Thursday, October 8, 2015

Sentencing for Peanut Paste Salmonella Outbreak Continues

Written by Tyler R. Etter

On October 1, 2015, two former Peanut Corporation of America (PCA) employees were sentenced for
their part in the shipping of tainted peanut paste that caused a salmonella outbreak. The sentenced
employees were Samuel Lightsey and Daniel Kilgore, both former operations managers at PCA’s Blakley,
Georgia plant. The two were sentenced to 36 and 72 months in prison respectively, each followed by
three years of supervised release.

The 2008-2009 outbreak occurred across 46 states, with over 700 individuals falling ill. PCA has shipped
contaminated products, either before receiving test results or falsifying the tests. The prosecution has
been focused on the officials for conspiracy to defraud. Both Kilgore and Lightsey pleaded guilty to
conspiracy, mail and wire fraud, and the sale of misbranded and adulterated food.

On the same day, the victims of the outbreak urged the full funding of the Food and Drug
Administration’s (FDA) food safety program. The letter to Congress was signed by six families affected by
the outbreak, four of whom had lost a family member. The letter urged Congress to allocate $109.5
million to the FDA to fund the program designed to prevent a similar outbreak.

The families of the victims from the outbreak were instrumental in the passing of the Food Safety
Modernization Act. The families stated that without proper funding, “the law’s potential will be
squandered, and families such as ours will continue to be put at needless risk...” The current bills in the
House and Senate are proposing less than half of the requested budget for the food program.

Wednesday, October 7, 2015

Court Grants EPA Summary Judgment in CAFO Information Gathering Case

Written by Katharine Richter

On September 29, 2015, the United States District Court for the District of Columbia granted summary judgment to the Environmental Protection Agency (EPA); EPA was sued back in 2013 by five groups over the EPA’s decision to withdraw a proposed rule.  According to the decision, the rule “would have required large industrial livestock operations to provide information to the EPA in order to facilitate the EPA’s ability to regulate their discharge of pollutants into the waters of the United States pursuant to the Clean Water Act [CWA].”  The five groups bringing the lawsuit were the Center for Food Safety, Environmental Integrity Project, Food & Water Watch, The Human Society of the United States, and Iowa Citizens for Community Improvement.

The plaintiffs alleged that the withdrawal of the proposed rule “was arbitrary and capricious in violation of the Administrative Procedure Act…”  According to the decision, in 2011, the EPA introduced two potential rules which “would have required CAFOs to submit certain basic information to the EPA, pursuant to the EPA’s information-gathering authority under the CWA.”  The Agency decided to not adopt either rule after a notice and comment period.  The EPA stated it would use the “existing information approach,” using data from other sources such as U.S. Department of Agriculture (USDA) and state registration or licensing programs rather that requiring CAFOs to submit information.

In the decision, the plaintiffs argument focused upon the “clarity of explanation offered by the EPA” in deciding to not adopt the proposed rule.  The Court found the EPA’s decision to not adopt the rule and notice was “adequately explained and coherent.”  Further, the plaintiffs argued the EPA erred in determining it could properly gather information on CAFOs without enacting the rule.  The Court determined the evidence was sufficient that a reasonable person would “reach the conclusions that the EPA did regarding the existing sources of information.”

Tuesday, October 6, 2015

Lawsuit Against USDA Compost Policy Allowed to Continue

Written by Tyler R. Etter

On September 29, 2015, a California federal court denied the USDA’s motion to dismiss the lawsuit
brought by the Center for Food Safety, Center for Environmental Health, and Beyond Pesticides. The
lawsuit is challenging a USDA guidance that recognized the presence of synthetic pesticides in compost
used for organic food productions.

The plaintiffs asserted that the USDA guidance effectively allows certified organic producers to use
compost materials treated with synthetic pesticides, amending existing organic food regulations. They
also argued that the guidance violates the produces for public notice and comment, as the guidance was
issued without an opportunity for public input. The USDA argued the requirement did not apply, as the
guidance was not a legislative rule. Magistrate Judge Jacqueline Scott Corley found merit in the
plaintiffs’ arguments, specifically within the context of the premium paid by consumers and farmers to
ensure that organic produce avoids synthetic pesticides.

Prior to the release of the guidance, synthetic substances were expressly prohibited from compost used
in organic food production. Ralph Bloemers, attorney for the Crag Law Center, stated that the guidance
“radically changes organic requirements...” and that the USDA “made the change without the required
rulemaking process.”

Proponents of the lawsuit are calling the denial of the motion to dismiss a major victory for public input
in the organic policy process, and believe that the USDA must facilitate public input to ensure the
integrity of the process.

Monday, October 5, 2015

Food Groups Petition for FDA Rule Change for Breaker Eggs

Written by Katharine Richter

On September 29, 2015, The National Chicken Council (NCC), Grocery Manufacturers Association (GMA), and Association for Dressings and Sauces (ADS) wrote a petition to the Food and Drug Administration (FDA) asking “to amend the Final Rule on Prevention of Salmonella Enteritidis in Shell Eggs During Production, Storage, and Transportation, published July 9, 2009 [74 FR 33030].”

The rule requires that any eggs being sent to breaking facilities, which will eventually be pasteurized, must be “kept at 45 degrees F within 36 hours after being laid.”  The NCC originally challenged the rule when it was being proposed in 2010 because the FDA never explained the additional health benefits from requiring the refrigeration and the petition argues there is “no additional food safety value.”  The refrigeration requirements effectively made broiler hatcheries dispose of all excess eggs, which the NCC estimated was around 365 million eggs last year.  Prior to the rule, broiler hatcheries could sell excess eggs they had due to fluctuating market demands.  The excess eggs were sold as “breaker eggs” (eggs broken and sold in liquid form).  With the enactment of the rule, the broiler farms could not sell the excess eggs because they failed to meet the refrigeration requirements.

The petition comes at a time when egg prices have “more than doubled in the period following the HPAI outbreak.”  Many companies have felt the price increase.  The petition states that, “Industry experts estimate that the price of a dozen breaker eggs rose dramatically from 63 cents in late April to $2.15 in early June.”  The petition argues changing the rule to either make breaker eggs exempt from the refrigeration requirement or increasing the refrigeration requirement to 120 hours after being laid, would help meet market demands and stop the need to import eggs from other countries.

Friday, October 2, 2015

USDA Plan to Help Small Farmers with Certification

Written by Stephen Kenney

On September 15, 2015, Agricultural Marketing Service (AMS) Administrator Anne Alonzo spoke about the expansion of a pilot program that was designed to help small and mid-sized growers and cooperatives meet the Good Agricultural Practices (GAP) certification.  The certification verifies that a farm follows the food safety practices and recommendations from the Food and Drug Administration.  The safety practices focus on producing, packing, handling, and storing fruits and vegetables in a safe manner that minimizes risks of microbial food safety hazards.  Produce purchasers are increasingly requiring that suppliers attain GAP certification.

The pilot program was referred to as the GroupGAP program.  Small and mid-size farmers can often find it difficult to attain the GAP certification because the audit process can be expensive.  The program enabled growers, food hubs, and cooperatives to work together to attain certification and share the cost of the audits.

In July 2015 Michigan State released a study on how the food safety pilot program fared in Michigan.  The study found that GAP certification could meet the certification needs of small farms.  It was also found that the program could be affordable.  The audit costs were $492 per-farm.  The study estimated that individual farm savings through GroupGAP certification versus individual GAP certification was about $700. 

AMS will share details of the future program at the October 23rd-25th Produce Marketing Association (PMA) Fresh Summit meeting in Atlanta.

Thursday, October 1, 2015

Local Oregon GMO Ban Faces Legal Challenge

Written by Tyler R. Etter

On September 4, 2015, two local farmers in Oregon’s Josephine County filed a lawsuit to overturn a local ban on the cultivation of genetically modified (GM) crops. The ban was to be enforced beginning on September 5, but officials decided to delay enforcement while the lawsuit is pending.

The ban was originally approved in May of 2014. Farmers would be required to self-report if they were growing GM crops, and then submit a phase-out plan. Robert and Shelley Ann White, the farmers challenging the law, had devoted part of their farm to growing GM crops before the ordinance was passed. They claim that the law poses an immediate threat and irreparable injury due to the ban. They reportedly leased the land specifically to grow GM crops, such as sugar beets, for seed.

The basis of the legal challenges rests on the assertion that the ban is in direct violation of state law. Legislation was approved in October of 2013 that forbade local governments from imposing additional laws or regulations that would regulate farm practices, include GM bans. Only one county was given exemption, Jackson County. The Jackson County ban is also facing an ongoing legal challenge. The presiding judge found the ban wasn't preempted by state law, but has yet to decide if the farmer is entitled to damages for the ban's enactment.

Wednesday, September 30, 2015

California May Enact Nation's Most Restrictive Laws Regarding Livestock Antibiotic Use

Written by Katharine Richter

On September 11, 2015, the California legislature passed SB No. 27, which proposes strict restrictions on antibiotic use in livestock.  The enrolled bill still needs to be signed by California Governor Jerry Brown (D) to be enacted. 

The bill, if signed by the Governor, would become operative starting January 1, 2018.  The bill would prohibit “medically important antimicrobial drugs” from being administered to livestock “unless ordered by a licensed veterinarian through a prescription or veterinary feed directive pursuant to a veterinarian-client-patient relationship.”  The bill would not allow the administration of antibiotics if the only purpose is “weight gain or improving feed efficiency.”

The bill further requires that the California Department of Food and Agriculture (CDFA) develop antimicrobial guidelines and best management practices.  CDFA will also be in charge of surveillance and gathering information.  Any violators will be “subject to a civil penalty of up to $250 for each day a violation occurs.”  A second and subsequent violations will be increased to a “fine of $500 for each day a violation occurs.”

According to the Consumers Union website, this bill will be the toughest law to date on limiting the use of antibiotics in livestock.  The website states that “approximately 80 percent of all antibiotics sold in the U.S. are fed to mostly healthy animals…to make them grow faster and to prevent disease in crowded and unsanitary industrial farms.”  According to a Food Chemical News article, industry groups “haven’t mounted strong opposition to the bill.”  Industry groups recognize the need to address the future effectiveness of antibiotics but the concern with the proposed legislation is the potential burden on rural farmer’s access to veterinarians.