Texas Ag Department threatens to undermine the Tester-Hagan Exemption! Are other states next?

In 2010, FARFA led a national coalition, together with the Western Organization of Resource Councils, that succeeded in getting an amendment added to the Food Safety Modernization Act. The amendment, sponsored by Senators Tester and Hagan, provided that farms that gross less than half a million dollars a year and that sell more than half of their products directly to consumers or local restaurants & retailers, have a “qualified exemption” from whatever rule the FDA issued governing the growing of produce.

The exemption was labeled “qualified” because the exemption could be revoked if the farm was linked to a foodborne illness outbreak or if the agency had reason to believe that it was growing food under unsanitary conditions.

We also won an exemption for micro-farms, those selling less than $25,000 in produce a year.

Because of how highly consolidated our food system is, the vast majority of the food Americans eat comes from larger farms and farms selling wholesale into long distribution chains. So FDA estimates that the two exemptions cover less than 5% of the food grown and sold in this country. But they cover more than 70,000 farms – the vast majority of the farms selling at farmers’ markets, through CSAs, to your local co-op, etc.

The exemption is vital to the survival of these small farms. As we anticipated, the regulations that FDA developed are complicated, covering every facet of growing, and frankly impractical for small, diversified farms. FDA’s own estimate is that the regulations would cost a small farm almost $25,000 each year to comply with – and that’s almost certainly an underestimate. Most of our farms selling locally would simply go out of business because of these costs.

That’s why we fought so hard to get Congress to include the exemption in FSMA! Thousands of people across the country called and wrote their legislators, in a massive campaign to protect our all-too-small sustainable, local food movement from destructive and unnecessary regulations.

And, thanks to all of you and many others, we won. When Congress passed FSMA in 2010, it included the Tester-Hagan provisions. And when the FDA adopted rules to implement FSMA in 2015, the exemptions were unchanged.

Now we get to the issue of actually implementing and enforcing the regulations. The FDA’s preference is for state agencies to do the primary implementation and enforcement, using federal funding. When faced with the question of whether we preferred to have FDA enforce the rule, or the Texas Department of Agriculture, FARFA – together with every other ag group in the state – agreed that we preferred to deal with TDA. But that was only after we had multiple meetings with TDA and explicitly discussed that the agency would enforce FSMA – with no added regulations.

In 2017, TDA was given authority by the Texas Legislature to implement FSMA in our state. And then shortly after, TDA staff stated at a meeting that the agency planned to require every farm to register with the agency – something that is not part of FSMA. We sent a letter to the Commissioner, explaining our objections. [READ IT HERE.] The Commissioner chose not to respond to us directly, but TDA staff stated at a public meeting in June that the agency had changed its direction and would NOT be requiring registration.

Then, on December 14, the TDA published its proposed rule to implement the Produce Safety Rule – and the proposed rule requires every farm  to submit an “annual survey” to the agency, empowering TDA to determine from the information submitted whether or not the farm is exempt.  To make it worse, the proposed rule provides that if a farmer fails to submit the annual report within 60 days of the deadline, the farm will be presumed to be subject to FSMA’s substantive requirements, from water testing to employee training, which are estimated to cost $25,000 per year.

In other words, a small farm that fails, for whatever reason, to file the annual report with the TDA will effectively be put out of business unless it can somehow reverse the agency’s presumption.

Why is the agency doing this? We don’t know for certain, but we can guess. As part of the funding agreements with the states, the FDA wants an inventory of all farms. Initially, TDA proposed creating the inventory through a voluntary registration program. As we pointed out to the agency, if they want people to sign up voluntarily, they need to give the farmers a good reason – what benefit does the farmer get? We made multiple suggestions as to how to work cooperatively with farmers. But rather than do that, TDA has apparently decided it’s easier just to force everyone to register using the threat of inspections and enforcement actions.

Whatever state you live in, find out what your Agriculture Department is proposing and let us know! We are betting that Texas is either the “test” state for this approach, or that multiple states will quickly be proposing the same thing, since all the state ag departments have been working together on FSMA implementation.