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CU Comments on USDA Proposal to Use Federal Marketing Agreement to Oversee Safety of Leafy Greens

Comments of Consumers Union
Prepared by Elisa Odabashian, West Coast Director of Consumers Union Regarding
Handling Regulations for Leafy Greens Under the Agricultural Marketing Agreement Act of 1937
7 CFR Part 962–Docket No. AMS-FV-07-0090; FV07-962-1 AN (Page 56678 of Federal Register/Vol. 72, No. 192)

Consumers Union, the nonprofit publisher of Consumer Reports magazine and Consumer Reports Online, with more than seven million subscribers, appreciates the opportunity to provide comments on the USDA’s Advance Notice of Proposed Rulemaking regarding the proposal to handle regulations of leafy green products under the Agricultural Marketing Agreement Act of 1937.
We oppose the use of a federal marketing agreement to oversee the safety of leafy greens. Assuring the safety of leafy greens is the job of the US Food and Drug Administration (FDA) and that agency should more vigorously address the problem. Marketing orders were not established to address food safety, and are not an appropriate means for doing so. The experience of California in using this mechanism convinces us that marketing orders should not be used for this purpose.
In California, which supplies most of the nation’s salad bowl, a marketing agreement was recently put into effect to monitor the safety of leafy greens. Due to plummeting consumer confidence in the wake of last year’s deadly spinach E. coli outbreak that sickened 205 and killed three across 26 states, the leafy green industry lost approximately $100 million. In an attempt to shore up consumer confidence and to avoid being regulated from outside, the California leafy green industry—heavily influenced by Dole and other major players—developed its own best practices guidelines and trace-back systems, behind closed doors and without public comment. The industry appointed itself as the safety oversight board, including some of the very companies, such as Dole, which have been accused of marketing contaminated leafy greens. The resulting California Leafy Green Marketing Agreement, which is voluntary, was presented as the panacea for the safety of leafy greens. But if not all leafy greens in the marketplace are subject to the same safety standards, and if Good Agricultural Practices (GAPs) are not required on every farm and Hazard Analysis Critical Control Point (HACCP) programs are not required at every processing facility, the door remains open for contaminated produce to reach consumers.
This, in fact, has been borne out. After the marketing agreement went into effect in California, Dole Hearts Delight bagged salad mix was recalled due to E. coli contamination, and spinach produced by California grower Metz Fresh was recalled due to salmonella contamination. Industry self-regulation seldom protects consumers. Clearly, the use of a voluntary marketing agreement, developed by the very people who brought spinach and bagged salad mix contaminated with a particularly virulent strain of E. coli (0157:H7) to market, is not the way to restore consumer confidence or to ensure that another terrible outbreak does not occur.
The California Leafy Green Marketing Agreement utilizes a certification mark to convey that leafy green products from participating farms and processors are subject to Best Practices. This approach turns safety into value-added in the marketplace. The safety of the food we buy is fundamental to consumers, and government must ensure it. Food safety should not be something that consumers must search out and possibly pay extra for. All leafy greens in the marketplace should be equally safe.
Marketing orders were designed to establish and maintain orderly marketing conditions for regulated commodities, not to ensure the safety of those commodities. USDA and FDA are mandated to ensure the safety of foods that come to market. However, the FDA has issued guidelines for the growth and production of leafy greens which are completely voluntary, and companies growing and processing salad greens are inspected on average only once every 3.9 years. In addition, only one percent of the foods that are imported from other countries are inspected for safety, and FDA has no authority to recalled contaminated foods. It is little wonder, therefore, that consumers continue to have to worry about the safety of their salads.
Lawmakers must act decisively and immediately to give FDA and USDA mandatory recall authority to remove tainted food from the marketplace. Furthermore, Congress should establish a single food safety agency to ensure better safety of leafy greens, with substantial resources to hire more inspectors and enforce required GAPs on farms and required HACCPs at processing facilities. Until the highest safety standards are rigorously enforced by a single agency that has robust, mandatory authority to inspect produce, farms and processors, and recall contaminated leafy greens from the marketplace, consumers and industry will continue to be harmed by tainted food.
In the meantime, marketing orders are not the solution, but rather will deflect USDA and FDA from creating proper and meaningful measures to assure leafy green safety.