FDA's New Produce Safety Rules: Somewhat Less Than Meets the Eye

When I teach my environmental law and food safety law students how to go about ascertaining the meaning of implementing regulations, I tell them to start with the sections of the regulations devoted to definitions and exemptions. Quite frequently the most hard-fought controversies during the rulemaking process through which the agency promulgated the regulations were over the definitions and exemptions. That certainly seems to be true in the case of the long-awaited Food and Drug Administration's (FDA) proposed "Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption," which the Obama Administration, with much fanfare, issued on January 4. According to FDA's analysis of the economic impact of the proposal, almost 80 percent of the country's produce growers will not have to meet the standards because they are not covered in the definitions or are otherwise exempt. The proposed rule, which was required by the landmark Food Safety Modernization Act of 2010, would for the first time establish legally enforceable standards for produce farmers. The standards set out requirements for sanitizing tools and equipment, for ensuring that agricultural water is safe and sanitary, for using animal-based fertilizers (e.g., compost) on food crops, for reducing contamination from domesticated and wild animals, and for training field workers and ensuring that they employ sound hygiene practices.