According to Underhill, however, Tester-Hagan’s $500,000 ceiling doesn’t conform to everyone’s definition of a small family farm, given typical agricultural profit margins of around 10 percent. “In some Northern California counties, $50,000 is considered low income. You don’t need to be big to make that much. I know strawberry farmers who gross more than half a million dollars on 10 acres.” He worries that FSMA will hamper organic farmers seeking to scale up: “I’d hate to see a class system in agriculture where you have the big professional growers on top, and then everyone else who will be kept at a certain size by the rule.”
Confusing as the myriad, and continually evolving, rules and guidelines may be, details regarding enforcement remain far murkier. The FDA, empowered by the letter of the law to inspect farms, has relegated the task to state agriculture departments. Will they accept the mission? The Ohio Department of Agriculture, at least, has pledged to do so. In reality, enforcement will fall primarily to third-party auditors. FSMA holds wholesalers, distributors, and processors responsible for all food procured, and they’re not expected to purchase produce from a farm unless it has paid for, and passed, an audit by a recognized firm.
Another final wild card affecting the FSMA rollout: President Donald J. Trump. Last year, his campaign cited the “food police” as an example of government overreach, and his current proposal to cut $108 million from that portion of the FDA’s fiscal 2018 budget would certainly hamper implementation and enforcement.
Regardless, FSMA compliance won’t absolve growers of liability. After all, the Jensen brothers were arrested and sentenced long before the act’s effective due date. For a sure fire safety net, farmers will want our hyper-litigious society’s preferred means of protection – insurance, in this instance, specific policies related to products and product recalls, which tend to be tailored to large, single-crop operations.
“I’d hate to see a class system in agriculture where you have the big professional growers on top, and then everyone else who will be kept at a certain size by the rule.”
Rachel Armstrong, a Minnesota attorney and founder of the nonprofit Farm Commons, points out that a sickened consumer will usually target the grocery store, who will pass the buck down to the food processor or distributor, who will inevitably blame the farmer. Each entity possesses fewer assets than the one above it and is, therefore, more likely to lose in court. Armstrong’s response to frustrated independent farmers: “I’m sorry, guys, but you’re caught between a rock and a hard place. You can’t afford a policy that insures you for the risks you’re likely to experience. In the meantime, grow as safely as you can.” Is that a reassuring legal strategy? “No,” she admits. “But this is a big problem. I honestly think it is one of the biggest problems facing the local food movement right now.”