As traceability procedures become enacted, funded and effectuated, what does that mean ultimately to the processor and to the farmer? Obviously, consumer safety is the industry’s primary focus. They buy the product and without them, where would we be? Public safety is obviously not simply the concern of the private entrepreneur.The government must have a hand in regulating and enforcing public safety measures. As we trace the product back to a particular processor, is the processor responsible for providing the information necessary to trace the produce that was distributed into the stream of commerce back to a particular farm?
Currently, some processors combine product from different farm areas, different farmers, and different lots within a particular block of land. The combination of produce that is ultimately placed into a bag creates a trace back problem to the farm. Some processors are also only testing at the pre-harvest stage only. Product that ultimately is harvested and brought into the facility, processed and packaged may or may not be tested. (Most of us realize that it is impossible to test your way into food safety and therefore the question arises why test at after the product is harvested if the results are going to be indeterminate and unpredictable.)
There are other processors that are doing it all. They are testing the product prior to harvesting; holding and testing raw product on a farmer by farmer basis, and a block by block basis on delivery and a final finished product prior to shipment.
I think we have to go back to the initial premise that I started with, which is public safety. Public safety requires that if there is an outbreak that we are able to trace the outbreak to particular product in order to remove that product from the stream of commerce. Part of that process involves an investigator to determine and understand how the contamination occurred. The process should have the ability to identify that the bags were processed on a certain date, identify that the product came from a particular grower, a definable area, block, and lot, and then those blocks and lots can be retested and investigated by the FDA. In addition, the processor could provide to the FDA the information substantiating the fact that the farmer as well as the processor conducted and implemented good agricultural practices including but not limited to the testing of water, soil, and raw product prior to harvesting.
The interesting part of this analysis is not what we think but what a jury thinks in the State of Michigan, Utah, Illinois, etc. What we take for granted here is that everyone understands what farming is all about—an interactive process involving a variety of variables where absolute control is an illusion. Juries don’t quite get that concept. What they basically want to know is what they are consuming is 100% safe and when it’s not safe, they feel obligated to allocate responsibility. So from a jury standpoint when a plaintiff attorney stands up and discusses raw product testing and finished product testing at the plant versus another processor who did not implement a raw product testing program and a finished product testing at the plant, the jury, typically, feels a sense of outrage on behalf of the victim. Outrage related to the fact that a processor made a business decision that may have impacted the life of the victim and his family and perhaps it could have been them.
I understand the concept of implementing a program of pre-harvest testing only. I also understand the sense of outrage that can and does spill over to the farmer. The concept of that retesting the product does not necessarily produce a safer product. However, I don’t think that our citizens, our potential plaintiffs, and our politicians are as understanding as I am.
There are various ways to handle this problem. One way is to create an official standard. Another way is to simply understand what the risks are and to request that a processor take out sufficient insurance to cover the eventual outbreak and to make sure that the farmer, who is providing the product to the processor, is covered under that same insurance policy. The processor has the best chance of obtaining the best rates and the best type of coverage for a product that enters the stream of commerce. As farmers start becoming targets of plaintiff attorneys due to the effectiveness of traceability, the farmers will be pulled into every litigation. As a result, it is unlikely that any of the tests will ultimately protect the farmer from a lawsuit and insurance coverage will ultimately be the only thing that protects the family farm.
This editorial first appeared in Volume 2-2 of L+G’s Food Safety Newsletter, in December 2008.