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Federal and State Regulators Coming for your Tomatoes

If you like fresh tomatoes – not the mummified ones you get in the grocery store – you’d better pay attention. The feds are coming for your farm-fresh produce. And not only tomatoes, but cucumbers, watermelons, corn – you name it. Thanks to “Produce Safety” rules issued under the Food Safety Modernization Act (FSMA), the federal government is rapidly expanding its control over growers and distributors of farm-fresh fruits and vegetables. Worse still, the feds are commandeering state agricultural departments to do their dirty work.

FSMA was signed into law in 2011 by President Obama, spawning a barrage of Food & Drug Administration (FDA) rulemaking that has increased costs for the entire U.S. food supply chain. The overall approach embodied by FSMA is that government bureaucrats know more about food safety than farmers and ranchers. The new law is costing U.S. taxpayers billions to fund new regulatory procedures, passing on these costs to farmers, consumers, and taxpayers in the form of increased fines, fees, and overall government spending. The Produce Safety rule alone, acknowledges the FDA, is going to cost American farms $366 million a year, and that is likely on the low end. American families will pay this tab in the form of higher prices for healthy fruits and vegetables.

The ostensible purpose of FSMA is to provide “uniformity” to state and federal agricultural rules. Small farmers might say the real purpose is to put them out of business, to the benefit of Big Ag. In the end, however, small farmers and ranchers obtained some relief from FSMA’s heavy regulatory burdens. Today, FSMA provides exemptions for what are called “exempt or qualifiedly exempt” producers who gross more than half a million dollars annually and who sell more than half of their food directly to individual consumers and/or to restaurants and retailers within their state or within 275 miles of their farm.

Two bills (HB 665 and SB 2924) taken up this session by the Mississippi Legislature could nullify these federal exemptions – and much worse – by giving the state Department of Agriculture & Commerce enhanced authority to issue rules and regulations above and beyond the federal Produce Safety rule. Apologists for the legislation claim Mississippi has to pass these bills in order to implement the new federal rules. That does not explain, of course, why the department is seeking additional rulemaking authority. Moreover, if the purpose of FSMA is to bring uniformity to state agricultural rules it would make more sense to stick with the federal guidelines – instead of adding our own on top of that.

It has also been said that the purpose of these bills is to prevent the FDA from coming into Mississippi to enforce FSMA. But under the U.S. Constitution, as well as state law, the federal government cannot simply “commandeer” state personnel and resources to enforce federal regulations. The feds also don’t have the manpower to enforce FSMA themselves. Instead, we are going to accept federal funding to enforce this bad law ourselves.

The first bill in question (SB 2924) passed quickly, very quickly, and has already been signed into law by the governor. It is not too late, however, to use the second bill – HB 665 – to protect Mississippi small farmers and ranchers. Thanks to amendments I offered in the Senate Agricultural Committee, HB 665 now conforms with federal law by maintaining the current federal exemptions for exempt or qualifiedly exempt producers. My amendments also deleted language that gave the state Department of Agriculture & Commerce power to literally shut down and bankrupt almost any farm. Already, the federal (and state) rules allow federal and state bureaucrats to inspect and “seize, condemn or destroy any produce that is being grown, kept, exposed for sale, held in possession or under the control of any person on a covered farm.”

It is hard to imagine why the Department of Agriculture would need more power than this to inspect and destroy produce on covered farms. What else do they want? The power to comb through tax records? The power to confiscate farm equipment? The power to arrest farmers and ranchers?

FSMA is already bad enough. If Mississippi is not going to help rollback its onerous regulations and help defend small farmers, we at least shouldn’t be making things worse. If you like your fresh tomatoes – or any kind of locally produced, farm-fresh fruits and vegetables – please ask your lawmaker to support HB 665 as amended.


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