The rule focuses on vehicle and equipment characteristics and operations, as well as training and recordkeeping. Shippers are given leeway to dictate their own safety protocols and training requirements, which generally follow industry best practices already in place.
John Husk, a partner at the law firm of Seaton & Husk, which represents clients including property brokers and carriers involved in produce and other industries, notes that the FDA and the transportation industry worked together, holding listening sessions and soliciting input from shippers, carriers, rail companies, brokers, and other stakeholders to ensure the rule worked. “The industry has been policing itself,” he says. “The new rule means you need a contract or special instructions so brokers and shippers can comply.”
Foreign Suppliers and FSMA
Produce growers, shippers, packers, and fresh-cut processors outside the United States must all comply with FSMA if they want to sell into the U.S. market. While the legal liability is with the importer, under the Foreign Supplier Verification Program (FSVP) compliance to either the Preventive Control or Produce Safety rule is a must if foreign produce suppliers want their product to cross the border and for retailers to accept it.There is a process under FSVP for reducing the burden when the FDA views a country’s food safety program as comparable to FSMA. Importers must still comply with FSMA regulations, but the recordkeeping burden can be substantially reduced—but only if the imported food will be used as is. For produce undergoing further processing, the modified procedure does not apply and the product must be in full compliance with FSMA.
To date, only Canada, Australia, and New Zealand fall into the preferred category, although the FDA is working with other countries to add them to the list. Since food safety systems vary significantly from one country to another, it can be difficult for a nation to have its program deemed comparable. After FSMA became law in 2011, Canada passed the Safe Food for Canadians Act (SFCA) the following year, which keeps the two nations’ programs operating in parallel, although not identically. Implementation of SFCA will occur in 2018.
Jeff Hall, food safety specialist for the Canadian Produce Marketing Association, says there are a few minor points that differ between the Canadian and U.S. regimes, but “otherwise, if you’re compliant with one, you’re compliant with the other.” Documentation, for example, differs slightly: FSMA requires Canadian growers or processors to be recognized by the Canadian Food Inspec-tion Agency (CFIA) to do business in the United States.
Because the SFCA will not be final until 2018, there is a transition period when the two systems are not quite comparable. “This issue has come up, and CFIA and FDA are in discussions about it,” Hall relates. “They have a great relationship and have been fairly responsive to the industry, so we don’t expect any huge issues.” He notes that the delay in full implementation of FSMA’s Produce Safety rule to 2018 will help alleviate some of the issues caused by the lag.
Kenny Lund, vice president of support operations at the Allen Lund Company, a transportation broker headquartered in La Canada, CA, says many growers seem to think that simply transferring all liability to the transportation company is enough to comply with the rules. The point of the rule, he stresses, is to put the best practices already in place in writing, so everyone knows what to expect. “If you had best practices in place, there’s very little change,” he explains. “You just need more documentation and it’s all at the loading dock.”
