DIRECTOR, WEST COAST OFFICE
California Senate Select Committee on Food-Borne Illness
Public Informational Hearing on the California Department of Food and Agriculture’s California Leafy Green Marketing Agreement
Good morning. My name is Elisa Odabashian. I am the West Coast Director of Consumers Union, the nonprofit publisher of Consumer Reports magazine, with 4 million subscribers, and Consumer Reports Online, with more than 2.5 million subscribers. I appreciate today’s opportunity to comment on the CDFA’s marketing agreement to require leafy green industry participants to adhere to Best Practices for insuring the safety of America’s salad bowl.
Last fall’s deadly incident of E. coli contamination in spinach is part of longer history of contaminated leafy green products in California. According to the US Food and Drug Administration, there have been twenty documented incidents in the last ten years of California leafy greens contaminated with disease-causing organisms.
Over the last six months, the leafy green industry has lost $100 million due to plummeting consumer confidence in leafy green products in the wake of E.coli-tainted spinach that sickened 200 and killed five across 26 states. If there were ever a time for our government to do everything in its power to be transparent and objective in its development of industry’s safety standards, to be rigorous and thorough in its inspection of products before they get to market, and to be tough in its enforcement of standards in order to ensure the safety of the food supply and rebuild the trust of consumers, it is now. But utilizing a marketing agreement developed by the very people who brought us spinach contaminated with this particularly virulent strain of E. coli (0157:H7) is not the way to restore consumer confidence or to ensure that another terrible outbreak does not occur.
There are three serious drawbacks to the CDFA’s Marketing Agreement oversight mechanism:
First, we are seriously concerned that the CDFA is allowing the industry to create its own Best Practices standards behind closed doors without any public input; that the CDFA is allowing the oversight Board to be made up almost exclusively of leafy green industry representatives; and that the CDFA appears to be rubber stamping whatever Best Practices the industry comes up with. In recent communications with a CDFA official, I was told the following: “We will take the advice of the industry on the best practices. The roles of the marketing agreement/marketing order/CDFA inspection services division are verification and education, not environmental or health safety regulation (of leafy greens). The best practices guidelines and traceback systems are being developed by proponents of the marketing agreement and marketing order….This process is not required to follow the administrative procedures act. Nor does it follow the federal equivalent.” This willingness by CDFA to “take the advice of the industry” in developing regulations, and the admission by the CDFA that its role “is not environmental or health safety regulation of leafy greens” suggests a serious abdication of government’s duty to safeguard the food supply and protect the public. Industry self-regulation seldom protects consumers and often provides industry with cover when contamination occurs.
Under state and federal laws, standards are almost always put forward for Notice and Comment, so that the entire public has an opportunity to give input, and a government agency is required to consider all comments received. This process has the beneficial effect of getting input from a wide range of sources and experts, some of whom may have been previously unknown to the drafters of the standard. There should be a public opportunity for Notice and Comment before any Best Practices standards for the leafy green industry are adopted.
Our second concern is that, since industry participation is voluntary, the marketing agreement does not cover all leafy green growers and processors. Consumers cannot, therefore, be assured that all leafy greens that reach the marketplace will be as safe as possible. Experts agree that government standards and enforcement of Good Agricultural Practices (GAPs) for farms and Hazard Analysis Critical Control Point (HACCP) programs for processors are essential to maintaining the safety of leafy greens, and thereby consumer confidence. If not all leafy greens in the marketplace are subject to these Best Practices, the door remains open for contaminated produce to reach consumers, with all the attendant negative health effects, publicity and economic effects that that incurs.
Third and finally, we are concerned about the marketing agreement’s use of a certification mark to convey to consumers 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. Furthermore, if romaine lettuce, for example, is implicated in a future E. coli contamination incident, many consumers will not bother to ask whether the produce has the certification mark—they will simply stop buying all leafy greens for a period of time. And when the next incident of E. coli in leafy greens occurs, the certification mark on all those bags of lettuce and spinach and arugula will be rendered meaningless in the eyes of consumers.
In conclusion, the CDFA’s leafy green marketing agreement will not provide the extremely high standard of safety that the industry must achieve to keep and expand its market, due to the insular, exclusive way in which these standards are being developed, due to the fact that this agreement will not cover all leafy green growers and processors in California, and due to the CDFA’s willingness to allow the proverbial fox to police itself in the henhouse. We are also deeply concerned that this marketing agreement starts a trend toward using safety as a marketing tool for foods, and we vigorously oppose the use of a certification mark that suggests an added level of safety on some leafy green products and not on others.
The needed approach to the problem of contamination in leafy greens is for a California governmental agency that does not have as part of its charge the promotion of the leafy green industry—such as the California Department of Health Services—to be given the mandate to require and enforce GAPs on farms and HACCP programs for processing facilities through rigorous inspections and enforcement of standards that have been developed through a transparent, inclusive process. If this approach requires additional authority, budget and staff to do so, the California legislature should provide it during this legislative session.