Window Closing: Leafy Green Vegetable Marketing Regulation

Tuesday, July 26, 2011 @ 05:07 PM
posted by admin

USDA Moves Forward with Proposed Rulemaking on Federal

Leafy Green Vegetable Marketing Regulation

July 2011:  Deadline fast approaching to Submit Comments (July 28)

Comments in Support or Opposition to Proposed Marketing Agreement No. 970:  (Leafy Green Vegetables) should be filed with

Hearing Clerk

United States Department of Agriculture

1400 Independence Ave., SW., Room 1031–S

Washington, DC 20250–9200

Fax: (202) 720–9776

Or via the Internet at

Reference Docket Number: [Doc. No. AO–FV–09–0138; AMS–FV–09–0029; FV09–970–1]

Background: A September 2006 food borne illness incidence involving leafy green vegetables (spinach) resulted in a massive recall of spinach for fear of Escherichia coli (E. coli) contamination. Subsequently in 2007, members of the California leafy green vegetable industry initiated the establishment of a State marketing agreement for handlers of leafy green vegetables in which 99 percent of leafy green vegetables were covered.  In October 2007, Arizona enacted regulations which covered 75% of their leafy green production.  According to the USDA, participation in both the California and Arizona programs are voluntary, however; the requirements of these State marketing agreements are mandatory for all signatories within each respective State.

In June 2009, the following organizations petitioned the Agricultural Marketing Service division of the USDA requested the agency launch a federal rulemaking:

  • United Fresh Produce Association,
  • Produce Marketing
  • Association,
  • Georgia Fresh Vegetable
  • Association,
  • Georgia Farm Bureau,
  • Texas Vegetable Association,
  • Arizona
  • Farm Bureau, Leafy Greens Council,
  • California Farm Bureau,
  • California Leafy
  • Greens Products Handler Marketing Agreement,
  • Grower-Shipper Association of Central California,
  • Western Growers, and
  • The Imperial Valley Vegetable Growers Association.

These groups proposed “the establishment of a program that would oversee a systematic application of good agricultural production, handling, and manufacturing practices for leafy green vegetables. Proponents stated that the proposed agreement would minimize

the potential for microbial contamination in production and handling systems and would improve consumer confidence in leafy green vegetables in the United States market.”

The suggested program would:

  • Have voluntary participation
  • If company signs agreement would have mandatory compliance
  • Administered by USDA with Industry Comprised Administrative Board
  • Add two advisory bodies to (1) identification and development of audit
  • Metrics and (2) to advise the administrative body on research and development projects administered under the program
  • Financed primarily by fees assessed to signatory members based on their production
  • Secondary financing through contributions for research
  • Audit metrics would require USDA approval prior to implementation
  • It was suggested that audits be conducted by USDA  Inspection Service or “or persons or organizations authorized to audit on its behalf”

The USDA in their rulemaking acknowledges that a number of organizations opposed the development of this marketing agreement.  They include:

  • the National Organic Coalition (NOC)
  • Beyond Pesticides
  • Center for Food Safety
  • Equal Exchange
  • Food and Water Watch
  • Maine Organic Farmers and Gardeners Association
  • Midwest Organic Farmers and Gardeners Association
  • National Cooperative Grocers Association
  • Northeast Organic Dairy Producers Alliance,
  • Northeast Organic Farming Association-Interstate Council
  • Organically Grown Company
  • Rural Advancement Foundation International-USA
  • the Union of Concerned Scientists

Reasons for opposition by many included:

  • Costs associated with becoming compliant
  • The existing proliferation of audit requirements from private sector customers
  • The addition of a new and potentially conflicting set of audit requirements, and
  • ‘‘Audit Fatigue’’
  • The need for science-based production and handling requirements need for adequate peer-review of scientific studies used to establish them
  • Potential conflicts between existing Federal, State, and local conservation wildlife, and environmental regulations and any proposed metrics
  • The need for recognition of organic and other nonconventional production and handling practices in the development of audit metrics;
  • The appropriateness and authority for USDA oversight of the proposed agreement; and,
  • Whether there was the need for a national program

90 % of Production Already Covered by State Agreements

The USDA acknowledges that while there is leafy green vegetable production in every state, that 75% of all leafy green vegetables sold in the United States are produced in California and that 15% are produced in Arizona.  (Both states already have Leafy Green Marketing Agreements in place.) The remaining 10% is spread throughout the other 48 states and typically comes from small to medium size farms.

Other Regulations Already Exist

The FDA currently has Good Agricultural Practice Guidelines including

  1. ‘‘Guide to Minimize Microbial Food Safety Hazards for Fresh Fruits and Vegetables’’(1998), and the
  2. ‘‘Guide to Minimize Microbial Food Safety Hazards for Fresh-cut Fruits and Vegetables’’ (2008).
  3. A new FDA Guideline entitled, ‘‘Commodity Specific Food Safety Guidelines for Lettuce and Leafy Greens Supply Chain’’ is in the process of being finalized.

Furthermore, the FDA has a mandatory Good Manufacturing Practices (GMPs) regulation for manufacturers of fresh-cut leafy green vegetables.

The AMS of the USDA, in partnership with State departments of agriculture, offers a voluntary, audit-based program that verifies adherence to the two FDA guidelines that are final above (and conceivable when the new FDA guidelines identified above will offer audits)

Cost for Participation is High

  • The USDA estimates that the cost per acre to become initially compliant will be $14-34 per acre.  The USDA published two estimates for the annual cost of compliance:
    • $30-50 per acre
    • $48-105 per acre
    • Additionally, in California and Arizona, there would be additional costs for complying with the state marketing agreements.
    • Most small farms that produce leafy green vegetables also qualify as ‘handlers’ because they often market their products directly to consumer or to local markets.  The USDA provided that evidence shows that a small handler who is also a small producer would have audit verification or compliance related costs ranging from $67 to $95 per acre.

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