EPA has continued to pursue regulatory reform, inviting state and local leaders to Washington, DC to discuss
EPA’s strategy to rescind and replace the Waters of the
United States (WOTUS) rule, stating that the agency
plans to use an expeditious two-step process. A few
months ago, the U.S. Food and Drug Administration
announced it was extending the comment period related
to the regulation of foods from plants produced using
genome-editing technologies. As you know, this new
and evolving technology could have significant benefits
for the fruit and vegetable industry for developing new
varieties that enhance consumer benefits, while helping farmers address drought, pest and disease, and food
Congress is also poised to pass H.R. 5, the Regulatory
Accountability Act of 2017. The legislation would modernize the Administrative Procedures Act and improve
transparency and accountability in the rulemaking process for federal agencies.
Fresh Fruit and Vegetable Program:
Keeping “Fresh” in the Fresh Fruit and Vegetable
Program (FFVP) continues to be a top priority and an
ongoing policy challenge that will intensify as Congress debates the 2018 Farm Bill. The highly successful
FFVP provides 4 million low-income elementary school
students with a fresh fruit or vegetable snack every day
at school. The FFVP introduces young students to a wide
variety of fresh fruits and vegetables, positively impacts
their attitudes, and increases their consumption at school
and at home.
The processed fruit and vegetable industry has waged the
policy “fight” over FFVP for several years in an attempt
to include “all forms of processed fruits and vegetables”
in FFVP. While we expect that fight to continue, we have
more good news on our side. A recent evaluation of an
“all forms” pilot in 4 states demonstrated that including
processed fruits and vegetables in FFVP actually decreased student’s fruit and vegetable consumption. This
study also clearly documented that students prefer fresh
fruits and vegetables over processed. Evaluation results
notwithstanding, we still expect a challenging fight to
protect the FFVP as “Fresh” in the 2018 Farm Bill.
The evidence keeps mounting – from the FFVP pilot program above to the recently released Review of WIC Food
Packages: Improving Balance and Choice by the National
Academy of Sciences (NAS). This important new review
calls for significantly increasing fruits and vegetables in
WIC Food Packages by $24/month, providing additional
fruits and vegetables to incentivize breast feeding, and
offering a choice of more fruits and vegetables instead of
juice and jarred baby food. In WIC Forums all over the
country, WIC participants and WIC program directors
have consistently asked for more fruits and vegetables.
More than a decade ago, the first inclusion of $800 million in fruit and vegetable vouchers for WIC recipients
each year helped to stem the tide of childhood obesity in
the earliest years of development. The new NAS recommendations provide a tremendous opportunity to work
with the National WIC Association and other stakeholders to urge USDA to incorporate these recommendations
into policy, which would significantly increase access to
fresh fruits and vegetables. But, we need to be prepared
for a major fight with other food sectors.
Supplemental Nutrition Assistance
Program (SNAP) Opportunities:
The debate over whether SNAP (food stamps) should be
a nutrition and health program or merely a cash-transfer
welfare program, is finally at hand. Many organizations
are now calling for policy changes in the 2018 Farm
Bill that will modify SNAP to promote healthier eating
habits. SNAP is the largest nutrition safety net in the U.S.
providing 42 million low-income Americans, nearly half
of them children, with food assistance each month. And,
SNAP is the only federal nutrition program that has not
been aligned with the U.S. Dietary Guidelines.
To date, SNAP remains with no restrictions on what foods
can be purchased. The 2014 Farm Bill included a $100 million FINI Grant Program to fund pilot projects to incentivize
SNAP recipients to purchase more fruits and vegetables.
Even though money is tight, incentives have been easier
to advance than restrictions or wholesale changes to make
SNAP operate more like WIC. But, over the past year, consider some of the latest developments:
° The House Agriculture Committee has hosted 17
° State SNAP agencies have requested waivers to
restrict purchases of sugar-sweetened beverages
° Double Up Food Bucks and other FINI projects
funded have demonstrated the effectiveness of produce
° The American Heart Association has called for a
major SNAP pilot that combines SSB restrictions with
° Many Republicans in Congress are beginning
to question why federal tax dollars are paying for
unhealthy foods that just exacerbate public health
care costs rather than help SNAP recipients find more
healthy eating patterns for better health.
The 2018 Farm Bill debate on SNAP can be a turning
point in how we think about this program. While not
likely to see radical change this time, the debate will set
the stage for long-term consideration of moving SNAP
toward a public health nutrition program to better serve
the people who need it most, and better allocated federal
resources. For 2018, the fight will be for increased funding for produce incentives; ensuring that SNAP families
can benefit from produce incentives in supermarkets
and major retail channels year-round; and building an
evidence base for longer-term significant policy change.
FSMA Regulatory Actions
Most major FDA regulations stemming from the
Food Safety Modernization Act are now final and are
in varying phases of implementation. The final rules
reflect stakeholder input but are far from perfect and
implementation will be a bumpy road. There are two
major issues that we feel are unworkable and warrant a
reconsideration of the rules themselves:
• Farm/Facility differentiation that dictates if
operations follow the Produce Safety Rule or
Preventive Controls Rule.
o Currently, facilities required to register with FDA
(that manufacture, process, pack or hold food) must
follow the Preventive Controls Rule (perform a hazard
analysis, identify and implement preventive controls,
document everything). Farms follow the Produce
o The definition of “farm” is complicated and not
intuitive. It includes some packinghouses and cooling
operations but not others.
o Proposed solution: any operation handling produce
raw agricultural commodities (RACs) should fall
under the Produce Safety Rule. This means that a
registered facility could still comply with the Produce
Safety rule rather than Preventive Controls rule.
• Ag Water (in the Produce Safety Rule)
o Prescriptive requirements would require farms to use
a method that is only offered by a few labs in the country (EPA method 1603) and is very expensive, specifies
how many samples need to be taken (5/year) that need
to get to the lab within six hours, involves some math,
and generally speaking is not practical. It’s also impossible to tie it to protecting public health.
o FDA has stated at meetings and on its website that it
is considering ways to simplify the ag water standards,
but will not commit to the scope of reconsideration, or
o We expect a report organized by the Center for Produce Safety to support the use of alternative methods
(that are more readily available and cheaper).
o Solution: Our preference is to remove prescriptive
language from the rule and include the CPS options,
the current FDA requirement, and alternative considerations, in an FDA guidance document.
B. Coalition to Challenge Park Doctrine
The language in the Food Drug and Cosmetic Act
(FDCA), and legal precedent set by the Park Doctrine, put food industry executives at risk of criminal
liability in the event of a food safety issue, even if they
were not aware of the issue. A few food industry trade
association legal representatives are exploring three
options to address this:
° Amend the FDCA to situations described in FDA’s
regulatory procedures manual. This requires Congress
passing legislation, and is a major challenge but potentially the best solution.
° Add a “good faith” clause to the FDCA for internal
investigations. Similar challenge as above.
° Seek legal precedent establishing that the Due Process Clause prohibits imprisonment for Park Doctrine
offenses. There is currently a case on appeal to the
Supreme Court (Austin “Jack” DeCoster and Peter DeCoster v. United States of America (Case No. 16-877))
that could advance this precedent if the Court accepts
and agrees with our interpretation.
In relation to the third option, the U.S. Supreme Court
denied a petition to hear the case which leaves in place
a fractured Eighth Circuit Court decision upholding
the DeCosters’ three-month prison sentences – one that
has been previously called the most significant Park
Doctrine ruling in over four decades. The coalition is
regrouping to decide what the next steps are to address
this important issue.
In addition, Jeffrey Steger, assistant director of the
U.S. Department of Justice’s consumer division, said
no one should expect any lessening of DOJ’s backstopping FDA’s enforcement actions. DOJ has several
high-profile food industry prosecutions under its belt
and Steger expects the trend will continue. He also
indicated that DOJ favors preservation of the Park