Conservation Law Foundation’s Legal Food Hub and Harvard Law Food Law and Policy Clinic Comment on FDA Guidance for the Produce Safety Rules

By Mary Rose Scozzafava

Do you wonder, as a New England farmer, how the new U.S. Food and Drug Administration’s (FDA) Produce Safety Rule applies to you? Have you read the Rule, but thought that it didn’t cover the situations on your farm?  Conservation Law Foundation’s (CLF) Legal Food Hub and Harvard Law School’s Food Law and Policy Clinic (FLPC) are speaking up to ensure that the regulations work for New England farmers.

A Voice for New England’s Sustainable Agriculture

New England agriculture is made up of mostly small, diversified farms. Farmers grow and sell a variety of products and engage in many different farming activities, including raising livestock. New England farmers also employ organic farming practices at a higher rate than other regions of the United States.  So, New England farm operations tend to be smaller in acreage, yet more complex than larger operations.

With our local understanding of the unique characteristics of New England’s farm sector, CLF’s Legal Food Hub and Harvard Law School’s FLPC took a look at how new guidance for produce safety will affect our New England farms.  We want to be sure the rule works for farmers here in our region.

New Produce Safety Requirements under FSMA

The Food Safety Modernization Act (FSMA) was signed into law in 2011 and required the FDA to write new regulations to create standards for produce safety, called the Produce Safety Rule.  The Produce Safety Rule went into effect on January 26, 2016. The Rule established new standards for the growing, harvesting, packing, and holding of produce for human consumption. Compliance is phased in over a several-year period starting January 2018. This is the first time that farms have had to follow federal food safety regulations.

The FDA recently released a draft guidance on the Produce Safety Rule, which is intended to assist farmers in understanding and implementing the Rule.  The guidance provides a broad range of recommendations on how to meet the requirements of the Rule and some real-life examples. For example, it outlines how to determine whether produce or farms may be eligible for exemptions from certain requirements of the Rule.  However, the guidance is not yet final, and the public was invited to provide comments on how to improve it.

CLF and FLPC Comments Address Needs of New England Farmers

In partnership with FLPC, CLF submitted comments on the Produce Safety Rules draft guidance.  Our comments focused on the impact of the Produce Safety Rule on the small, diversified and sustainable farm practices common to New England.

We made recommendations to make the rules clearer and make implementation easier for New England farmers. For example, our comments requested clearer guidance for gleaners who harvest food from farms for donation. We also recommended that gleaning activities be exempt from the Produce Safety Rule.  In addition, our comments requested more clarification on the status of specific biological soil amendments, including worm castings and vermicomposting, foliar fertilizer, and agricultural tea.

The full comments submitted to the FDA can be viewed here.

The Legal Food Hub is working to help farmers understand how to comply with new requirements under FSMA. Check out a recent webinar on the Produce Safety Rule here.

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