Perishable Pundit: The words that can't be spoken

April 11 , 2019

By Jim Prevor, CEO and Editor-in-Chief of Produce Business magazine.

This column first appeared on the PerishablePundit.com website.

Who Is Buying Product Not In Compliance With Leafy Greens Metrics?
Where Are The Industry Leaders Stepping Up To Solve This Problem?
Tightening Water Metrics Is Great — But Not Enough.
Eliminating The 1% From Commercial Trade Is A Financial And Moral Obligation

During the most recent Romaine food-safety-related outbreak, we authored a piece for The Wall Street Journal, titled Lettuce Try Not to Panic. The point of the piece was two-fold: To explain that the risk is really infinitesimal, and to point out that the government, by issuing recommendations rather than disclosing the risk, is defining a purpose of government not in line with traditional notions of the liberty of free citizens.

What we were not doing in the article was claiming that we had reached a state of perfection or that, as an industry, we shouldn’t strive to improve the system and thus reduce the risk of a food safety problem even further.

Recently, in evidence that the industry was working to find paths of improvement, The California Leafy Greens Marketing Agreement made an announcement that the organization would be tightening certain metrics related to the use of surface water for overhead irrigation in response to the food safety issues of 2018:

Responding to issues of the past year, the leafy greens industry is continuing to address required water standards, particularly those related to use of surface waters. The LGMA is committed to strengthening its required food safety practices for all certified LGMA members who produce 99% of the leafy greens produced in California.

For the past three months, the leafy greens industries in California and Arizona have been developing new water guidelines. An industry group facilitated by Western Growers has taken the lead in this effort, and there is broad agreement that using untreated surface waters for overhead irrigation during the final weeks of production presents an elevated risk. Changes to the LGMA’s required food safety practices (metrics) to reduce this risk are being developed with input from food safety scientists and several LGMA member companies.

The LGMA will make an announcement with specifics about the new metrics as soon as they are finalized and accepted by the LGMA Advisory Board. We are confident this can happen in the next four to six weeks.

Once accepted, the new metrics will be shared with the industry and they will become part of the mandatory government audits that are part of the LGMA food safety system. The LGMA will also begin an education and outreach effort to ensure all members of the leafy greens community understand how to comply with the new standards.

Taylor Farms announced that it is not waiting for the process to be formalized through the California Leafy Greens Marketing Agreement and that, starting May 1, 2019, it would only source product from growers who mitigate risk by performing on-site treatment of water for organisms of concern before the water is used in overhead irrigation:

During the last year, the Romaine lettuce markets have been shut down two separate times by the federal government following epidemiological links of certain Romaine products to illnesses and deaths caused by E. coli pathogens. The tragic illnesses and persistent negative publicity surrounding these events has eroded confidence in the healthy products the leafy greens industry produces every day and draws attention away from the food safety advancements made by many members of the leafy greens industry.  

Based on results from the FDA traceback work, as well as industry research, open source irrigation water has been identified as a meaningful risk factor for promoting the harborage and transmission of pathogens when not managed properly. More specifically, research has shown that an untreated water source, coupled with overhead irrigation techniques, can prove to be a synergistic combination for the growth and transmission of certain harmful pathogens. Fortunately, this risk can be mitigated through on-site treatment of the water, for organisms of concern, prior to usage. 

Through this letter, Taylor Farms is committing to source product from Leafy Green Growers who take this additional step to treat water coming from and/or distributed through open sources prior to use in overhead irrigation. Starting May 1, 2019, Taylor Farms is committed to only source leafy green products which are grown in conformance with the heightened water standards mentioned above.  

Along with managing irrigation water more stringently, Taylor Farms is committing to engage in continuous research in our farming, manufacturing and transportation processes to develop science-based solutions for identifying and eliminating risk that ultimately impacts the products that we depend on. The success of our industry is dependent on the industry delivering safe and wholesome products. This is a critical next step.

—Mark Borman 
President  
Taylor Farms California

These are both very positive steps for the industry and real signs of leadership. But in reading the LGMA release, we couldn’t help but be drawn to the missing 1%. The release says: The LGMA is committed to strengthening its required food safety practices for all certified LGMA members who produce 99% of the leafy greens produced in California.

Just as we were reading this, we received a note from Eric Schwartz. Now Eric is with Eckert Foods, but back during the Spinach Crisis of 2006 he was President of Dole Fresh Vegetables, and since then we’ve worked with him on many industry issues, including these:

Pundit’s Mailbag — More Questions About Leafy Greens Board

Pundit’s Pulse Of The Industry: Dole Vegetables’ Eric Schwartz

Pundit’s Mailbag — The Deadline Approaches

Pundit’s Mailbag — Dole’s Schwartz Comments On Silent Buyers

Dole Hit With Another Recall

Dole’s Schwartz Sheds More Light On Recent Recall

Why The Secrecy On Inspection Agency Lab Results?

Single Step Award Winner — Eric Schwartz Of Dole Vegetables

Arizona Marketing Agreement One Step Closer To National Leafy Green Standard

Pundit’s Mailbag — PMA’s Opportunity To Learn From Friends And Foes

Pundit’s Mailbag — Lesson From Avocadogate: You Get What You Tolerate

Pundit’s Mailbag — Organic Industry’s ‘Situational’ Standard

Pundit’s Mailbag — How About Subsidy Money For GTIN Conversion?

Pundit’s Mailbag — The Irresponsibility Of Whole Foods’ 'Responsibly Grown' Campaign

Pundit’s Mailbag – A Look Back At Fresh & Easy: Tesco’s Insistence On UK Suppliers Building Facilities In The USA Increased Overhead And Reduced Flexibility... The End Was Easy To Predict Even At The Beginning

Now Eric read the same release we did and focused in on the same question we did:

The problem no one wants to talk about is that some major retailers and big box stores still buy products from leafy greens growers that are in the 1%.

The FDA named-source at the center of the most recent romaine recall (and now alleged by FDA to have been the source of another recall a year earlier) was not a member of LGMA. Yet, the grower was still able to sell leafy greens into retail and terminal markets during a time when romaine was short of supply.

This was a problem on the buy side when we formed the LGMA back in 2006 and unfortunately still continues today. As long as retailers and big box stores continue to have different buying guidelines for an over-supplied market and a short supplied market, the leafy greens industry will continue to bear the brunt of the 1%. 

—Eric Schwartz, CEO
Eckert Foods
Salinas, California

The U.S. Food and Drug Administration (FDA) completed its investigation on February 13, 2019. Prior to completing its investigation, the FDA said this:

On December 13, 2018, Adam Bros. Farming, Inc., in Santa Barbara County, recalled products that may have come into contact with water from the water reservoir where the outbreak strain was found. The firm recalled red leaf lettuce, green leaf lettuce and cauliflower harvested on November 27 through 30, 2018. According to the firm, the lettuce and cauliflower was distributed to wholesalers in the U.S., Mexico, and Canada.

The Adam Bros. recall has prompted a recall by Spokane Produce Inc. of Spokane, WA. The firm recalled sandwiches and other products under the Northwest Cuisine Creations and Fresh&Local labels.

Now we don’t actually know that any Adams Bros. Farming product was contaminated, but — and maybe this is the most important thing for the industry to know — the company is not a member of the California Leafy Greens Marketing Agreement. 

Yet we know that Spokane Produce wound up with the Adams Bros. product. In fact, Adams Bros has said that recalled product was widely distributed:

Cauliflower was distributed to wholesalers in AZ, CA, IL, LA, MD, NC, NJ, NY, OH, PA. Tijuana, Mexico, and Canada; red and green leaf lettuce was distributed to wholesalers in CA, CO, OR, TX, PA, WA, and Canada; red leaf lettuce only was distributed to a wholesaler in MN, and Tijuana, Mexico.

Of course, if all these wholesalers had the product, it had to be sold to retailers and restaurants just as widely dispersed. Indeed, one of the oddities of the Adams Bros. recall is why there weren’t dozens of follow-up recalls by the wholesalers who received the product.

The LGMA was always a second choice. Back in 2007, in a piece titled, "Cutting Through The Agendas: What's a Buyer to Do," we wrote:

Even in California, the initial plan of Western Growers Association was to move from a Marketing Agreement — which always poses the danger that companies won’t join or will withdraw from participation — to a Marketing Order that would be mandatory for all.

Marketing Orders customarily call for the growers to vote to establish and maintain the Marketing Order. Typically, there is some type of “supermajority” provision, whereas a majority of the growers representing a majority of the crop must endorse a plan.

WGA killed that plan because it was certain the plan would be voted down. In other words, even among spinach and leafy greens growers, even in California, there is no consensus for a mandatory food safety solution that we can take to government.

It is obvious that even the 1% of non-compliance is a risk too large for the industry to take.

Improving the metrics is an excellent idea. But it is time for industry leadership to get back to the drawing board. How do we make sure that 100% of the crop entering commercial trade is grown in line with LGMA standards?

In the short term, there is a sense that the urgency for buyers to make sure they were only buying product in line with the LGMA standards has slipped. Perhaps LGMA and its sister Arizona organization, the Arizona Leafy Greens Marketing Agreement, can maintain a list on their websites, just as they do of producer members, of buying organizations that have signed binding agreements to only purchase LGMA-compliant product.

Eric Schwartz makes the mention of variable standards being adopted by buyers in tight markets. There is just no place for variable food safety standards by commercial buyers.

Although the FDA does not disclose the buyers of product unless a recall is involved, the list on this recall seems heavy to wholesalers. LGMA and the Arizona LGMA would be wise to set up an educational outreach to wholesalers — reminding them of the importance of conforming to these standards and educating them on ways to make sure their suppliers are in conformance.

We will even pitch in. There are loads of wholesalers from around the US and Canada who attend The New York Produce Show and Conference, presented by the Eastern Produce Council and Pundit sister publication, PRODUCE BUSINESS. We will donate a booth and staff hotel rooms to support the LGMA and Arizona LGMA in this wholesale outreach.

In an example of the law of unintended consequences, one reason getting compliance is so hard is because advocacy groups for food safety and the courts have changed the standard over the years so that people and companies do not have to be found negligent to be held responsible. The mere introduction of an adulterant into commerce is a crime.

Under a negligence-based system, producers would be able to say, “I followed the Leafy Greens metrics,” and that would exonerate them. Buyers would be able to say, “I only bought from adherents of the Leafy Greens metrics” and that would exonerate them.

Under current law, following even the most rigorous food safety standards doesn’t matter. If you introduce a pathogen into commerce, and it causes injury, you are liable. Generally speaking, retailers are only contingently liable. They pay up only if the producer cannot pay the bill. This is why the retail focus on food safety issues often revolves around the adequacy of liability insurance.

In the UK, however, there is a different legal standard, and UK retailers have to demonstrate they were not negligent themselves. We wrote a piece for The New Atlantis almost ten years ago laying out this problem. The piece was titled, How to Improve Food Safety: Aggrandizing the FDA Only Distracts from Real Solutions, and we focused on the necessity of making retailers responsible for failing to enforce rigorous food safety standards.

It will be very difficult to change such legal standards, so, perhaps industry efforts need to refocus on a Marketing Order as a tool that could actually cover the whole industry.

How much more should the fully compliant industry suffer because of a few bad actors? And how many more people will die?

Fixing this is both a financial and a moral imperative.

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