Why the Tester Amendment Does NOT Help Small Food Producers Under S.510

The Tester “Small Farm” Exemption to S.510 Exposed as a Scam: Part 1

Dark Days for Small Farmers (photo: Life.com)

Some of our readers and others have requested that we reference specific sections of the Tester Amendment to food safety bill S. 510 to outline why this does not help or exempt small food producers. The amendment has been sold to the critical public as “exempting” small farms and food producers from the entirety of the heavy-handed regulations of the Food Safety Modernization Act. Yet, nothing could be further from the truth.

These small producer exemptions are only for “qualified facilities” and only pertain to subsections (a) through (i) and subsection (n) of S.510 — as outlined on page 5, line 15 in the Tester Amendment:

(2) EXEMPTION. –A qualified facility–

(A) shall not be subject to the requirements under subsections (a) through (i) and subsection (n) in an applicable calendar year.

Therefore, even a “very small business” making less than “$500K per year,” doing business “within 275 miles” and directly with “end-user customers” is still required to adhere to all of the regulations in the remaining subsections of the bill. That’s point number one which I’ll return to in Part 2 of this essay.

Curiously, the only mainstream story to cover the contents of the Tester Amendment was a four-sentence article by the Associated Press which was released on a Friday and seemed purposely short on details. It only makes the claim that the Tester Amendment allows “some” small farms to “avoid expensive food safety plans:”

The agreement brokered by Tester would allow farmers who make less than $500,000 a year in revenue and sell directly to consumers, restaurants or grocery stores within their states or within 275 miles of their farms to avoid expensive food safety plans required of larger operations. (My emphasis in bold)

These expensive food safety plans are apparently a reference to subsection (h) of S.510:

Written Plan and Documentation– The owner, operator, or agent in charge of a facility shall prepare a written plan that documents and describes the procedures used by the facility to comply with the requirements of this section, including analyzing the hazards under subsection (b) and identifying the preventive controls adopted under subsection (c) to address those hazards. Such written plan, together with the documentation described in subsection (g), shall be made promptly available to a duly authorized representative of the Secretary upon oral or written request.

Ironically, the Tester Amendment clearly states that in order for a small producer to become a “qualified facility” for these exemptions, they must submit the following to the Secretary upon request:

3 years of comprehensive financial records indicating less than $500K in gross sales (Pg. 4, Line 11)
I. Documentation that the owner, operator or agent of the facility has identified potential hazards associated with the food being processed, is implementing preventative controls to address those hazards, and is monitoring the preventative controls to ensure that such controls are effective (Pg. 5 line 20).
II. Documentation (which may include licenses, inspection reports, certificates, permits, credentials, certification by an appropriate agency (such as the State Department of Agriculture) or other evidence of oversight), as specified by the Secretary that the facility is in compliance with state, local, county, or other non-Federal food safety law (Pg. 6, Line 5).

Those requirements bear a striking resemblance to the “expensive” food safety plans outlined in subsection (h) of S.510 that small producers are supposedly exempt from. In other words, they must submit similarly comprehensive plans just to qualify to be exempt from creating them. But it gets worse.

If Grandma wants to sell her famous raspberry jam at the county fair (within 275 miles of her canning kitchen) she will indeed be qualified for small producer exemptions, but not before she forks over 3 years of financials, documentation of hazard control plans, and all local licenses, permits, and inspection reports. She must submit this documentation to the satisfactory approval of the Secretary; and if she fails to do so, the entirety of S.510 can be enforced on her. That’s hardly what I would call an exemption.

Because small producers are being forced to jump through stringent local and Federal regulatory hoops just to qualify, the bill appears to be designed not to make it “illegal” to sell homegrown goodies, as some suggest, but to make the system so cumbersome that small producers will say forget it and give up their local food business — which is what many, including yours truly, have speculated is the hidden corporate agenda of the bill.

Forget the alarmist claims made by S.510 critics for moment. The one thing this bill will undeniably do is squeeze the little local guy out of the food industry through excessive regulation — regardless of the political backslapping or media joy over bipartisanship and propaganda over “exemptions.” The bottom line is that it’s common sense that local organic farmers produce a healthier and more nutritious product than their factory-farm counterparts, yet it is those promoting health who will suffer the most under this food “safety” bill.

Stay tuned for Part 2 where I will expose the remaining subsections of the bill that apply to even those with so-called small producer exemptions.