National and regional marketing agreements and orders may give the U.S. Food and Drug Administration (FDA) some options as it continues to issue and revise rules to implement the Food Safety Modernization Act (FSMA).
In comments to the FSMA proposed rule for produce safety, a number of industry associations asked FDA to take into account food-safety programs that already exist under federal and state marketing agreements and orders.
For instance, the California Leafy Green Products Handler Marketing Agreement (LGMA) wants to ensure that FSMA does not add extra layers of inspections, audits, and documentation, which LGMA already requires of its members.
“[W]e are already verifying that members are in compliance with our standards. If our standards don’t already encompass or exceed what is in FSMA, then we will make sure they do,” said Scott Horsfall, chief executive officer of LGMA.
Horsfall further explained that his organization supports FSMA and is not asking for an exemption. Rather, LGMA is seeking more of a “partnership” with FDA.
The Almond Board of California seems to have taken a slightly different approach and has asked FDA to consider an exemption or variance for almonds.
In the Almond Board’s comments on the proposed rule for produce safety, the group notes that the California almond industry is subject to a federal marketing order issued and enforced by the U.S. Department of Agriculture (USDA). The marketing order requires a minimum 4-log reduction of Salmonella bacteria in almonds before they enter commerce.
As such, the Almond Board’s comments suggest that a rule for produce safety would be duplicative and unnecessary for almonds, which are essentially a low-risk food by virtue of the mandatory kill step requirement created and enforced by USDA.
The Scope of Marketing Agreements and Orders
Notably, marketing agreements and orders have some key differences. Membership to marketing agreements, whether at the state or federal level, is voluntary. But marketing orders set mandatory standards for all affected parties.
So, while membership with the LGMA is voluntary, once a member joins LGMA, compliance with their standards is mandatory. Notably, LGMA, in combination with Arizona Leafy Green Products Shipper Marketing Agreement, encompasses 90 percent of the leafy greens entering commercial markets.
In contrast, all almonds grown in California, which make up 99 percent of all commercial almonds in the U.S., are subject to the California almond marketing order.
What will be the Relationship between Marketing Agreements and FSMA?
At this point, FDA is not poised to create industry-specific variances and exemptions, at least not based on marketing orders and agreements.
“FDA does not intend to grant a blanket exemption to growers or signatories of marketing orders,” a spokesperson for the agency told Food Safety Website. “Alternatives to certain requirements would be permitted when adequate and documented scientific data or information support such alternatives.”
Moreover, FDA officials are both aware of, and willing to work with, existing or new compliance programs. As the FDA spokesperson stated, “[I]t is worth noting that rigorous food safety programs under national or regional marketing agreements can be an important tool for fostering compliance with the produce safety rule.”