September, 2004
Washington State Food Code Proposal Needs Improvement Says Sustainable Farming Group

BELLINGHAM—The Washington Sustainable Food and Farming Network (the Network), a statewide advocacy organization for sustainable agriculture and family farms in Washington State, is concerned that proposed changes to the state's Food Code may hurt Washington farmers unless changes are made in the proposed wording.

Bowing to pressure from food businesses that operate in multiple states, Washington State's Board of Health has been developing a replacement for the state's current, homegrown Food Code with one that was drafted by the Federal Food and Drug Administration (FDA) and intended for states to adopt. The businesses claim that a Food Code common across state boundaries will help their profitability. The proposed revision is currently open to public comment until Sept. 8, 2004.

The Network sent representatives (including staff and volunteers from the family farming sector and farmers' markets) to many of the stakeholder meetings that were facilitated by the Dept. of Health to craft the wording of this proposal. Despite the Network's efforts to defend the interests of sustainable agriculture and family farms, issues remain in the proposed Food Code that may prove detrimental to Washington farmers. The Network is asking the Board of Health to make changes to and issue clarifications regarding the proposal before lending the proposal its full support.

The issues identified by the Network are:

• The new Food Code must protect the economic viability of farmers from unnecessary and burdensome regulation;
• Farmers should not be required to be licensed by two agencies to sell processed products directly to the consumer;
• Washington State honey producers who are currently licensed by the Washington State Department of Agriculture should not be required to obtain additional licensing as Food Establishments or Food Processors;
• Farmers selling "only non-potentially hazardous, non-ready-to-eat, minimally-cut, unprocessed fruits and vegetables" in packaging need not be required to adhere to costly labeling requirements;
• Farmers need to be free to sell whole-leaf salad mix to stores and restaurants as well as at farmers' markets and roadside stands without regulation or licensing as long as it is not represented as "Ready-to-Eat";
• Equipment used in a licensed facility need not be certified by the National Sanitation Foundation (NSF) if the health authority having jurisdiction deems less expensive non-NSF equipment to be capable of performing its job adequately;
• The definition of "Approved Source" must include any farm that abides by the law so that a farmer may sell food prepared from her or his farm and so that restaurants and other food service establishments may obtain ingredients directly from farms;
• The sale of Raw Milk should not be stigmatized by the use of unnecessarily alarming warning signs posted at the point of sale;
• Whether or not compensation is exchanged for food in a private setting (i.e. not sold to the general public) should be a private determination among the people involved. Requiring licensing in order to be able to exchange compensation for food privately, as proposed, could hurt farmers.

The Washington Sustainable Food and Farming Network encourages all interested parties to submit comments on the proposed Food Code to the Board of Health. Comments may be provided in person and/or in writing at the public hearing on Sept. 8, 2004 at 10:30 am at the Marcus Whitman Hotel & Conference Center, Six West Rose, Walla Walla, Washington. Comments may also be provided before the hearing.

Comments that are mailed, faxed or emailed must be received by September 1, 2004 to be considered at the hearing.

Advance comments can be submitted through the Department of Health's rule revision web site until Sept. 3 at the following website: www3.doh.wa.gov/policyreview/ (When at the web page above, scroll down to where it says "WAC 246-215, etc. Food Service Revisions" and click where it says "Comment")

Send comments via postal mail, email or fax, by Sept.1, to:
Ned Therien
Office of Food Safety and Shellfish Programs
Washington State Department of Health
PO Box 47824, Olympia, WA 98504-7824
fax (360) 236-2257
ned.therien~at~doh.wa.gov

The entire Food Code proposal can be accessed at: www.doh.wa.gov/ehp/sf/FoodRuleMain.htm

MORE:
The Washington Sustainable Food and Farming Network, in a formal comment to the Board of Health, expressed the following concerns:

• The current Food Code in Washington specifically exempts farmers, gardeners, or other persons who sell, deliver, or peddle any fruits, vegetables, berries, eggs, or any farm produce or edibles raised, gathered, produced, or manufactured by such person [excepting dairy products, meat, poultry, eel, fish, mollusk, or shellfish] from regulation under the Food Code. The proposed Food Code eliminates this exemption, thus bringing many farmers under the jurisdiction of the Board of Health for the first time. The Network seeks assurance that the proposed Food Code protects the economic viability of those farmers from unnecessary and burdensome regulation. In the absence of the "Farmer Exemption" in the proposed Food Code, the Network supports the provision in the proposal that exempts from all regulation and licensing those establishments that offer "only non-potentially hazardous, non-ready-to-eat, minimally cut, unprocessed fruits and vegetables", as well as the list of foods that would be exempt from regulation. The proposed list includes "hot tea, or hot apple cider ... served directly into sanitary single-service articles ... dry beans, dry grains, in-shell nuts, tea leaves, or herbs for tea." The Network is urging the Board of Health to consider suggestions from farmers for additional foods to be added to this list.
• While the Network supports the exemption of farms that are licensed by the Washington State Dept. of Agriculture (WSDA) and the USDA from regulation under the proposed Food Code, it has two major concerns regarding this provision:
  1. WSDA currently licenses some farmer-processors as "wholesale to the public". The proposed rule would require farmers who sell processed products to obtain an additional license in order to sell their product directly to the end consumer. Farmers need the option to be able to sell their products whether fresh or processed, direct to the consumer to retain the greatest portion of the food dollar and maintain their economic viability. The Network asserts that the final rule must not require processors to be double-licensed to sell directly to the public.
  2. Washington State honey producers are currently licensed by the Washington State Department of Agriculture under provisions of the State Honey Act and have not been regulated as Food Establishments. For decades, Washington honey producers so licensed have produced safe honey of the highest quality while contributing significantly to the state's economy. In order to be able to support the proposed rule, the Network requires specific, written assurance from the Board of Health that Washington honey producers licensed by WSDA will be exempt in the final rule from regulation as a "Food Establishment". If such written assurance cannot be provided, then the Network cannot support the current proposed rule unless the words "including honey producers licensed by WSDA under RCW 69.28" are inserted in the relevant section.
• The proposal must be clarified so that a farmer selling "only non-potentially hazardous, non-ready-to-eat, minimally cut, unprocessed fruits and vegetables" may package foods to "facilitate food protection during service and receipt of the food by the consumer" (FDA) and not be required to adhere to costly labeling requirements.
• Confirmation is sought that farmers shall be free to sell whole-leaf salad mix to stores and restaurants as well as at farmers' markets and roadside stands without regulation and licensing as long as it is not represented as "Ready-to-Eat". Salad mix is a popular and profitable product that many farms in Washington grow and sell.
• The Network needs the definition of the term "Equipment" to be further specified to include non-mechanical, cold-holding equipment that is capable of keeping fresh or frozen meat and raw shell eggs within the required temperature ranges so that farmers may sell such foods at farmers' markets where mechanical refrigeration is not always feasible. In addition, the Network wants the final rule to specify that equipment used in a licensed facility need not be certified by the National Sanitation Foundation (NSF) if the health authority having jurisdiction deems the non-NSF equipment to be capable of performing its job adequately. NSF certified equipment is usually far more expensive than non-certified equipment.
• The final rule must specify that "Approved Source" include any farm that abides by the law so that a farmer may prepare food from her or his farm and so that restaurants and other food service establishments may obtain ingredients directly from farms.
• The sale of Raw Milk is stigmatized in the proposed Food Code with the requirement to have a warning sign posted at the point of sale identifying Raw Milk as possibly "contaminated with dangerous bacteria capable of causing severe illness". The Network urges the adoption of a more generic warning, taken from the FDA model Food Code, for all un-pasteurized foods that does not single out Raw Milk.
• The Network strongly urges the Board of Health to delete wording that would make it illegal for compensation to be given for food served or provided at a "private event" without a license from a health authority. This would negatively impact some forms of farm families, organizations and clubs that are membership only and where foods are provided to the end consumer and are not sold to the general public (such as farms operating using the "community supported agriculture" model). Whether or not compensation is exchanged for food at a private event should be a private determination among the people involved.

CONTACT:
Chrys Ostrander, Chair
Developing New Markets Committee
Washington Sustainable Food & Farming Network
Voice: 509-725-0610; chrys~at~thefutureisorganic.net
33495 Mill Canyon Rd., Davenport, WA 99122

Bonnie Rice, Director
Washington Sustainable Food & Farming Network
P.O. Box 6054, Bellingham, WA 98227-6054
Voice: (360) 527-9426; info~at~wsffn.org