Turner Environmental Law Clinic win for family farmers, environment
By Emory University School of Law | Emory Law | February 21, 2014
The Food Safety Modernization Act requires the Food and Drug Administration to write new regulations that establish standards for produce safety to prevent foodborne illness. To meet this mandate, the FDA published a proposed regulation in January 2013, detailing new standards for growing, harvesting, packing and holding of produce for human consumption, and invited public comment. When finalized, the Produce Rule will affect the health of all Americans and potentially, the livelihoods of many small farmers.
In November, Turner Environmental Law Clinic students Helen Jubran 13L andEdward Ezekiel 15L filed comments with the FDA on behalf of the National Sustainable Agriculture Coalition, asking the agency to revise portions of the proposed Produce Rule concerning water quality standards and testing, and standards for using raw manure and compost.
“We believe the FDA missed the mark,” said Clinic Director Mindy Goldstein. “While the agency attempted to set standards to protect human health and the environment, in the end the proposed Produce Rule could do more harm than good.”
On Dec. 19, in light of the concerns raised by the Turner Environmental Law Clinic along with many others, FDA Deputy Commissioner for Foods and Veterinary Medicine Michael Taylor announced the FDA would reissue a revised Produce Rule this summer.
“We always knew that the rules governing farmers would be complex, in part because of the incredible diversity in the size and nature of farming operations,“ Taylor said following the announcement. “The standards we set must accommodate that diversity and be feasible to implement.”
NSAC is an alliance of grassroots organizations that advocate federal policy reform for sustainable agriculture, food systems, natural resources and rural communities.
“Our comments discussed the alternatives, mitigation measures and the environmental impacts to water, land, air, animals and human health that the Food and Drug Administration must consider before issuing the Rule,” Ezekiel said. “I enjoyed working closely with scientists, farmers and other experts in preparing these comments, and I’m excited that FDA has recognized their import.”
“The modernization of food safety rules is a major undertaking and it is more important to get it right than to meet any arbitrary deadlines for completion of the task,” NSAC Policy Director Ferd Hoefner said, commending the FDA’s decision to revise and reissue the Produce Rule for public comment, while raising other concerns.
FDA estimates showed water-quality testing costs for small farms would be roughly $12,000 annually—a significant hit for a small operation. Another issue was the use of manure on crops grown for human consumption. The proposed timetables of nine months and 45 days for raw and composted manure, respectively, are significantly longer than those permitted under current organic standards.
"Farmers need to know that food safety rules are not going to put them out of business," Hoefner said. His other concerns: conservation practices, wildlife habitat protection, defining usual and customary farming practices and defining who is exempt from the rules. NSAC is concerned about provisions that would apply to mixed-use operations— farms that grow food and then process it, for greater profit in an industry where margins can be slim.
“We pledge to continue to work with FDA, other farm groups, and with concerned senators and representatives to ensure that FSMA implementation leads to a flexible, scale- and supply-chain appropriate framework that supports the growth and success of a more sustainable food and agriculture system,” Hoefner said.
Students from the Clinic will continue to work with NSAC, preparing comments on the revised Produce Rule, Goldstein said.
“We are thrilled that that the comments we filed on behalf of NSAC helped FDA recognize the unintended impact on family farms and the environment,” Goldstein said. “We look forward to seeing the revised rule this summer.”