advocates have expressed concerns about how some of the language in the proposed rule is too vague and how some parts may be excessively burdensome on small food businesses.

Click here for a guide on how to submit comments produced by our friends at the Community Alliance with Family Farmers (CAFF). Note: the website where you can submit comments online has been malfunctioning this week so don't wait until the last minute to submit your comments. If you aren't able to access the site, keep trying, or if you hurry, you can mail your comments in time for them to arrive this Friday (see instructions at the link above).

Sustainable Economies Law Center (SELC) submitted the following comments:

Thank you for considering our comments on the proposed rules under the FSMA. We at the Sustainable Economies Law Center (SELC) provide legal resources, including education, advice, research and advocacy, for many small­-scale food enterprises in California that are extremely mission-­driven, innovative and committed to providing consumers with food products that are produced in the most responsible, healthy, safe and environmentally sound ways possible. Like many farmers, food processors, consumers and good food advocates, we have some concerns about how some of the proposed rules might disproportionately affect some of these dedicated stewards of our food system that we support. Specifically:

We strongly believe that any business earning less than $1,000,000 annually should be exempt from the preventive controls rule. We work with many small food businesses that earn approximately $500,000 in annual revenue and many of them struggle to pay their operators adequately due to high real estate prices in the Bay Area and many other parts of California. Our state’s new minimum wage law reflects the rising cost of living and doing business in the nation’s breadbasket, thus many California businesses earning less than $1,000,000 in revenue are indeed small businesses with extremely slim profit margins (if they are even profitable yet). Imposing regulations that cost thousands of dollars or even tens of thousands of dollars could be backbreaking for many of these small businesses that specialize in processing local products, reducing middlemen and serving fresh, healthy foods to consumers. All retail food facilities that sell food directly to the final consumer, such as grocery stores and restaurants, already must comply with state health and safety laws that ensure proper education of employees who handle food and use of well­-maintained, clean, safe facilities.

Additionally, the list of low-­risk processed foods that are exempt from this rule is an excellent example of risk­-based regulation and we applaud the FDA for proposing this exemption. We would like to see the list of low-­risk foods further spelled out. It could include a fuller and more detailed list of foods, including baked goods such as breads and fruit pies, granola, roasted nuts, among other foods.


Water testing requirements are burdensome
We are very concerned that weekly water testing would cost many farmers thousands of dollars per year and may be unnecessary for farmers that take precautions to avoid contamination and market their products directly to consumers primarily. Water testing should be required on small farms only when a farmer has reason to believe that their water supply may be contaminated.

Soil amendment requirements conflict with National Organic Program
The FSMA explicitly states that the proposed rules developed by FDA should “...not include any requirements that conflict with or duplicate the requirements of the national organic program established under the Organic Foods Production Act of 1990...” for farms that are certified organic. However, the proposed rule for untreated manure requires a minimum application interval between application and harvest of 9 months. This is much longer than the standards set by the USDA National Organic Program (NOP) of 90 or 120 days. Similarly, the interval from application to harvest of treated manure in the proposed FDA rule is 45 days, while the NOP does not require an interval between application and harvest for manure treated by a composting process consistent with the NOP’s standards. The requirements should be consistent.

Thank you again for your consideration.


Our friends at allied organizations have issued the following informational resources and commentary:

CAFF resources website

UC Cooperative Extension newsletter articles Part I and Part II

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