Cornucopia: Give us the science justifying almond pasteurization rule

Slid across the inbox last night, more intrigue about food safety regulation through marketing orders:


Cornucopia, WI – The Cornucopia Institute has filed a Freedom of Information Act request with the United States Department of Agriculture and the Almond Board of California seeking public documents justifying the merits of the almond pasteurization rule and the science supporting it.

Since the passage, in spring 2007, of the controversial rule mandating pasteurization of raw almonds grown in California, policy analysts at The Cornucopia Institute have made numerous requests for public information from the Almond Board of California (ABC). Repeatedly, the Almond Board has failed to turn over documents they allege prove the effectiveness of pasteurization and the comparative nutrition, quality, and safety of pasteurized almonds and raw untreated almonds.

Some in the industry, family-scale growers, organic farmers and handlers, retailers and consumers have vigorously protested the USDA-imposed pasteurization mandate of raw almonds and questioned whether it is based on sound research.

“We have taken this step because we have been frustrated by the Almond Board and the USDA’s unwillingness to share the science behind the rule, the science that purports to show that treatment with either a toxic fumigant or steam heat is safe and does not affect the almond’s taste and nutritional qualities,” said Will Fantle, research director for The Cornucopia Institute, a Wisconsin-based farm policy group.

The Almond Board claims that the EPA, the FDA, and the ABC's own "Technical Expert Review Panel" have undertaken "extensive research" to evaluate the effectiveness and safety of propylene oxide (PPO), the toxic chemical approved for use with almond pasteurization. Furthermore, they claim that these tests have demonstrated that PPO effectively kills Salmonella and other harmful bacteria, and that almonds treated with PPO are safe for consumption. However, they have refused to reveal the results of these or any other tests, including the results of a $1 million study commissioned by the ABC to assess quality degradation.

“If they have completed these studies, why won’t they share this research?” asks Eli Penberthy, a policy analyst with Cornucopia. She notes that she has made multiple requests to the Almond Board asking for a number of their studies and research documents.

One explanation may be that the studies are incomplete or unfinished. Cornucopia has learned that at least some of the studies were still being conducted nearly a year after the raw almond treatment mandate was implemented on September 1, 2007. Additional research results assessing the shelf life, oil stability, flavor, texture, and appearance of treated almonds are also supposed to be available.

“We find it very troubling that the proponents of the almond treatment rule, who portray this as a food safety measure, still cannot produce the science and studies upon which the rule is supposedly based,” said Penberthy. “The lack of data proves that the rule was passed prematurely and without sufficient review.”

The Cornucopia Institute helped 15 California almond farmers and raw almond wholesale handlers file a lawsuit on September 9 challenging the pasteurization rule. The lawsuit contends that the USDA lacked regulatory authority and acted illegally in implementing the almond pasteurization rule.

A Washington, D.C., federal court will be ruling on the lawsuit, perhaps later this year. If successful, the raw almond treatment mandate would be overturned.

“Many family-scale farmers producing almonds and fresh fruits and vegetables are now having their livelihoods put at risk by a number of onerous ‘technological fixes’ that corporate agribusiness is looking to for solving food contamination problems," added Cornucopia's Fantle. "These draconian regulations might very well push out of business the highest-quality and safest farm operations in the nation and, in doing so, will shut out growing legions of consumers who are seeking out a higher quality and more nutritious food supply."

More information on the federal lawsuit and the almond pasteurization controversy can be found on Cornucopia’s web page at www.cornucopia.org.

Can marketing orders regulate food safety?

Does the USDA have the legal authority to regulate food safety within the scope of marketing orders? Some almond growers are challenging the USDA's opinion that the agency does. Go here for the complete legal brief of the Cornucopia Institute's lawsuit against the USDA. From the summary of action:


Plaintiffs, growers, grower-handlers, and handlers of almonds in the State of California challenge the Final Rule of the United States Department of Agriculture (“USDA”) that unlawfully establishes outgoing quality control requirements on almonds grown in California. 72 Fed. Reg. 15021 (March 30, 2007), codified at 7 C.F.R. § 981.442(b) (“Final Rule”). The Final Rule restricts the available markets for Plaintiff almond growers’ almond crop, depriving them of revenue for their almonds in whole or in part. For the Plaintiff handlers, the Final Rule has resulted in the foreclosure of long-established markets for their almonds and in the most severe cases will result in the financial ruin of these growers’ operations. Similarly, the Final Rule has operated to reduce the amount that handlers of almonds can garner from the ultimate sale of their product and has eliminated established markets for untreated almonds. The marketing of almonds is governed by a marketing order issued under the authority of the Agricultural Marketing Agreement Act of 1937, as amended (“AMAA”). 7 U.S.C. § 601 et seq. Ultimate authority over the almond marketing order is vested in the Secretary of USDA. The AMAA provides the Secretary of USDA with limited authority to establish marketing orders for agricultural crops, including almonds. The AMAA, unlike many administrative statutes, does not grant general authority but instead carefully sets forth the terms that may be included in marketing orders. In the case of almonds, the permissible provisions are set forth at 7 U.S.C. § 608c(6) and (7).Plaintiffs seek a declaration that the outgoing quality regulations adopted by the Final Rule: (1) exceed the authority granted by 7 C.F.R. § 981.42, upon which USDA has premised the Final Rule and thus constitutes an ultra vires act; (2) if within the authority of the Secretary, creates a substantive rule adopted without the use of a formal rulemaking process and grower referendum, as required by the AMAA; and (3) exceeds the limited authority granted to the Secretary under the AMAA to regulate the outgoing quality of covered commodities and thus constitutes an ultra vires act. Plaintiffs further seek a declaration that the Secretary’s actions are unlawful and should be set aside by the Court pursuant to the Administrative Procedure Act, 5 U.S.C. §706, on the grounds that the Final Rule is arbitrary, capricious and not in accordance with law.

Federal lawsuit filed challenging USDA mandated almond treatment

I had some coverage of the raw almond dispute from my coverage of the fruit and vegetable advisory committee meeting on Monday. Today we received a follow up press release from Cornucopia Institute about their lawsuit. The legal point of law questions the federal marketing order's authority to regulate food safety issues, which obviously has huge implications for other marketing agreements and marketing orders now in effect or contemplated in the future for fresh produce. From the release:

WASHINGTON, D.C. – A group of fifteen American almond growers and wholesale nut handlers filed a lawsuit in the Washington, D.C. federal court on Tuesday, September 9 seeking to repeal a controversial USDA-mandated treatment program for California-grown raw almonds.

The almond farmers and handlers contend that their businesses have been seriously damaged and their futures jeopardized by a requirement that raw almonds be treated with propylene oxide (a toxic fumigant recognized as a carcinogen by the EPA) or steam-heated before they can be sold to American consumers. Foreign-grown almonds are exempt from the treatment scheme and are rapidly displacing raw domestic nuts in the marketplace.

Tens of thousands of angry consumers have contacted the USDA to protest the compulsory almond treatment since the agency’s new regulation went into effect one year ago. Some have expressed outrage that even though the nuts have been processed with a fumigant, or heat, they will still be labeled as "raw."

“The USDA’s raw almond treatment mandate has been economically devastating to many family-scale and organic almond farmers in California,” said Will Fantle, the research director for the Wisconsin-based Cornucopia Institute. Cornucopia has been working with almond farmers and handlers to address the negative impacts of the USDA rule, including the loss of markets to foreign nuts.

The USDA, in consultation with the Almond Board of California, invoked its treatment plan on September 1, 2007 alleging that it was a necessary food safety requirement. Salmonella-tainted almonds twice this decade caused outbreaks of food related illnesses. USDA investigators were never able to determine how salmonella bacteria somehow contaminated the raw almonds that caused the food illnesses but they were able to trace back one of the contaminations, in part, to the country's largest "factory farm," growing almonds and pistachios on over 9000 acres.Instead of insisting that giant growers reduce risky practices, the USDA invoked a rule that requires the gassing or steam-heating of California raw almonds in a way that many consumers have found unacceptable.

"For those of us who are interested in eating fresh and wholesome food the USDA's plan, to protect the largest corporate agribusinesses against liability, amounts to the adulteration of our food supply," said Jill Richardson, a consumer activist and blogger at: www.lavidalocavore.org.

“This ruling is a financial disaster and has closed a major customer group that we have built up over the years,” said Dan Hyman, an almond grower and owner of D&S Ranches in Selma, CA. His almond business relies on direct sales to consumers over the internet. Hyman notes that his customers were never consulted by the USDA or the Almond Board before they were denied “a healthy whole natural raw food that they have eaten with confidence, enjoyment and benefit for decades.”

The lawsuit contends that the USDA exceeded its authority, which is narrowly limited to regulating quality concerns in almonds such as dirt, appearance and mold. And even if the USDA sought to regulate bacterial contamination, the questionable expansion of its authority demanded a full evidentiary hearing and a producer referendum, to garner public input – neither of which were undertaken by the USDA.

“The fact that almond growers were not permitted to fully participate in developing and approving this rule undermines its legitimacy,” said Ryan Miltner, the attorney representing the almond growers. “Rather than raising the level of income for farmers and providing handlers with orderly marketing conditions,” added Miltner, “this particular regulation creates classes of economic winners and losers. That type of discriminatory economic segregation is anathema to the intended purpose of the federal marketing order system. “

Retailers of raw almonds have also been expressing their unhappiness, based on feedback from their customers, with the raw almond treatment rule. “We've been distributing almonds grown by family farmers in California for over 30 years and we regard them as the common heritage of the American people,” said Dr. Jesse Schwartz, President of Living Tree Community Foods in Berkeley, CA. “We can think of no reply more fitting than to affirm our faith that ultimately the wisdom and good sense of the American people will prevail in this lawsuit.”

Barth Anderson, Research & Development Coordinator for The Wedge, a Minneapolis-based grocery cooperative, noted that their mission has always been to support family farmers. “We weren't surprised when Wedge shoppers and members wrote nearly 500 individual letters expressing disapproval of the USDA's mandatory fumigation law for domestic almonds,” Anderson said. “Our members especially did not like the idea that fumigated almonds could be called ‘raw.’”

According to the USDA, there is no requirement for retailers to alert consumers to the toxic, propylene oxide fumigation or steam treatment applied to raw almonds from California.

“This rule is killing the California Organic Almond business,” said Steve Koretoff, a plaintiff in the lawsuit and owner of Purity Organics located in Kerman, CA. “Because foreign almonds do not have to be pasteurized their price is going up while our price is going down because of the rule. It makes no sense.” Koretoff added.

Two groups of consumers that have been particularly vocal in their opposition to the almond treatment rule are raw food enthusiasts and vegans. These consumers may obtain as much as 30% of their daily protein intake from raw almonds, after grinding them for flour and other uses. Studies exploring nutritional impacts following fumigant and steam treatment have yet to be publicly released. A Cornucopia Institute freedom of information request for the documents is awaiting a response from the USDA.

“We raw vegans believe raw foods, from non-animal sources, contains valuable nutrients – some not yet well-understood by scientists,” stated Joan Levin, a retired attorney living in Chicago. “These nutrients can be destroyed by heat, radiation and toxic chemicals. We support the continued availability of fresh produce free of industrial age tampering,” explained Levin.

Cornucopia’s Fantle noted that the Washington, D.C. federal district court has already assigned the almond lawsuit a case number, beginning its move through the judicial system. “We believe this is a strong legal case and hope for a favorable decision in time to protect this year’s almond harvest,” Fantle said.

TK: You may remember the USDA wanted but didn't get explicit language in the farm bill concerning marketing orders and food safety. It looks like the courts may have to settle this question. From the managers' statement on the final version of the farm bill:


(10) Implementation of food safety programs under marketing orders The House bill amends section 8c of the Agricultural Adjustment Act by authorizing the implementation of quality-related food safety programs under specialty crop marketing orders. (Section 10106)
The Senate amendment contains no comparable provision.
The Conference substitute deletes the House provision.
The Managers are aware that the Secretary has issued marketing orders which include quality-related provisions intended to enhance the safety of the commodities to which they are applicable. Therefore, the managers recognize that statutory language is unnecessary. It is not the Manager's intention to alter the Secretary's authority to incorporate practices to improve the safety of commodities in marketing orders, but rather, to encourage the development of programs of quality-related good agricultural, manufacturing and handling practices with full industry and public participation and in consultation with the Food and Drug Administration.

Cornucopia Institute to f/v industry committee - watch out for collateral damage to small farmers

Small farmers are sending the message that they will not necessarily go along with food safety regulations applied to "industrial-scale" operations. One of the guest speakers at the f/v industry advisory committee meeting this morning was Carlea Arnold, research associate with The Cornucopia Institute. During her presentation, she noted that the group is ready to sue over the issue of what they consider onerous regulation. Here are some excerpts from the text of her prepared remarks.

My goal here today, on behalf of the Institute, is to convey a simple message. In the industry's attempts to deal with the fallout from numerous pathogen related contamination incidents, we ask that you please be cognizant of any collateral damage new regulations might have, burdening the thousands of family scale fresh market producers around the country.

While the vast majority of the most dangerous and well-publicized outbreaks have been tied back to industrial-scale operations, in the United States and abroad, three is a vibrant subset of vegetable and fruit growers that by their very nature create less; these are the truly local and/or organic producers.

In the case of organic farms, producers are already highly regulated in terms of nutrient management. For the riskiest crops, they are prohibited from spreading raw manure and are required to compost waste.......

Organic growers are required to develop planning models and document through record keeping their adherence to Federal standards. They are inspected during the growing season by independent third party certifiers that are accredited by the USDA's National Organic Program.

Later....

For these reasons, The Cornucopia Institute strongly encourages any future discussion of voluntary or mandatory protocols to consider the needs of, and potential damage to, these important growers who have developed profitable niche markets.


Later......

We encourage you to enter into a dialogue with organizations representing the interest of local and organic growers in order to assure that they are not damaged by future rule making that addresses problems that they might very well may not be a part of.

In the form of a warning, The Cornucopia Institute filed a federal lawsuit last week challenging the legality of the USDA's almond pasteurization mandate.

The Almond Board of California, and the USDA, had the opportunity to help forge a compromise position, exempting smaller and organic producers form the almond pasteurization mandate. The chose not to collaborate in that effort and the result might be losing the rule that very well could have had legitimate application for the industry's largest growers.


Similarly, and to be very clear, we will aggressively defend the interests of family farmers if their economic well being is threatened y rule making that places them at a competitive disadvantage based on their scale. An insensitive one size rule does not fit all.

Later...

We invite discussion of these issues amicably, before the fact, rather than through debates in the marketplace under intense media scrutiny and the possibility for potential future litigation...


TK: There you have it. Produce safety regulations - whether voluntary or mandatory - may be challenged in courts by groups like The Cornucopia Institute who wish to spare small and organic farmers from "collateral damage." It will be interesting to see how much the committee decides to wrestle with this issue during today's meeting....

Almond fumigation objection (again)

In my earlier post about a raving raw almond fan, I noted that some consumers don't like the plan to "pasteurize" all California almonds. The story continues and here is the latest from the anti-fumigation crowd:
From a press release:



Small-scale farmers, retailers, and consumers are renewing their call to reassess a USDA plan to "pasteurize" all California almonds with a toxic fumigant or high-temperature sterilization process. All domestic almonds must have the treatments by early next year. The scheme was quietly developed by USDA in response to outbreaks of Salmonella in 2001 and 2004 traced to raw almonds. "The almond 'pasteurization' plan presents many harmful impacts forconsumers and the agricultural community," said Will Fantle, research director for The Cornucopia Institute, a Wisconsin-based farm policy research group. "The logic behind both the necessity and safety of the treatments processes has not been adequately analyzed-as well as the costs for small-scale growers and the loss of consumer choices." Last Wednesday, the California Almond Board suddenly requested a delay in the treatment mandate until March, 2008 -- it had been set for September1. "We support this delay," said Fantle, "but a delay, due to the industry being unprepared, isn't enough. The USDA must also re-open the rule for public review and comment so that those who have been shut out of the decision-making process can have input into any almond treatment plan." Almonds are not inherently risky foods. Salmonella contamination occurs when livestock manure or other fecal matter is inadvertently transferred to food through contaminated water, soil, transportation and handling equipment or from poor employee hygiene and sanitation practices. "All fresh foods carry some chance of risk," notes Bruce Lampinen, ascientist at UC-Davis, who studies almonds, "but there is no more risk now than there was thirty years ago." Many say the rule will competitively injure smaller sustainable and organic growers. "This will put American farmers at a distinct disadvantage in the U.S. and abroad," says organic almond farmer Mark McAfee. Jason Mahon owns Premier Organics, a company making raw almond butter in Oakland, CA. Mahon is looking to foreign suppliers and believes the rule is a "fear-based decision of the Almond Board trying to protect itself frombad press and lawsuits." The USDA's preferred fumigant, propylene oxide, is recognized as a possible carcinogen. It's banned in the European Union, Canada, Mexico. Allowing treated almonds to still be labeled "raw" is deceptive,contends Cornucopia. "This rule denies consumers the right to control their food choices by making informed decisions," Fantle added. For more details, go to http://www.cornucopia.org/.


TK: The Almond Board has no choice but to go forward at this point. Reaction from the raw almond fan base was probably considered when the decision was made. However, the Almond Board is in a no win situation. The media will never say: "Nobody is getting sick from eating almonds." They will point out the conflict and passion in this consumer outcry.