COOL Comment: Campaign for Family Farms

Another COOL comment, this time arguing from the perspective of small producers in the Midwest. Cut out some reference to meat issues.

September 30, 2008

Country of Origin Labeling Program
Room 2607-S
Agricultural Marketing Service (AMS)
USDA
STOP 0254
1400 Independence Avenue, SW
Washington, DC 20250-0254

FROM: The Campaign for Family Farms and the Environment

RE: Comments on the Agricultural Marketing Service interim final rules on Mandatory County of Origin Labeling of Beef, Pork, Chicken, Goat Meat, Perishable Agricultural Commodities, Peanuts, Pecans, Ginseng, and Macadamia Nuts published at 73 Fed. Reg. 45106-45149 (August 1, 2008).

The Campaign for Family Farms and the Environment (CFFE) is an action-oriented coalition that supports family farms, clean air and clean water, and works to stop government and agribusiness policies and practices that are detrimental to America’s family farmers, our rural communities, our public health, and our environment. CFFE and its member groups help family farmers and rural residents organize against corporations that use intimidation and the power of their capital to control communities and local governments. We want family farms, corporate-backed not factory farms, producing our food.

CFFE is made up of three statewide membership-based organizations: Iowa Citizens for Community Improvement, Land Stewardship Project (MN), and Missouri Rural Crisis Center. CFFE also has individual members from across the country.

Country of Origin Labeling (COOL) will allow consumers to know where their meat comes from, and would therefore give American family farmers an advantage in the market. COOL could also be used as a tool for independent producers to educate consumers about the importance of keeping family farmers on the land. CFFE strongly supports full and immediate implementation of COOL that closes unnecessary loopholes and protects and supports independent family farmers.

Exemptions to Labeling Requirements are Too Broad

There is also no justification for exempting as a “processed food item” covered commodities simply because they are mixed with other covered commodities. Broadly exempting all mixed vegetables and mixed fruits from the labeling requirements is excessive. Consumers will be angered by the fact that they will be able to identify the country of origin of a package of frozen strawberries and of a package of frozen blueberries, but they will not be able to determine the country of origin of a package of frozen mixed strawberries and blueberries. Consumers will expect that if frozen peas must be labeled and frozen carrots must be labeled, that a frozen mixture of peas and carrots would also be labeled.

The regulatory definition of “processed food item” should be changed to ensure that for meat products to be exempt from the labeling requirements they must be cooked, cured, smoked, or restructured and combined with another substantive food product. The revised regulatory definition should make clear that preservatives and spices are not substantive food items. In addition, the phrase “or that has been combined with at least one other covered commodity” should be eliminated from the regulatory definition to ensure that simply combining two covered commodities does not exempt them from labeling requirements.

Ensure Producer Record Requirements are Not Burdensome

The 2008 Farm Bill amendments to the country of origin labeling legislation demonstrate Congress’s intent to ensure that producers of covered commodities are not unreasonably burdened by demands from the buyers to produce records proving the country of origin of their commodities. For example, the law expressly accepts producer affidavits and animal health records as being sufficient to substantiate any country of origin claim in an audit. 7 U.S.C. Section 1638a(d)(2)(A). To ensure that buyers of covered commodities do not make unreasonable requests for information from producers that could be construed as unfair, unreasonably burdensome, or an effort to place undue pressure on the producer, the regulations should be amended to state clearly that “any burden on producers to produce evidence of country of origin of their commodities should be kept to the minimum necessary to substantiate the claim, recognizing animal health records or an affidavit from a person with first hand knowledge of the origin of the specific commodity involved in the transaction is sufficient for audit purposes.”

Remove No Private Right of Action Language

In its prefatory comments to the interim final regulations the agency states that allowing a private right of action to enforce the provisions of this legislation would frustrate the agency’s ability to enforce the law and, therefore, private parties should not be allowed to bring legal actions to enforce country of origin labeling requirements. It is true that the legislation gives the Secretary some authority to enforce the labeling requirements through notice, hearing, and imposition of small fines. However, the law does not expressly prohibit private rights of action for enforcement. Given the limited resources the agency will have to ensure proper enforcement of this law that applies to a vast amount of consumer food products, private action enforcement would compliment the agency’s efforts and may be necessary to ensure full compliance with the legislation. When Congress does not expressly establish a private right of action to enforce a law it is up to the courts to determine whether there is an implied cause of action for private parties to bring enforcement actions. Whether there is a private right of action is not left to the agency’s determination. In any subsequent Federal Register publications related to the country of origin labeling regulation the agency should withdraw its statements regarding private rights of action.