We have good news on the whistleblower case against Agribusiness giant Perdue that we told you about back in April!
The farmer’s claims can go forward under the whistleblower provisions of the Food Safety Modernization Act (FSMA) … and in a way that doesn’t threaten the Tester exemption that we fought so hard for in FSMA.
BACKGROUND: Chicken companies like Perdue own the birds from the day they are hatched all the way to the grocery store shelves. The companies contract with farmers to raise them, but the companies control every step of the process, dictating the conditions under which the animals are raised.
In 2015, farmer Craig Watts exposed the conditions on his farm, as well as the health problems with many of the baby chicks that Perdue sent to his farm for raising. These facts posed potentially significant food safety issues and were at odds with the claims Perdue was making in its advertising. Perdue’s reaction was to blame Watts and use its power – the fact that he had no other outlet for marketing chicken because of the corporate consolidation of our food system – to threaten his business.
Watts brought a whistleblower claim to the Department of Labor (DoL). Perdue responded that his claim had to be rejected because there are no whistleblower protections in the Poultry Products Inspection Act, the main law that governs chicken products.
The FDA then weighed in, arguing that its Food Safety Modernization Act’s whistleblower provisions applied. Unfortunately, FDA’s main argument was that FSMA applied because live animals are part of the definition of “food” under FSMA.
The problem with saying that live animals are “food” (as opposed to being destined to become food) is two-fold. One, it expands the normal meaning of the language to increase the agency’s authority, which is bad precedent. Two, it would reduce the number of farmers who are exempt from the FSMA rules.
Why? Because the Tester exemption, for which we fought so hard, is based on the farmers’ gross sales of “food,” as well as whether they market primarily direct to consumers and local restaurants and retailers. So, consider a small farmer who raises cattle to sell at the local livestock market but also raises vegetables to sell at the farmers’ market. Under the FDA’s interpretation of the law, if the sales of the produce AND the cattle combined are over $500,000 annually, then the farmer isn’t exempt – and will have to spend tens of thousands of dollars complying with FSMA’s Produce Safety Rule, even if the vegetable portion of their farm is very small and entirely direct-to-consumer.
UPDATE: FARFA worked with two of our allies, RAFI-USA and R-CALF USA, on an amicus brief to the Department of Labor (DoL). We argued that the DoL did not need to find that live animals are “food” in order to hear the whistleblower complaint. Rather, FSMA clearly covers “animal feed” as well as the use of antibiotics in animals – both of which were also issues that Watts had raised.
On Friday, May 29, the DoL’s Administrative Review Board issued its decision, which was that Watts’ whistleblower complaint could go forward. Although the Board’s decision did not mention our amicus brief, it reflects the argument we made: Without deciding the question of whether live animals are “food” under FSMA, the Board noted that FSMA clearly governs animal feed. And since Perdue provides the animal feed to the farmers who raise the chickens for them, the FSMA whistleblower provisions apply.
This is the best possible outcome: The farmer’s whistleblower case will be able to proceed, without reinforcing the FDA’s overreaching claim that live animals are food.