Comments to the ANPR are available online.34 Although some federal agencies submitted comments, interestingly, FDA apparently did not.35 Comments from federal and state agencies, and concerned consumers organizations did not address the issue of whether AMS was within its legislative authority to promulgate such a regulation.36 The pertinent question for many of the respondents was not whether AMS has the legal authority to regulate produce safety in this manner, but whether it should. Primarily, the issue was raised whether a marketing agreement is an appropriate mechanism for produce safety regulation.
The Consumers Union argued that marketing agreements (and orders) “were designed to establish and maintain orderly marketing conditions for regulated commodities, not to ensure the safety of those commodities.”37 The Center for Science in the Public Interest (CSPI) noted that AMS’s proposed marketing agreement may circumvent FDA’s authority to legitimately regulate produce safety. Additionally, the U.S. Environmental Protection Agency (EPA) and the U.S. Department of Commerce (through the National Marine Fisheries Services) wrote of their concerns about environmental degradation as a result of the order.
Both comments noted that in the aftermath of the California agreement, individual buyers and handlers (e.g., chain grocery stores and fast food chains) exceeded the requirements of the agreement. EPA commented “that many of these practices are not scientifically based, and have unintended consequences to the environment.”39
TK: Has this issue been settled or not? It seems there are some who would not like to see USDA play a role in oversight of food safety in marketing orders and promotion agreements, the wishes of the industry and the opinion of USDA lawyers notwithstanding. Perhaps the most important opinion – which so far cannot be pined down – will be the from the FDA.