National Headlines Touting FSMA Rules May Leave Businesses Unprepared

When The New York Times headline reads U.S. Makes Final Array of Rules on Food Safety, readers pay attention. And when Fox News promotes the same topic in its piece FDA issues final rules on produce safety, imported foods, readers expect they won’t be reading about Salmonella outbreaks linked to imported cucumbers such as the multi-state warning issued by the FDA.

The issuance of several final FSMA rules in November 2015, combined with almost weekly headlines about food recalls – the most recent being E. coli outbreaks from contaminated celery in businesses ranging from Costco, Safeway, Starbucks, Target and Walmart – has been troubling. This “ping ponging” of headlines has the potential to leave many consumers confused about how such outbreaks can occur in spite of the new rules.

Produce Rule Exemptions

Despite the rules having been put into place, compliance is not immediately required and many items are exempt. Taking Produce Safety as an example, exempted produce include the following items:

• Asparagus; black beans, great Northern beans, kidney beans, lima beans, navy beans, and pinto beans; garden beets (roots and tops) and sugar beets; cashews; sour cherries; chickpeas; cocoa beans; coffee beans; collards; sweet corn; cranberries; dates; dill (seeds and weed); eggplants; figs; horseradish; hazelnuts; lentils; okra; peanuts; pecans; peppermint; potatoes; pumpkins; winter squash; sweet potatoes; and water chestnuts
• Food grains, including barley, dent- or flint-corn, sorghum, oats, rice, rye, wheat, amaranth, quinoa, buckwheat, and oilseeds (e.g. cotton seed, flax seed, rapeseed, soybean, and sunflower seed)
• Produce that is used for personal or on-farm consumption
• Farms that have an average annual value of produce sold during the previous three-year period of $25,000 or less

The rationale is these items are rarely consumed raw, which is true in some cases but not in all. This leaves consumers vulnerable and exposed when they eat raw cranberries, pecans, figs, and dill weed, for example.

Produce Rule Compliance Dates

Another consideration that consumers are typically unaware of is the fact that FSMA compliance dates vary by business.

• Very small businesses, those with more than $25,000 but no more than $250,000 in average annual produce sales during the previous three year period: four years
• Small businesses, those with more than $250,000 but no more than $500,000 in average annual produce sales during the previous three year period: three years
• All other farms: two years

Where does this leave restaurants, grocers and produce markets? In the eyes of the consumer there is a belief that FSMA ensures their safety and health. In reality, the produce rules are not in effect for the next two years. In the end it really doesn’t matter what is exempt or that the rule is not yet being enforced, producers, distributors, wholesale and retail outlets all share the liability of outbreaks.

During the next two years producers and distributors with robust food safety systems and culture will be in demand. And during the next two years major retail chains will reward those suppliers with their business leaving the less prepared behind. Regardless of the size or well meaning of the business, those in the food chain share the risk of foodborne illness. Businesses of all sizes from producers, processors, distributors, wholesale and retail outlets will be well served with an early, robust and thorough implementation of applicable FSMA rules.