The Fruit Growers News - October 2000


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Doing A 180 Rule may cause disruption in food supply
By Lee Dean Managing Editor
A new approach to the way the federal government handles pesticide residues in food already in the distribution chain is signaling alarm bells in the produce industry. The new policy, triggered by the Food Quality Protection Act (FQPA), has been proposed by the Environmental Protection Agency (EPA) and the Food and Drug Administration (FDA) to cover the insecticide methyl parathion. This material was effectively banned in August of 1999. This policy for methyl parathion would set a precedent and would apply to all crop protection materials that are voluntarily canceled. In the past, EPA recognized that such a cancellation leaves inventories of foods that had residues of pesticides that were legal at the time the food entered the pipeline. These foods were then allowed to clear the food distribution system. The time needed for such foods to clear the system ranges from days (fresh produce) to years (frozen foods). Under the new policy, EPA says it will begin revoking tolerances of foods within 180 days of voluntary cancellation. The job of enforcing the revocations would be up to the FDA. Unless a food handler can prove that residue present is the result of a legal application, the food would be out of tolerance – or “adulterated” – and would then need to be removed from the distribution chain. Food industry organizations have expressed their concerns to EPA and FDA officials without result. A comment period on the new rule has just closed. Now officials are attempting to find a legislative remedy to the problem. They stress the argument is not about ends, but about means. “The goal for both EPA and us is the same – moving food that has been treated on a product that has been canceled through the pipeline,” said Jerry Hill, Washington D.C. representative for the National Potato Council. “Their way would create problems in the marketplace. Our way is to say ‘you’ve already canceled us. Let whatever’s been treated move through the marketplace and then revoke the tolerance at that point.” At any time over the next several weeks or months, the two agencies can come out with the new rule. Hill does not expect the comments received to change the stance of the agencies. Thus, the only realistic opportunity to stop the rules from being implemented is by legislation, which would almost certainly take the form of an attachment to one of the appropriations bills now under consideration. The Minor Crop Farmer Alliance (MCFA) filed comments in opposition to the regulations. MCFA is concerned the new rule has the potential to cause serious disruptions in both the domestic and international marketplaces. “We are opposed to the policy because it really has the potential to hurt growers,” said Jim Cranney, vice president of the U.S. Apple Association (USApple). “We read the law and the understand the spirit of the law to be different than these two agencies are looking at it.” Processors and other food handlers may be reluctant to purchase foods that have been treated with the affected pesticides at all. A company may conclude it doesn’t want to get involved in the thicket of paperwork required to prove when a material was actually applied, said Hill. So, the company could just tell a grower it will take no more raw product after the date of a tolerance cancellation, and move what product is in the pipeline without extensive record-keeping. The safety of the nation’s food supply is not an issue, with the issue revolving around how treated food will be distributed and not whether it should be distributed. Yet, some food industry leaders are concerned that actions arising from the change in policy may be construed as a food safety issue. “If you have documentation that you treated a crop such as spinach when the use was still legal and in place, there is no problem under the new rule,” said Cindy Baker of Gowan Company, a member of EPA’s Committee to Advise on Reassessment and Transition. “But activists can make the charge that the tolerance was changed, so that anything that has residue is adulterated.” USApple’s Cranney expressed concern over what could happen in the case residues are detected in foods and no tolerance is in place. In this scenario, the processor will be forced to prove the food is legal. “The retailers will not put themselves in the position of having to prove it – that will be the responsibility of the shippers,” he said. “That adds a lot of work, time and hassle to processors, and adds potential liability. If they can’t prove it, they have nothing to do but destroy the product or take it out of the marketplace. Look at what’s happening now with Firestone. No one wants to be in that position.” What happens if a food product is the result of a mixture of raw products, such as a blended fruit juice or bag of mixed frozen vegetables? The FDA gives the example of a blended frozen pear and apple juice concentrate product. The food processor has records to show that the pear concentrate was purchased before the cancellation of the pesticide. However, because the product is a blend, the company would also have to prove the apple concentrate also met the provisions of the law. How would the food company do this? FDA says the firm would have to have documentation advising its suppliers to not provide apples treated with the pesticide in question, documentation from the supplier indicating it has not provided apples treated with the pesticide, and additional documentation proving the supplier had tested the apples for residue. This example demonstrates the burden on the food marketing system the new regulation would create, according to MCFA. In its comment on the rule, MCFA notes the added cost of establishing such a pesticide residue testing program, a cost that is difficult to pass on to the consumer. “The net result of the FDA’s policy is counter to the orderly marketing of foods,” according to the MDFA comment. The buyer is actually encouraged to include a specification that the food it is purchasing has not been treated with cancelled pesticides. If such advice is followed, what happens to the inventory of foods which cannot meet this specification? This is not food that EPA has advised in any way should not be consumed. Is FDA willing to purchase this food since it has suggested a course that will essentially reduce the value of the treated inventory of food?” The current effort to achieve a legislative solution by way of pressuring elected officials is the only tactic left to the industry, said Cranney. “We exhausted every possible option in working directly with high-level management at FDA and EPA,” he said. “I don’t know what the reasons are why they chose not to accept their input.”