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READY-TO-EAT OR NOT?: EXAMINING THE IMPACT

OF LEAFY GREENS MARKETING AGREEMENTS

HEARING

BEFORE THE

SUBCOMMITTEE ON DOMESTIC POLICY

OF THE

COMMITTEE ON OVERSIGHT

AND GOVERNMENT REFORM

HOUSE OF REPRESENTATIVES

ONE HUNDRED ELEVENTH CONGRESS

FIRST SESSION

JULY 29, 2009

Serial No. 111–126

Printed for the use of the Committee on Oversight and Government Reform

(

Available via the World Wide Web: http://www.fdsys.gov

http://www.oversight.house.gov

(II)

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

EDOLPHUS TOWNS, New York, Chairman

PAUL E. KANJORSKI, Pennsylvania

CAROLYN B. MALONEY, New York

ELIJAH E. CUMMINGS, Maryland

DENNIS J. KUCINICH, Ohio

JOHN F. TIERNEY, Massachusetts

WM. LACY CLAY, Missouri

DIANE E. WATSON, California

STEPHEN F. LYNCH, Massachusetts

JIM COOPER, Tennessee

GERRY E. CONNOLLY, Virginia

MIKE QUIGLEY, Illinois

MARCY KAPTUR, Ohio

ELEANOR HOLMES NORTON, District of

Columbia

PATRICK J. KENNEDY, Rhode Island

DANNY K. DAVIS, Illinois

CHRIS VAN HOLLEN, Maryland

HENRY CUELLAR, Texas

PAUL W. HODES, New Hampshire

CHRISTOPHER S. MURPHY, Connecticut

PETER WELCH, Vermont

BILL FOSTER, Illinois

JACKIE SPEIER, California

STEVE DRIEHAUS, Ohio

——— ———

DARRELL E. ISSA, California

DAN BURTON, Indiana

JOHN M. MCHUGH, New York

JOHN L. MICA, Florida

MARK E. SOUDER, Indiana

JOHN J. DUNCAN, JR., Tennessee

MICHAEL R. TURNER, Ohio

LYNN A. WESTMORELAND, Georgia

PATRICK T. MCHENRY, North Carolina

BRIAN P. BILBRAY, California

JIM JORDAN, Ohio

JEFF FLAKE, Arizona

JEFF FORTENBERRY, Nebraska

JASON CHAFFETZ, Utah

AARON SCHOCK, Illinois

——— ———

RON STROMAN, Staff Director

MICHAEL MCCARTHY, Deputy Staff Director

CARLA HULTBERG, Chief Clerk

LARRY BRADY, Minority Staff Director

SUBCOMMITTEE ON DOMESTIC POLICY

DENNIS J. KUCINICH, Ohio, Chairman

ELIJAH E. CUMMINGS, Maryland

JOHN F. TIERNEY, Massachusetts

DIANE E. WATSON, California

JIM COOPER, Tennessee

PATRICK J. KENNEDY, Rhode Island

PETER WELCH, Vermont

BILL FOSTER, Illinois

MARCY KAPTUR, Ohio

JIM JORDAN, Ohio

MARK E. SOUDER, Indiana

DAN BURTON, Indiana

MICHAEL R. TURNER, Ohio

JEFF FORTENBERRY, Nebraska

AARON SCHOCK, Illinois

JARON R. BOURKE, Staff Director

(III)

C O N T E N T S

Page

Hearing held on July 29, 2009 ............................................................................... 1

Statement of:

Cobb, Kelly, survivor of E. Coli poisoning; Scott Horsfall, chief executive

officer, California Leafy Greens Marketing Board; Dale Coke, farmer

and member, Community Alliance with Family Farmers; and Caroline

Smith DeWaal, director of food science, Center for Science in the Public

Interest .......................................................................................................... 51

Cobb, Kelly ................................................................................................. 51

Coke, Dale .................................................................................................. 63

DeWaal, Caroline Smith ........................................................................... 70

Horsfall, Scott ............................................................................................ 57

Taylor, Michael R., Senior Advisor to the Commissioner of Food and

Drugs, U.S. Food and Drug Administration; and Rayne Pegg, Administrator, Agriculture Marketing Service, U.S. Department of Agriculture . 8

Pegg, Rayne ............................................................................................... 28

Taylor, Michael R. ..................................................................................... 8

Letters, statements, etc., submitted for the record by:

Cobb, Kelly, survivor of E. Coli poisoning, prepared statement of ............... 53

Coke, Dale, farmer and member, Community Alliance with Family Farmers, prepared statement of ........................................................................... 65

DeWaal, Caroline Smith, director of food science, Center for Science

in the Public Interest, prepared statement of ............................................ 72

Horsfall, Scott, chief executive officer, California Leafy Greens Marketing

Board, prepared statement of ...................................................................... 59

Kucinich, Hon. Dennis J., a Representative in Congress from the State

of Ohio, prepared statement of .................................................................... 4

Pegg, Rayne, Administrator, Agriculture Marketing Service, U.S. Department of Agriculture, prepared statement of ............................................... 30

Taylor, Michael R., Senior Advisor to the Commissioner of Food and

Drugs, U.S. Food and Drug Administration, prepared statement of ........ 11

(1)

READY-TO-EAT OR NOT?: EXAMINING THE IMPACT OF LEAFY GREENS MARKETING

AGREEMENTS

WEDNESDAY, JULY 29, 2009

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON DOMESTIC POLICY,

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM,

Washington, DC.

The subcommittee met, pursuant to notice, at 2 p.m., in room

2154, Rayburn House Office Building, the Honorable Dennis J.

Kucinich (chairman of the subcommittee) presiding.

Present: Representatives Kucinich, Jordan, Cummings, and Watson.

Staff present: Jaron R. Bourke, staff director; Jean Gosa, Clerk;

Charisma Williams, Staff Assistant; Leneal Scott, Information Systems Manager, full committee; Adam Hodge, Deputy Press Secretary, full committee; Dan Blankenburg, minority director of outreach and senior advisor; Adam Fromm, minority chief clerk &

Member Liaison; Ashley Callen, minority Counsel; and Molly Boyl,

minority Professional Staff Member.

Mr. KUCINICH. The committee will come to order. I am Congressman Dennis Kucinich, Chair of the Domestic Policy Subcommittee

of Oversight and Government Reform. I am joined today by the

ranking member of the subcommittee, Mr. Jordan of Ohio.

Today’s hearing will examine the safety of ready to eat produce

and the successes and challenges posed by the California Leafy

Greens Handler Marketing Agreement. For the sake of this hearing

we are going to use the acronym CALGMA. When you hear

CALGMA, it stands for California Leafy Greens Handler Marketing

Agreement. We are going to also be talking about the proposed nationalization of that agreement.

The hearing will focus on bagged or value-added leafy greens

marketed as ready to eat. Consumers are quite familiar with those

products. We are going to look at the role of private industry and

government in regulating these products and the economic, environmental, and food safety impacts of that regulation.

Without objection, the Chair and the ranking minority member

will have 5 minutes to make opening statements, followed by opening statements of other Members not to exceed 3 minutes by any

Member who seeks recognition.

Without objection, Members and witnesses have five legislative

days to submit a written statement or extraneous materials for the

record.

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Without objection, the chairman and ranking member will each

have 10 minutes for questions in the first round, after which we

will proceed under the 5-minute rule.

Pre-cut packaged leafy greens marketed as ready to eat have become increasingly popular, capturing 70 percent of the leafy greens

market. Americans appreciate the convenience of this partially

processed product and are eating more fresh produce as a result.

That is a good and important development that will likely help to

improve the health of Americans.

Yet as the popularity of bagged lettuce and spinach has increased, so have rare but serious food-borne illnesses associated

with it. Outbreaks of E. coli 0157 and other pathogens have occurred in relation to pre-cut packaged leafy greens at least once a

year practically every year since 2003.

Regulation to prevent these outbreaks rest in the hands of the

industry. The California Leafy Greens Handler Marketing Agreement, CALGMA, was implemented to stave off regulatory action by

the State of California. CALGMA ensures adherence to a specified

set of good agricultural practices designed primarily by the Food

and Drug Administration to improve the safety of leafy greens.

In spite of its name, CALGMA is having an impact on farmers

in all parts of the Nation due to the requirement of compliance

with CALGMA imposed by national processing and retailing outlets

that buy and market their produce.

The USDA is currently proposing the creation of a national marketing agreement along the lines of CALGMA.

There is much good in the CALGMA initiative. CALGMA embodies private industry’s positive efforts to safeguard the American

food supply. Handlers responsible for growers’ compliance with food

safety metrics pay for auditors trained by the USDA and hired by

the CALGMA Board to carry out surprise and scheduled inspections of standards adopted voluntarily by signatory farmers.

CALGMA, however, has some blind spots as well. It condones a

processing activity favored by the ready to eat processing industry

known as coring, coring lettuce in the field. It only suggests minimal guidelines for sanitary treatment of harvest equipment used

for coring in spite of recent scientific research identifying the potential for transferring pathogens deep into the cored lettuce where

the subsequent washing process would be unable to reach.

CALGMA is silent on the use of certain packaging of ready to eat

produce known as modified atmosphere packaging, the bags of

ready to eat greens.

CALGMA does not require an enforceable standard of cold chain

of distribution. It does not impose tough requirements on packagers

and distributors relating to the ‘‘best consumed by’’ date that is

stamped on the ready to eat packaging. People have seen those.

They don’t have any tough requirements on those packagers and

distributors who put that stamp on there.

Scientists tell us that if bagged produce labeled as ready to eat

is not constantly refrigerated through the distribution chain, it

quickly becomes a perfect habitat for bacterial growth. Harmful

bacteria such as E. coli 0157 multiply unseen to and undetectable

by the eye of the consumer. Legions of pathogens can thereby invade the unsuspecting consumers’ intestinal tract, overwhelming

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his or her immune system and causing severe and painful complications or, in some cases, death. Everyone who has experienced

severe food poisoning knows what is at stake.

While it is largely silent on key questions applying to upstream

processing and distribution of ready to eat produce, CALGMA has

a lot to say about farming practices and land stewardship. Small

and organic farmers in particular have expressed concern about the

costs and the scientific justification for some of CALGMA’s requirements. Some of CALGMA’s metrics seem to be in direct conflict

with environmental protection and widely accepted agricultural

practices. In some cases, streams have been contaminated, wildlife

refuges destroyed, and biodiversity threatened by farmers’ efforts

to remain in compliance with CALGMA.

Today we hope to address why CALGMA’s regulatory framework

has focused solely on farming practices to the exclusion of the rest

of the supply chain. It seems the farmers have taken the brunt of

the burden of minimizing contamination when it may make more

scientific sense to focus attention on the processing, packaging, and

distribution of ready to eat produce.

Consumers have a right to expect that the food they eat is safe.

It is in the public health interest that Americans consume greater

amounts of raw vegetables. But whether or not nationalizing

CALGMA as the USDA proposed is the best way to achieve those

goals is a question of this hearing.

I look forward to hearing from all of our witnesses today on this

important issue.

At this time I recognize the honorable Congressman Jordan, the

ranking member of the committee, from the State of Ohio.

[The prepared statement of Hon. Dennis J. Kucinich follows:]

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Mr. JORDAN. Thank you, Chairman. I want to thank you for holding this hearing to examine the impact of the leafy greens marketing agreements.

Most importantly, we need to have a food supply that is safe.

Americans should be able to feel confident that the produce they

buy at the grocery store or that is served to them at restaurants

will not make them sick.

Leafy greens marketing agreements such as CALGMA may be an

effective way to ensure safer produce. However, additional guidelines and regulations may be overly burdensome to some farmers,

especially small or family owned and run farms. I look forward to

hearing from our witnesses about their experiences with the marketing agreements.

The FDA and USDA also play key roles in food safety and agricultural marketing. I am interested to hear how these roles may

change if a leafy greens marketing agreement is made national.

Additionally, I hope that our witnesses can discuss the implications of H.R. 2749, the Food Safety Enhancement Act of 2009,

which was scheduled to be voted on yesterday and may in fact be

voted on later today. I look forward to hearing your thoughts on

that legislation as well.

I also look forward to examining the pros and cons of making national the CALGMA agreement.

I thank our witnesses for taking the time to testify here in front

of the committee today. With that, I yield back, Mr. Chairman.

Mr. KUCINICH. I thank the gentleman. Does the gentlelady from

California have an opening statement?

Ms. WATSON. I do, Mr. Chairman. I want to thank you so much

for holding today’s hearing to examine the leafy greens market; the

role of private industry and Government in regulating these products; and the economic, environmental, and food safety impacts of

the California Leafy Greens Handlers Marketing Agreement. The

hearing is happening at a very opportune time.

Since 2003, pre-cut bagged lettuce has developed into the second

fastest growth industry in U.S. grocery sales. I am from California.

We believe in salads, making it critically important that adequate

precautions are taken and analyses conducted to ensure that this

increasingly popular food is not just nutritious but safe.

We have taken steps, Mr. Chairman, in the State of California

to regulate the sale of not only the leafy greens packages but those

in the bins as well.

Some 981⁄2 percent of the E. coli outbreaks reported in leafy

greens have been associated with bagged and pre-cut greens. The

infamous 2006 spinach outbreak resulted in over 200 hospitalizations, nearly $400 million in lost product, and three deaths confirmed by the FDA.

In response to this and other similar instances, industry leaders

developed the California Leafy Greens Handlers Marketing Agreement to allow growers to join a voluntary regulatory framework

which now encompasses 99 percent of California’s leafy greens

business and is being considered for official nationalization. I

chaired those committee meetings, Mr. Chairman, when I was

Chairperson of Health and Human Services.

7

The CALGMA includes a food safety inspection program conducted by the USDA and the enforcement of metrics or regulations

developed by scientists, governmental officials, growers, processors,

and businesses to reduce microbial contamination of leafy greens in

the field-to-fork supply chain.

While I am pleased that the farming industry has taken the initiative to create this comprehensive framework for food safety, I believe it is important to scrutinize its effectiveness and its impact

on the environment. Some have argued that the rules placed on

farmers by CALGMA conflict with the movement toward organic

and biologically diverse farming methods and could be actually

harming the environment. Furthermore, it may prove to be a

counterintuitive to create such regulations before there is conclusive scientific knowledge about how E. coli makes its way into the

leafy greens supply.

I would like to thank you, Mr. Chairman, for allowing me to

make this presentation. I am sorry that I cannot stay. They just

called an emergency meeting of the Progressive Caucus to discuss

the health care reform bill at 2:30. I just wanted you to know that.

But I have staff here and I will be hearing from them as to the

witnesses and their testimony. So thank you so much. I yield back.

Mr. KUCINICH. I thank the gentlelady. I am sure she will convey

my sentiments in that meeting of the Progressive Caucus. You can

let them know that I am given the responsibility of chairing this

hearing. Thank you for being here with that opening statement.

If there are no additional opening statements, the subcommittee

will now receive testimony from the witnesses before us today. I

want to start by introducing our first panel.

Mr. Michael R. Taylor is the Senior Advisor to the Commissioner

of Food and Drugs at the Food and Drug Administration. Mr. Taylor, welcome. Mr. Taylor previously served as Deputy Commissioner for Policy and is a member of the National Academy of

Science’s Committee on Environmental Decision-Making Under

Uncertainty. He has held numerous positions in the field of food

safety and research, among them Administrator of the Food Safety

and Inspection Services at the U.S. Department of Agriculture and

Vice President for Public Policy at Monsanto Corp. He was also a

practicing attorney in the field at the law firm of King & Spalding.

Ms. Rayne Pegg is the Administrator of the Agriculture Marketing Service, AMS, the marketing and regulatory arm of the U.S.

Department of Agriculture. Welcome, Ms. Pegg. Prior to being appointed Administrator at AMS, Ms. Pegg was Deputy Secretary of

Legislation and Policy for the California Department of Food and

Agriculture. She has also served as director of International Trade

and Plant Health for the California Farm Bureau Federation’s National Affairs and Research Division and as the director of Governmental Relations to the Agricultural Council of California.

Thank you for appearing before our subcommittee today. It is the

policy of the Committee on Oversight and Government Reform to

swear in all witnesses before they testify. I would ask that you rise

and please raise your right hands.

[Witnesses sworn.]

Mr. KUCINICH. Thank you. Let the record reflect that the witnesses answered in the affirmative.

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I ask that each of the witnesses now give a brief summary of

their testimony and to keep this summary under 5 minutes in duration. I want you to know that your entire statement and anything else you want to append to it will be included in the hearing

record.

Mr. Taylor, you will be our first witness. You may proceed. You

have 5 minutes.

STATEMENTS OF MICHAEL R. TAYLOR, SENIOR ADVISOR TO

THE COMMISSIONER OF FOOD AND DRUGS, U.S. FOOD AND

DRUG ADMINISTRATION; AND RAYNE PEGG, ADMINISTRATOR, AGRICULTURE MARKETING SERVICE, U.S. DEPARTMENT OF AGRICULTURE

STATEMENT OF MICHAEL R. TAYLOR

Mr. TAYLOR. Thank you, Chairman Kucinich and Mr. Jordan. I

am Michael Taylor, Senior Advisor to the Commissioner at the

Food and Drug Administration which, as you know, is part of the

Department of Health and Human Services. I am pleased to be

with you today to discuss issues related to the safety of fresh

produce.

As you know, FDA is the Federal agency that is responsible for

regulating most of the food supply except for meat, poultry, and

processed egg products which are overseen by our partners at the

U.S. Department of Agriculture. FDA is committed to ensuring that

the U.S. food supply continues to be among the safest in the world.

President Obama has made it a personal commitment to improving food safety. On July 7th of this year, the multi-agency Food

Safety Working Group that the President established issued its key

findings on how to upgrade the food safety system for the 21st century. The working group recommends a new public health-focused

approach to food safety based on three core principles: prioritizing

prevention, strengthening surveillance and enforcement, and improving response and recovery. FDA has been an integral part of

the working group’s continuing efforts to establish these principles.

Fresh produce, the topic of today’s hearing, presents special safety challenges, as the chairman outlined. The number of illnesses

associated with fresh produce is a continuing concern for FDA.

The increased consumption of produce in its fresh or raw form,

including ready to eat bagged products, reflects growing consumer

interest in healthy eating, as you indicated, which is of course a desirable trend from a public health standpoint. But these new consumption patterns and products challenge our food safety efforts.

Fresh produce has the potential to be a source of food-borne illness

because it is consumed raw with only minimal processing and generally without interventions that would eliminate any pathogens

that may be present.

Because most produce is grown in an outdoor environment, it is

susceptible to contamination from pathogens present in the soil, in

manure used as fertilizer, from the presence of animals in or near

fields or packing areas, or in agricultural water or water used for

washing or cooling. Produce may also be vulnerable to contamination due to inadequate worker health and hygiene protections, enVerDate 11-MAY-2000 10:49 May 23, 2011 Jkt 000000 PO 00000 Frm 00012 Fmt 6633 Sfmt 6633 C:\KATIES\DOCS\64914.TXT KATIE PsN: KATIE
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vironmental conditions, inadequate production safeguards, or inadequate sanitation of equipment and facilities.

Fresh produce is produced on tens of thousands of farms and contamination at any one step in the growing, packing, and processing

chain can be amplified throughout the subsequent steps. But we

also know that the possibility of harmful contamination can be

minimized by understanding these potential entry points for pathogens and by implementing preventative measures wherever possible throughout the system.

Thus, in keeping with the Obama administration’s prevention

oriented food safety strategy, FDA intends to improve safety of

fresh produce by establishing enforceable standards for the implementation of science-based preventative controls throughout the

chain of production, processing, and distribution. These regulations

will capitalize on what we and the produce industry have learned

over the past decade since we published our good agricultural practices guidance in 1998. They will tap the best science to develop appropriate criteria or metrics for ensuring the effectiveness of preventative controls in particular production and processing settings.

In the short term, FDA will issue commodity-specific guidance

for industry on the measures that they can implement now to prevent or minimize microbial hazards of fresh produce. FDA will soon

publish draft guidance for improving the safety of leafy greens,

melons, and tomatoes, three specific commodities that have been

associated with food-borne illness outbreaks. The guidance describe

preventative controls that industry can implement to reduce the

risk of microbial contamination in the growing, harvesting, transporting, and distribution of these commodities.

It is not enough, of course, to issue regulations and guidance. We

must also ensure that the preventative measures they call for are

widely and effectively implemented. To that end, FDA will work

with its Federal and State partners to plan and implement an inspection and enforcement program aimed at ensuring high rates of

compliance with the produce safety regulations. FDA recognizes the

importance of leveraging the expertise and resources of other Federal, State, and local agencies to be sure that the industry understands the new requirements and to help them achieve greater

compliance.

One way we can leverage resources is to work with the Agricultural Marketing Service as they consider and implement marketing

agreements and orders. Incorporating FDA standards into voluntary marketing agreements and then conducting audits to ensure compliance by those who subscribe to such agreements thus

contributes to the goal we all share, which is widespread compliance with modern preventative control measures. We believe that

AMS, by incorporating FDA’s produce safety standards in marketing agreements or orders, can help ensure high rates of compliance

with FDA’s standards.

In addition to highlighting measures that the Executive branch

can implement to enhance food safety, the White House Food Safety Working Group also noted the need for Congress to modernize

the food safety statutes. Legislative authorities for FDA that would

enhance the safety of products include the enhanced ability to require science-based preventative controls, the enhanced ability to

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establish and enforce performance standards to measure the implementation of proper food safety procedures, access to basic food

safety records, a new inspection mandate, and other tools to foster

compliance and other provisions.

The Food Safety Enhancement Act, H.R. 2749, being considered

by the House today addresses these needs. The Obama administration strongly supports its passage.

I thank you again for the chance to be here, Mr. Chairman. I

look forward to answering your questions.

[The prepared statement of Mr. Taylor follows:]

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Mr. KUCINICH. Thank you very much, Mr. Taylor. Ms. Pegg, you

may proceed. Thank you.

STATEMENT OF RAYNE PEGG

Ms. PEGG. Hello, Mr. Chairman and members of the subcommittee. Good afternoon and thank you for the invitation to appear here

before you today. I appreciate the opportunity to share with you a

brief overview of our activities regarding marketing orders and

agreements for fruits and vegetables.

As Mr. Taylor stated, FDA is the Federal agency responsible for

food safety of fruits and vegetables. At USDA, the Food Safety and

Inspection Service holds similar responsibility for meat, poultry,

and egg products.

The mission of AMS is to facilitate the marketing of agricultural

products. AMS is not a food safety agency. We are an agency with

a long history of working with producers and processors. Our marketing programs involve the inspection of product quality and the

verification of production processes.

Under the Agricultural Marketing Agreement Act of 1937, marketing orders and agreements assist farmers and handlers by allowing them to collectively work to solve marketing problems.

These programs are industry-initiated and subject to public review.

There is a seven step process in initiating a marketing agreement. The industry petitions the USDA, which recently occurred on

the national leafy greens marketing agreement. USDA holds public

meetings, which we will be having on the national leafy greens

marketing agreement in September and October. We review all

comments and either terminate the proceedings or publish a proposed rule.

In the past we have terminated proceedings of a potential marketing agreement or order. USDA publishes a final agreement and

appoints a committee. The committee develops best practices.

Those best practices are published for public comment and then

USDA publishes final metrics or best practices.

Marketing agreements only apply to handlers who voluntarily

sign an agreement. Fees are collected from handlers to cover local

costs of administering these programs.

The act provides authority to regulate the quality of commodities

through Federal agreements. USDA considers harmful pathogens

and toxins to be a characteristic of lower quality products. Federal

marketing orders and agreements include minimum quality grade

requirements which can be identified by the presence of mold, insect infestation, foreign material, or other contaminants.

The marketing order for California prunes has had inspection

and fumigation requirements relative to live insect infestations

since 1961. Since 1977, California raisins have required the absence of dirt, insects, and mold. Beginning in 2005, pistachio handlers were required to test all nuts destined for human consumption for Aflatoxin, which, if present, would lower the quality and

market value of pistachios.

On June 8th, AMS received an industry proposal for a national

marketing agreement for lettuce, spinach, and other leafy greens.

The purpose of the proposed agreement is to enhance the quality

and increase the marketability of fresh leafy greens vegetable prodVerDate 11-MAY-2000 10:49 May 23, 2011 Jkt 000000 PO 00000 Frm 00032 Fmt 6633 Sfmt 6633 C:\KATIES\DOCS\64914.TXT KATIE PsN: KATIE
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ucts through the application of good agricultural and handling

practices. Requirements implemented under the proposed program

would be science-based, conform to FDA guidance to minimize food

safety risks, and be subject to USDA oversight.

The program would only be binding on signatory handlers. The

program would require signatories to verify that any product handled comes from producers or handlers using verified good agricultural and handling practices. The program would authorize unannounced audits and apply to imports. Any product deemed an immediate food safety risk concern by USDA inspection would be reported to FDA.

We are aware that there are concerns from various groups on the

proposed marketing agreement. We welcome comments from those

and other interested parties and will carefully consider them.

To conclude, Mr. Chairman, I would like to reiterate that the

Federal food safety policies for fruits and vegetables fall under the

jurisdiction of FDA. However, AMS does have significant experience in the design and delivery of marketing programs, including

marketing orders and agreements. The process for potentially establishing a marketing order or agreement is an open and transparent process in which AMS carefully considers all viewpoints.

I am happy to respond to any questions.

[The prepared statement of Ms. Pegg follows:]

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Mr. KUCINICH. I thank the gentlelady.

We will now proceed with 10 minutes of questions beginning

with myself. Then I will turn it over to Mr. Jordan. I would like

to start with Mr. Taylor.

Mr. Taylor, ready to eat is a marketing slogan assuring that the

salad in the package is safe for consumption without requiring further washing or cutting by the consumer. The California Leafy

Greens Handlers Marketing Agreement, CALGMA, is a voluntary

industry-sponsored means of ensuring the quality and safety of

processed leafy greens, including those to be marketed as ready to

eat. It was developed to preempt legislative regulatory action from

the California State Assembly.

Has CALGMA made pre-cut salads safer than they were before?

If yes, what is the basis for that opinion?

Mr. TAYLOR. Mr. Chairman, the producer practices embodied in

that agreement, if implemented, make a contribution to making the

food safer. I think we all understand that the safety of the product

ultimately depends on what happens not only at that point on the

production end but through processing and the way the product is

handled throughout.

Mr. KUCINICH. When you say contribution, what do you mean?

What is the science behind that?

Mr. TAYLOR. The safety of these products really depends fundamentally on prevention of contamination in the first place. For

a raw, fresh product, we don’t have processing steps that decisively

kill pathogens. So prevention throughout the system is the key to

safety. The point is that the on farm practices embodied in the

agreement make a contribution.

Mr. KUCINICH. But isn’t it true that since CALGMA went into effect there have still been food-borne illnesses traced to the bagged

leafy lettuce produce?

Mr. TAYLOR. Absolutely.

Mr. KUCINICH. Do you remember some of them. The 2008 romaine lettuce outbreak, do you remember that?

Mr. TAYLOR. I was not in the Government then but I am aware

of these outbreaks.

Mr. KUCINICH. Are you aware of iceberg lettuce outbreak also in

that year?

Mr. TAYLOR. Yes, I think.

Mr. KUCINICH. Isn’t it true that nearly every case since 1999 of

outbreaks of food-borne pathogens that were traced to leafy greens

involved pre-cut packaged leafy greens and not whole leafy greens,

Mr. Taylor?

Mr. TAYLOR. Improving the safety of these products is a work in

progress, Mr. Chairman. Let me just mention another thing——

Mr. KUCINICH. No, wait. You didn’t answer my question, though.

One of the things about being in front of this committee, it is a lot

easier if you answer the question. You didn’t answer the question.

Please answer the question.

Mr. TAYLOR. If the question is whether the marketing agreement

has solved the problem of fresh produce safety, no. The answer is

no, of course it hasn’t.

Mr. KUCINICH. I asked you a question, though. You didn’t answer. I am going to repeat it just to make sure that you heard it.

41

I asked you, isn’t it true that in nearly every case since 1999, outbreaks of food-borne pathogens that were traced to leafy greens involved pre-cut packaged leafy greens and not whole leafy greens?

Yes or no.

Mr. TAYLOR. Yes.

Mr. KUCINICH. Thank you. Now, Mr. Taylor, doesn’t that suggest

that the processing of leafy greens is a significant factor in causing

outbreaks of food-borne pathogens?

Mr. TAYLOR. There are features of that process that do create an

environment for pathogen growth. You are absolutely right.

Mr. KUCINICH. Is that a yes or a no?

Mr. TAYLOR. Yes.

Mr. KUCINICH. OK. According to the CEO of CALGMA, the FDA

reviewed the good agricultural practices and metrics imposed by

CALGMA. The USDA insists that its marketing agreement program is consistent with FDA guidelines and regulations.

One thing we have noticed in our review of CALGMA is that a

lot of requirements are imposed on farmers while comparatively

less burdensome guidance is suggested to the processors who buy

the greens from the farmers and turn them into pre-cut packaged

salads for marketing to the public. Even when I look at your testimony, you are still pretty heavy on the farmers’ side. For instance,

CALGMA prohibits farmers from planting within 400 feet of a

hedge row on the questionable basis that wildlife poses a significant risk of contamination, but CALGMA allows the processing activity of coring lettuce in the field, an activity that the FDA acknowledges has the potential for contamination, with only minimal

guidance for the washing and storing of knives used to core lettuce.

It seems to be a double standard, Mr. Taylor.

Is CALGMA’s imposition of detailed requirements on farmers but

only suggested guidelines on handlers and distributors justified by

the science on how to make pre-cut salads safer?

Mr. TAYLOR. The science says we need enforceable preventative

measures throughout the system from farm through distribution.

That is why the Food and Drug Administration is going to issue

regulations that would do exactly that.

Mr. KUCINICH. The science says that but what about CALGMA’s

requirements on farmers as opposed to guidance on handlers and

distributors? What you are saying, then, is there is a gap. Are you

saying that?

Mr. TAYLOR. There is a lot of work to do to improve the safety

of produce. Absolutely, Mr. Chairman.

Mr. KUCINICH. In fact, doesn’t the FDA’s 2008 guidance for the

industry to minimize microbial food safety hazards for fresh cut

foods and vegetables incorporate specific standards for processing,

packaging, and transporting leafy greens that CALGMA does not?

Isn’t that true?

Mr. TAYLOR. Yes.

Mr. KUCINICH. OK, we are making progress.

Ms. Pegg, I can’t tell you how many times farmers, especially

small farmers, have told me that the USDA represents everybody

but the farmers. Let us hope the new administration succeeds in

changing that impression.

42

In the next panel we are going to hear from a farmer who has

a lot of criticism for CALGMA. We are going to hear from a survivor of E. coli poisoning related to pre-cut lettuce that she ate in

2008.

As you know, USDA is actively promoting the nationalization of

CALGMA. What is the USDA’s position on CALGMA’s apparent

double standard in that it prescribes specific if not always scientifically supportable requirements on farmers while it condones questionable processing protocols that benefit processing companies

such as coring lettuce in the field?

Ms. PEGG. We do not have a position on the current national

leafy greens marketing proposal. That is before the public. It is at

the very beginning of the process. The hearings will begin in September and October.

Mr. KUCINICH. What do you think?

Ms. PEGG. What do I think?

Mr. KUCINICH. What do you think?

Ms. PEGG. I think at the end of the day the program needs to

work for small producers. It needs to work for different cultural

practices and regional differences. I think at the end of the day

that is the only way you are going to have the best national program.

Mr. KUCINICH. At the end of the day do you think the processing

companies ought to have protocols that are protective of the consumers?

Ms. PEGG. Processors, yes, should. Everyone has to play a part

in food safety in the chain.

Mr. KUCINICH. Including processors? Not just the farmers but

processors as well?

Ms. PEGG. Yes, of course.

Mr. KUCINICH. Ms. Pegg, if CALGMA becomes nationalized,

there will likely be increased costs on growers, farmers, as they

take mitigation measures to be in compliance with the CALGMA

requirements. These costs will be both financial as well as environmental. Examples include the costs of turning areas of land that

might have been previously wild into empty lots and the associated

land erosion, runoff, and stream contamination that follow. With

this in mind, do you believe that the USDA should consider environmental impacts when promoting marketing agreements and regulating food production?

Ms. PEGG. Yes. We must consider environmental impacts. We

must make sure that it is compliant with State and Federal laws.

I think the other point you bring up is that right now farmers

are facing, and I just got an email last night from a farmer I know

in California, buyers who are requiring good agricultural practices.

So even without the marketing agreement you are seeing buyers

demanding good agricultural practices of farmers.

Mr. KUCINICH. Let us talk about a specific issue that would matter to the processors as opposed to the farmers. Isn’t it true that

the ‘‘best consumed by’’ expiration date that is stamped is now 15

to 17 days after the produce leaves the processing plant while only

7 years ago the ‘‘best consumed by’’ date for fresh cut produce was

more like 5 to 10 days?

43

Ms. PEGG. I actually have no knowledge of the ‘‘best consumed

by’’ date. I think that may be an FDA issue.

Mr. KUCINICH. OK, let us go to Mr. Taylor. She deferred to you.

Ms. PEGG. Oh, sorry.

Mr. KUCINICH. Did you get the question?

Mr. TAYLOR. We are partners here, Mr. Chairman.

Mr. KUCINICH. I see that partnership. Now I want to find out

how good of a partner you are. Can you answer the question?

Mr. TAYLOR. Those ‘‘best consumed by’’ dates are really a company measure. Those aren’t an FDA requirement. They address

product quality in principle.

Mr. KUCINICH. OK, they are company measures. But isn’t it true

that the ‘‘best consumed by’’ date that is stamped right now is

about 15 to 17 days after the produce leaves the processing plant?

Is that right or not?

Mr. TAYLOR. I don’t personally have those facts at my disposal.

I don’t have any reason to——

Mr. KUCINICH. You need to have them. You are the guy. You got

to have them. It is 15 to 17 days after the produce leaves the processing plant. But a few years ago, Mr. Jordan, the ‘‘best consumed

by’’ date for fresh produce was more like 5 to 10 days.

I would ask you, Mr. Taylor, to take note of that. Wouldn’t it

show you that you are closing a window here a little bit on issues

of safety? You are opening up the possibilities of contamination, especially if these bagged leafy greens become hothouses of contamination if there is not consistent refrigeration?

Mr. TAYLOR. Again, science-based preventative controls are all

about understanding issues just like that. What is the likelihood of

growth? What are the conditions that would reduce growth? What

is an acceptable holding period for products? So in doing our preventative control regulations, that is the kind of issue that we will

need to address.

Mr. KUCINICH. I have one final question and then we are going

to go over to my colleague, Mr. Jordan. Ms. Pegg, CALGMA is silent on the selection of ‘‘best consumed by’’ dates. It doesn’t require

processors to reverse the trend of longer and longer ‘‘best consumed

by’’ dates. Isn’t that right?

Ms. PEGG. I really don’t know. I don’t know what the——

Mr. KUCINICH. The correct answer in this case was yes.

Ms. PEGG. Oh, OK.

Mr. KUCINICH. We are going to go to Mr. Jordan.

Mr. JORDAN. Thank you, Mr. Chairman. Let me thank our witnesses again for being here.

Let me just pick up where the chairman was. Mr. Taylor, you

said you didn’t know the 15 to 17 days now or that it was a few

years ago 5 to 10 days. Is it that you personally don’t know or is

that something that the USDA does not track and does not have

any knowledge of?

Mr. TAYLOR. Well, I am with the Food and Drug Administration.

Mr. JORDAN. The FDA, excuse me.

Mr. TAYLOR. I don’t personally know. I am confident that our

technical experts would have that information. We can certainly

share what knowledge we have with you for sure.

44

Mr. JORDAN. Ms. Pegg, would you say that the chairman’s statement was accurate, that what has happened over the last several

years is that date has gone from 5 to 10 to 15 to 17?

Ms. PEGG. I remember a lot of discussion about this in 2006

when the outbreak occurred but I don’t know what the guidance is

or where the trends have gone. I don’t have any information on

that right now.

Mr. JORDAN. We are going to have votes here in a few minutes.

One of the bills we are going to be voting on is Mr. Dingell’s legislation, at least it looks like that. Give me your thoughts on that

piece of legislation. I know many in the agriculture community are

concerned about that.

Ms. Pegg, I think you said in your introduction at least to the

chairman that you have a background with the California Farm

Bureau. So let us start with you. What are your thoughts on that

bill that looks like it is going to be on the floor here in just a few

minutes?

Ms. PEGG. We do support the bill. We look at what the working

group produces as they review current statutes and regulatory authorities. We are looking at how we can move into the 21st century.

I think what many of these measures——

Mr. JORDAN. Let me ask you specifically about some of the concerns we have heard from folks in agriculture.

Ms. PEGG. I got a long email last night.

Mr. JORDAN. In particular, your former employer, the Farm Bureau, do you think they are way off base? Or, recognizing where

you worked before, do you think they have some valid concerns?

Ms. PEGG. I think in working with FDA and USDA we have a

good partnership where we can both educate one another about

what happens in the field and can assist in giving guidance on food

safety practices. So I think it is a good partnership. That is why

I personally do not necessarily share the concerns of my former employers.

Mr. JORDAN. Mr. Taylor, would you like to comment on that bill?

Mr. TAYLOR. I think the core strength of this bill is that it would

have Congress mandate the shift to a prevention strategy and empower FDA to set and enforce standards for preventative controls

that will make food safer throughout the system. For produce, it

would of course direct FDA to issue regulations to establish enforceable preventative controls. Importantly, it would direct FDA to

take into account the diversity of the grower community and to

take into account environmental impacts. These are all factors that

have to be considered in order to get it right in terms of having

an abundant, safe supply of fresh produce, which is an important

goal that we all share.

With respect to the concerns of the agricultural community, we

have looked at the bill really hard. I think the bill has evolved a

lot. It now very much focuses FDA’s authorities with respect to on

farm activity to those areas such as fresh produce where there is

going to be a science-based or risk-based justification for establishing standards. So I think this is a fairly focused bill in terms of

its impact on farming.

Mr. JORDAN. Let me ask you a practical question. Think of the

family out there who this time of year sets up the sweet corn stand

45

to make a few extra dollars for their family. Tell me the impact of

the legislation on the floor today or of what we are talking about

here in this hearing. Tell me how they might be impacted.

Mr. TAYLOR. In developing regulations like this for an industry

that has that degree of diversity——

Mr. JORDAN. In my background, I remember dealing with this

back at the State House. It was an uproar when there were some

changes in the State of Ohio on how we were going to address

truck farms or whatever the official title is they are given in the

Ohio revised code. We heard from mom and pop produce businesses

all over the State.

Mr. TAYLOR. Activities like that, it is very hard to envision how

a Federal regulation could establish a meaningful preventative control regime for an operation like that. So again, taking the command of the bill seriously, we would look at where the appropriate

exemptions are and how do you put the boundaries around these

requirements so that we achieve the food safety objective but also

do it in a feasible, realistic way. That is the command we hope we

get from Congress. We plan to do that.

Mr. JORDAN. Ms. Pegg.

Ms. PEGG. I think he does bring up a lot. You have to take into

consideration what happens at different scales. I think we will be

working a lot with FDA on the implementation of it and providing

our experience and our guidance there in that area.

Mr. TAYLOR. Absolutely.

Mr. JORDAN. Mr. Chairman, I have no further questions. Thank

you.

Mr. KUCINICH. We will go to a second round of questions. This

should be a little bit shorter. Then we will go to the next panel.

Mr. Taylor, if you stretch out that ‘‘best consumed by’’ date on

ready to eat produce, it is a benefit for the processor. It obviously

facilitates long distance transportation. Instead of 5 to 10 days, 15

to 17 days for ‘‘best used by.’’ But isn’t a shorter ‘‘best consumed

by’’ period in the interest of protecting the public’s health, Mr. Taylor?

Mr. TAYLOR. The question is what are the holding conditions for

that product and what is the nature of the product. I think you

have to have a scientific answer to that question. There is no question that if you have pathogen growth potential and you are not

using cold chain sorts of safe handling practices then the longer

you hold the product, the greater the risk. So I think that we need

a science-based answer to what is right there.

Mr. KUCINICH. Let us look at a science-based case. In the case

of the 2006 E. coli 0157 outbreak that affected at least 204 people,

has the FDA correlated the location and date of the consumption

of the tainted spinach and the date of illness with the date of harvesting? Harvested, ‘‘best used by,’’ 204 people with E. coli, have

you done the correlations?

Mr. TAYLOR. I don’t know the answer to that. I started 4 weeks

ago. I can find out what investigation was done and we can brief

you all and give you an answer later. It is a fair question.

Mr. KUCINICH. OK. Since you don’t know the answer and you

started 4 weeks ago—it is lovely to have you here—will the FDA

submit in writing to this committee for inclusion in the record a

46

spreadsheet with that information for each of the known victims of

E. coli 0157 poisoning? Namely, we want the location and date of

consumption of the tainted products, the date of illness, and the

original date of processing. Can you do that?

Mr. TAYLOR. We will provide you the information we have.

Mr. KUCINICH. If you could do that, we would really appreciate

that. As a matter of fact, while we are at it, could you do that for

all produce related outbreaks since 1999? You know which ones

they are. We have talked about a few of them.

Just create a spreadsheet. It shouldn’t take too long to do since

you already have the information. Put it in a usable form for this

committee. It can help us in our deliberations about this issue of

the transportation time and the ‘‘best used by’’ date, which so many

consumers use as guidelines as to whether or not to consume something.

I have one final question for each of the witnesses. Mr. Taylor,

given CALGMA’s purpose to protect public health by reducing microbial contamination of leafy greens in the ‘‘field-to-fork distribution supply chain,’’ wouldn’t it be more consistent with the purpose

of CALGMA to include science-based restrictions on the packaging,

distribution, and marketing practices of ready to eat produce rather

than CALGMA’s current near silence or lack of specific requirements on those issues?

Mr. TAYLOR. Mr. Chairman, I can’t speak to the permissible

scope of marketing agreements at USDA. But the answer to whether we need standards at each of those stages along the way that

are enforceable and set by the Food and Drug Administration is

clearly yes.

Mr. KUCINICH. Science-based?

Mr. TAYLOR. Yes, sir.

Mr. KUCINICH. Ms. Pegg.

Ms. PEGG. Just to differentiate, too, the California Marketing

Agreement is based on the California Marketing Act. We are looking at a national program. I think that through this process as well

as the public process we can ensure that a final program does include all those components.

Mr. KUCINICH. Before we conclude this, I would like to go back

to Mr. Taylor. I want to read you a few opinions about the effect

of the packaging used to market ready to eat produce.

‘‘Because of the higher relative humidity of ready to eat packages, the risk of pathogenic growth is higher. Each degree over 40

degrees will increase the rate of pathogenic growth.’’ This is from

Larry Beuchat, Ph.D., at the Center for Food Safety of the University of Georgia.

‘‘The problem comes when leafy greens are coming home in ready

to eat bags. If they are left anywhere when temperatures are above

50 degrees Fahrenheit, it is widely known they can become breeding grounds for bacteria.’’ That is from Mr. R. Atwill, Ph.D., of the

Western Institute for Food Safety and Security.

‘‘It is a perfect environment for all kinds of things to grow.’’ That

is from Elisa Odabashian, the West Coast director of Consumer

Union, the publisher of Consumer Reports.

47

Mr. Taylor, isn’t true that all confirmed incidents of E. coli 0157

outbreaks since 1999 have been caused by pre-cut packaged

greens?

Mr. TAYLOR. As far as I know. I am only qualifying that because

I am under oath and just don’t want to misstate it.

Mr. KUCINICH. The Chair recognizes Mr. Jordan. Do you want to

take 5 minutes?

Mr. JORDAN. Thank you. I will be brief. I just have a quick question on the bill that is going to be on the floor here in a few minutes.

According to what we have looked at in the bill, this gives the

FDA pretty broad authority to regulate how crops are raised. In effect—I will be interested, I know we have a farmer on the next

panel—dictating how farmers produce their crop. Is that your understanding of how the legislation is going to work?

Mr. TAYLOR. There is no sort of broad authority for FDA to tell

farmers how to grow their crops. There is a very specific authority

that if we, based on science, can identify a commodity that poses

risks that can be addressed through preventative control measures,

such as the industry itself is implementing, then we are empowered in that specific case to establish enforceable standards. But it

is not a broad preventative control mandate.

Mr. JORDAN. It seems to me, as the chairman has gone to great

lengths to point out and I think appropriately so, that the problem

doesn’t seem to be with the farmer producing the crop. It seems to

be elsewhere in the supply chain, elsewhere in the processing or

transportation or what have you.

That is my concern. The farmer knows how to produce his crop.

Let’s not over-regulate and overburden this guy who is producing

the food. Let’s certainly not go out there and make it difficult for

the mom and pop who are setting up the wagon and selling sweet

corn to the neighbors and to the neighborhood. But we just know

how government works.

Look, we were told last year that we are just going to have one

small little bailout. We promise it will just be one little bailout and

this thing won’t grow. We don’t want to get into the private sector.

Well, we have seen what has happened in the last year just in the

financial industry, let alone the automotive industry. So these always start out with great intentions, but we know the pattern of

government and what typically happens. That is my concern.

Frankly, it is in a large degree the chairman’s concern. Certainly,

lots of folks in agriculture, it is their concern because they just

know the nature of government.

It is tough enough many times for folks in agriculture to deal

with the State Department of Agriculture and other regulatory

agencies at the State level, let alone now Big Brother in Washington telling them how to run their farm or how to run their business. That is my big concern.

We will continue to watch this whole process relative to the bill

and the issue we are addressing here in the committee.

With that, I would yield back, Mr. Chairman.

Mr. KUCINICH. Thank you, Mr. Jordan. We are going to go to one

more round here before we get to the next panel.

48

Ms. Pegg, here is another example of something farmers have a

problem with. CALGMA identifies a number of sources of potential

pathogens that must be avoided for certification. These include

birds, feral pigs, and other wildlife as well as cattle. To comply,

farmers are paying for measures such as the building of large

fences to thwart wildlife. But the science is hardly conclusive, Ms.

Pegg, that the wildlife was a likely source of contamination in the

2006 spinach contamination. Isn’t that so?

Ms. PEGG. Well, in the 2006 outbreak, actually there was, and

maybe FDA can speak to this, but there was concern about wildlife

in that outbreak that did occur. Wild pigs were the wildlife in question.

Mr. KUCINICH. You are saying there was concern. Is that evidence-based or is it conjectural? What is the basis of that concern?

Was it conclusive or was it conjectural? Was it science-based? What

was it?

Ms. PEGG. Maybe you can speak to the investigation but if you

have been to the Salinas Valley and that region——

Mr. KUCINICH. I have been to Salinas Valley.

Ms. PEGG. OK. In that area there is some known wildlife activity. Now, the California Leafy Greens Handlers Marketing Agreement does look at other potential risks. They also do rank wildlife

as high risk or low risk.

Mr. KUCINICH. In order to facilitate this hearing, I would like you

to supply to this committee the information about the basis of your

statement that wildlife was somehow connected with this. I would

like to see some scientific backup of that, OK?

Ms. PEGG. OK, I will get that. It is for the 2006 outbreak?

Mr. KUCINICH. Right, exactly.

Ms. Pegg, a leafy greens field’s proximity to cattle is a high risk

circumstance for E. coli contamination. Does CALGMA make distinctions between high risk circumstances and low risk circumstances such as the presence of frogs or other wildlife? Does

CALGMA prioritize, in other words, high risk circumstances while

deprioritizing low risk circumstances?

Ms. PEGG. I believe it does.

Mr. KUCINICH. Isn’t it true that all farms have to eliminate riparian areas and hedge rows if they are within a CALGMA specified distance from a crop edge?

Ms. PEGG. I am not positive on the current best practices on that.

Mr. KUCINICH. Ms. Pegg, I want you to look at this slide on the

screen. Can staff put the slide up? OK. The aerial photograph

above was taken before CALGMA. You can plainly see a strip of

green between several fields where trees and hedges are and where

birds and wildlife can take shelter. Now look at the aerial photograph below, taken after CALGMA. Here you can plainly see that

the strip of trees and hedges has been eliminated. There is no wildlife there.

Isn’t it true, Ms. Pegg, that CALGMA would have required the

cutting down of those trees?

Ms. PEGG. I don’t know if I can speak to that because I don’t

know if they are CALGMA participants. This has been a huge

issue. We have discussed this since 2006, how do you deal with

49

whether there are there real risks or not. I was talking to California Fish and Game this week about it. It is a big issue.

Mr. KUCINICH. You are the Nation’s advocate for farmers. Does

it make sense for the USDA to advocate for a processor-based

framework that requires all farmers to spend heavily to prevent

low-risk events such as contamination by wildlife while the higher

risk but rarer circumstance of proximity to cattle and the known

risks associated with processing and packaging leafy greens are

more significant contributors to the problems CALGMA intends to

address?

Ms. PEGG. Any program needs to address the risks and look at

high risks versus low risks. I think what we are looking at in terms

of any program is all chains in the process and how to reduce the

risks.

Mr. KUCINICH. So who should pay for compliance with CALGMA,

the farmer or the processing industry? Should the cost be shared?

Ms. PEGG. Under the marketing agreement, I believe they propose a per carton assessment that the handler pays to cover the

costs of the marketing agreement.

Mr. KUCINICH. So who currently pays for the measures adopted

to comply with CALGMA?

Ms. PEGG. I think for the California Leafy Greens Handlers Marketing Agreement, that is a per carton assessment that pays for it.

Mr. KUCINICH. Farmers.

Ms. PEGG. Their handler signatories. So handlers pay it.

Mr. KUCINICH. Farmers.

OK, I think we have completed questioning of the first panel. We

will be in touch with you regarding the followup on questions that

we have asked. We appreciate your cooperation with the committee

and your presence here today.

Those buzzers that you heard are the reason why I am going to

have to recess this meeting until after votes. How many votes do

we have? There are three votes so I would like to take a half hour

break. Then we are going to come back for the second panel. We

will take testimony from those who are here to talk about their experiences.

I want to thank the representatives of the FDA and the USDA

for being here. We look forward to working with you on these

issues so that we can help consumers across America have more

confidence in the safety of our leafy greens packaged foods. Thank

you very much.

The committee stands in recess for a half hour. We are going to

vote.

[Recess.]

Mr. KUCINICH. Before we begin, I just want to acknowledge the

work of our staff on both sides who have helped with this hearing.

We appreciate your work. I want to make it known that one of our

staffers, Charity Tillemann-Dick, who has done a lot of work on

this could not be here today because of an illness. We look forward

to her return. But she did a lot of great research and I just want

to acknowledge that for the record, actually. Thank you.

We are going to go to our second panel of witnesses. I would like

to introduce them. We will start with Ms. Kelly Cobb. Welcome,

Ms. Cobb. Kelly Cobb is a survivor of E. coli poisoning and has

50

come here today to share her story with us. Her husband, Matt

Cobb, serves in the U.S. Marines. They are parents of two young

children.

Mr. Scott Horsfall is the chief executive officer of the California

Leafy Greens Marketing Board. Mr. Horsfall has served as chairman of the U.S. Agricultural Export Development Council, was a

member of the Agricultural Trade Advisory Committee for Fruits

and Vegetables, and is past chairman of the Produce Marketing Association’s International Trade Conference. Welcome, Mr. Horsfall.

Mr. Dale Coke, welcome. Mr. Coke is a farmer and a member of

the Community Alliance with Family Farmers. Mr. Coke is also the

founder and President of Coke Farm, a produce cooling, storage,

and shipping company located in San Juan Bautista, CA that represents local California organic growers in selling throughout the

United States and Canada. He is also a partner in Jardines, a diversified organic farming operation growing on approximately 500

acres in Monterrey and San Benito, CA counties. The sixth generation of his family born in California to work in agriculture, he pioneered spring mix lettuce and was instrumental in developing its

market.

Ms. Caroline Smith DeWaal, welcome. Ms. DeWaal is the director of Food Science at the Center for Science in the Public Interest

where she is a leading consumer analyst on reform of laws and regulations governing food safety. Since 1999 she has maintained and

annually published a list of food-borne illness outbreaks organized

by food source that now contains over 15 years of outbreak reports.

She has presented at numerous conferences. She is a co-author of

the book, Is Our Food Safe: A Consumer’s Guide to Protecting Your

Health and the Environment and has authored numerous papers

on food safety.

I want to thank the witnesses for their presence here today. It

is the policy of our Committee on Oversight and Government Reform to swear in all witnesses before they testify. I would ask that

you rise and raise your right hands.

[Witnesses sworn.]

Mr. KUCINICH. Thank you very much. Let the record reflect that

each of the witnesses has answered in the affirmative.

As with panel one, I ask that each witness give an oral summary

of his or her testimony. I would like to see you keep that summary

a maximum of 5 minutes in duration. Any testimony that you want

to add beyond that and your entire statement will be in the record.

Anything you want to send to this committee within a few days

will be included the record as well. Your complete written statement will be in the record.

Ms. Cobb, welcome. I would like you to be our first witness.

Would you please begin?

51

STATEMENTS OF KELLY COBB, SURVIVOR OF E. COLI POISONING; SCOTT HORSFALL, CHIEF EXECUTIVE OFFICER, CALIFORNIA LEAFY GREENS MARKETING BOARD; DALE COKE,

FARMER AND MEMBER, COMMUNITY ALLIANCE WITH FAMILY FARMERS; AND CAROLINE SMITH DEWAAL, DIRECTOR

OF FOOD SCIENCE, CENTER FOR SCIENCE IN THE PUBLIC

INTEREST

STATEMENT OF KELLY COBB

Ms. COBB. In May 2008, I was busy as a stay at home mom raising my two children, Liberty, who is three, and Matthew, who was

one at the time. We were in Washington visiting family from California. We were there without my husband because he was serving

as a Marine in Iraq for the second time.

On May 10th, my mom invited me to go to a banquet dinner with

her and some of her friends. Little did I know, by accepting her invitation I would be changing my life forever. That night I ate a

salad that was contaminated with E. coli. My mom, my children,

and her friends who were there with us happened to sit at the

same table. I just happened to pick the seat that was contaminated. My children were there with us. My son was on my lap but

luckily he didn’t eat greens at the time.

On May 15th, I was getting ready for our drive back to California. I went to bed that night with a stomach ache and woke up on

May 16th with diarrhea and most painful stomach cramps that occurred every 10 minutes. My stool turned to blood at about 5.

I then proceeded to go to the ER where they just said that I had

a bacterial infection. I went home and was unable to hold down

water or the medicine that they gave me so I returned to the hospital. Two days later I was told that I had E. coli and that was the

cause of the illness, not what they had thought. I was discharged

from the hospital only to return a couple of days later because I

had developed a condition of HUS.

I was told at that time that my kidneys were only functioning

at 50 percent. I was then started on plasmapheresis where they cycled out my blood and put in the new stuff. Over the time that I

was in the hospital, I had over 50 blood draws, two ultrasounds,

a CAT scan, a colonoscopy, seven IVs, a central line in my neck,

four units of whole blood, and 80 units of plasma.

Both my husband and my father were in Iraq at the time. I had

to send a Red Cross message to my husband to let him know what

was going on. He was unable to come home. I had the kids. I was

the only caretaker with him being gone so my mom took over that

responsibility and set up child care for them while she was at

work. They came to see me at the hospital every day but they did

not understand why I wasn’t able to go home with them or why

they couldn’t stay with me. They were so young that they didn’t

understand what was going on.

There were several times that I didn’t think I was going to make

it because of how sick I was. I remember on 1 day, I think it was

the 28th, I had an allergic reaction to some pain medication that

I was given and I got intense chest pain. I remember blacking out

and not really knowing what was going on. I honestly thought I

was going to die right there on the hospital bed while my husband

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and father were in Iraq and the kids were at home. I thought I

wouldn’t be there with them anymore.

With that, I was unable to really focus on what the nurses were

telling me. They gave me another medication to help with the reaction.

From that incident, from the E. coli I no longer eat any produce

that I can’t see being washed myself. I have gone to restaurants

and asked them how they prepare their salads. I clean everything

from a bag of lettuce to a watermelon because when you cut

through it, it is going to hit your fruit.

The time I have with my family means so much more to me now

because I know that at any time it can be taken away from me.

I am honestly surprised with how sick I got that I am here today.

If anything, I would want the parties at fault in my particular

case to know that they took me away from my kids for 2 weeks.

That is time that they will never get back. My son was one. He developed every day that I was gone. He came to the hospital saying

new words every day and doing new things.

I can’t describe to you the pain that I was in because I don’t have

a comparison that I could give to you. I would rather break bones

than go through that. I would rather have a broken arm right now

than go through the pain that I felt from the E. coli. I don’t have

a comparison to actually give to you on what I felt.

It could be their family. It could just as easily have been one of

my kids. Had it been, it would have been devastating to them what

I went through.

[The prepared statement of Ms. Cobb follows:]

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Mr. KUCINICH. Thank you very much for coming here to testify.

We are certainly going to be having some questions of you when

we go to that phase of this hearing.

At this point, I would like to ask Mr. Horsfall to proceed for 5

minutes. Thank you very much.

Before you proceed, I want to welcome some of our visitors here

from China, Macau. Thank you for being here.

Please proceed.

STATEMENT OF SCOTT HORSFALL

Mr. HORSFALL. Thank you. Good afternoon, Chairman Kucinich

and Ranking Member Jordan. I am happy to be here. I am always

happy to talk about our program.

I will get to my statement but I would express to Ms. Cobb that

what she went through does not fall on deaf ears in our industry.

Shortly after I started this job, USA Today ran a recap. It was a

year after the original outbreak. They presented the stories of the

four or five people who had died because they ate spinach. I know,

because I work with this industry, that they take that to heart.

They are trying to do everything they can do so that there aren’t

more victims and so that we can reduce that risk as much as possible.

The Leafy Greens Marketing Agreement was established in 2007.

It is a mechanism, quite simply, for verifying through mandatory

government audits that farmers of leafy greens follow a rigorous

set of food safety standards. We are an instrumentality of the State

of California and we operate with oversight from the California Department of Food and Agriculture.

Although the leafy greens industry had always prioritized food

safety, in the aftermath of that outbreak in 2006, farmers, shippers, and processors recognized that more effort was needed to protect public health. The question was how to do it. A lot of different

approaches were looked at, including regulation at both the State

and national levels, marketing orders, and a marketing agreement.

The decision was ultimately made to go with the tool that was most

readily available, which was a marketing agreement.

It is a voluntary organization but it does have the force of government behind it. Our members, when they do join, it is mandatory that they follow the rules of the program. It also has the flexibility to change and amend the program as we get new research.

You have talked about research a lot already this afternoon. We

are keenly interested in research that is being done so that we can

make the program better. That flexibility is actually one of the key

benefits of the LGMA structure.

Our program is focused on preventing the introduction of pathogens into leafy greens fields and farms. We applaud the Obama administration and the President’s Food Safety Working Group for

their focus on prevention in their approach to improving food safety. On July 7th in their press conference we were happy to hear

Vice President Biden and Health and Human Services Secretary

Sebelius talk about prevention as job No. 1.

I was asked to talk about where our metrics came from. As the

LGMA was being developed, there was a parallel effort to create

a set of food safety practices and standards, sometimes referred to

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as good agriculture practices or metrics. They were developed by

university industry scientists as well as other food safety experts,

farmers, and shippers. Those standards were reviewed by FDA, the

USDA, and other State and Federal health agencies. They cover

the major risk areas that have been identified by FDA and other

food safety experts.

Practices include careful attention to site selection for growing

fields based on farm history and proximity to animal operations,

appropriate standards for irrigation water and other sources of

water, prohibition of raw manure and the use of only certified safe

fertilizers, and of course good employee hygiene in fields and harvesting.

Our members are subject to mandatory audits by the California

Department of Food and Agriculture to ensure that they are in

compliance with the program. Those auditors are USDA trained

and the process that we use is a USDA certified audit process. Our

members face penalties if they are not in compliance up to and including decertification from the program, which can lead to serious

and significant repercussions for the company. From July 23, 2007

when we first began our auditing, we have done over 1,000 government audits of our members. Those continue today even as we

speak.

We all know that maintaining food safety vigilance is crucial to

the future of the produce industry. While there is still very much

to do—and we are not done—I believe that the leafy greens industry is doing more to provide a safe, wholesome, and delicious product now than they ever have before.

Thank you very much.

[The prepared statement of Mr. Horsfall follows:]

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Mr. KUCINICH. Thank you very much, Mr. Horsfall. Mr. Coke,

you may proceed for 5 minutes. Thank you.

STATEMENT OF DALE COKE

Mr. COKE. Good afternoon, Chairman Kucinich and Ranking

Member Jordan. Thank you for inviting me here today.

I have been asked to address the impacts of the California Leafy

Greens metrics on farming practices. For growers in California, it

is estimated that the economic impacts are on the order of about

$18,000 per year on average per farm. That will be higher for larger farms and possibly less for smaller farms.

Growers have to, of course, do testing of water, fertilizer, soil

amendments, and anything else that goes onto the crop. They have

to document all of this. They have to be aware of animal incursions, pay attention to vegetation, and then also provide some kind

of traceability.

Traceability is not such an issue for a grower like ourselves. Organic growers have had to be able to trace a product for years.

There have also been prohibitions against manure use for organic

production for years. For compost, there is no sewage sludge or

other kinds of toxic chemicals used.

But organic growers are facing significant issues with the push

by regulators to ban wildlife and non-crop vegetation like wind

breaks and habitat, which are things that are supposed to be encouraged by organic laws that pertain to maintaining your certification.

Environmental impacts often vary depending on the inspector

and his interpretation of the metrics. There are certain companies

that use their own metrics, which are called super-metrics in the

industry. Wildlife, non-crop vegetation, and water bodies are normally viewed as food safety risks. A lot of environmentally positive

projects have been abandoned by growers who have been threatened with the loss of the ability to sell their crops.

Wind breaks, vegetative filter strips, tail water reuse reservoirs,

grass roadways, and vegetative ditches have been removed to comply with the inspectors when they come out to check on the crop.

Many fields have deer and pig fencing. Some also have frog and rodent fencing even though those haven’t been found to be vectors of

pathogens. Some of the fields for leafy greens use poison traps for

rodents. Secondary poisoning of raptors and owls can occur with

this.

A lot of these practices are more based on the processor’s having

problems pulling them out of the harvested crop because of the nature of the harvest of the crop than it has to do with being a food

safety issue.

Practically, this has been a big step backward from environmental protection. It was just starting to move forward on farms.

There is a lot more money and time that farmers have to spend

trying to comply with these metrics and document this. The majority of the food disease-related outbreaks that are associated with

leafy greens come from pre-cut processed products. There is some

kind of failure during that process to make it ready to eat or to

make it clean enough that you don’t have the pathogens.

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Salad processors tend to point to the fields as being the issue. It

is very difficult for farmers to grow sterile crop in a open field. We

have always had employee hygiene. We are concerned about our

compost and we don’t use manure. We test our water and our fertilizer, as many farmers do just to make sure that we are not part

of the problem.

Leafy greens farmers are now in the unenviable position of having to pay for and comply with a roster of unproven safety metrics

in attempting to grow pathogen-free crops and being held potentially liable for it.

The California Leafy Greens Marketing Agreement has made

steps in the right direction, I think, for the processed product that

it should be representing. I don’t know that marketing agreements

are an appropriate way to provide food safety, whether they be

State or national. In my mind they are something that focuses on

marketing products rather than on the actual conditions of growing

products.

This being said, if this were to be moved in that direction and

if the focus was just on processed food, you would reduce a lot of

impact. There are a lot of farmers that don’t grow leafy greens that

go into bags. If the focus was just on the processed arena, you could

exempt them.

I was there when they started having the meetings to decide

about leafy greens in California. They included specific vegetables.

I asked why they were just including a few vegetables. There was

no answer because they didn’t differentiate whether it was a whole

head or a bunched product. It was just they are going to include

these vegetables.

The only reason I can come up with is that it is something to enhance their competitive edge. It gives them a marketing advantage

if you need to adhere to these metrics. You kind of raise the bar

and a lot of farmers might not be able to make that.

[The prepared statement of Mr. Coke follows:]

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Mr. KUCINICH. I want to thank the gentleman for his testimony.

Your entire statement will be included in the record. As someone

who has been so involved in the development of this industry, we

appreciate your presence here.

The Chair recognizes Ms. Smith DeWaal for 5 minutes. After

your testimony, we are going to go to a round of questions of the

panel. You may proceed.

STATEMENT OF CAROLINE SMITH DEWAAL

Ms. DEWAAL. Thank you very much, Chairman Kucinich and

also Representative Jordan. My name is Caroline Smith DeWaal.

I direct the Food Safety Project for the Center for Science in the

Public Interest.

CSPI has concerns about the increasing use of marketing orders

as a vehicle for regulating safety. Fifteen different agencies administer 30 different laws that regulate food safety in the United

States today. Marketing orders really represent a further

fractioning of this already widely fractured system.

Food-borne illness outbreaks linked to fresh produce are among

the major public health problems when it comes to food safety.

Leafy greens and salads are among the top food categories along

with beef, poultry, and seafood that cause both outbreaks and illnesses. In addition, the average size of outbreaks linked to produce

tends to be larger so they tend to affect more people.

The importance of robust and reliable food safety practices on the

farm cannot be understated. Leafy greens, once contaminated, can

support, grow, and spread pathogens until they are consumed.

Chlorination and other post-harvest controls can help reduce crops’

contamination between different lots of salad, for example, but they

don’t make contaminated product, product that comes in from the

farm contaminated, truly safe to eat. In fact, scientists have shown

how bacteria can inhabit the washing systems used for bagged lettuce and transfer bacteria from a contaminated lot really onto a

full day’s production of salads.

While FDA has jurisdiction over on farm food safety, it really has

not acted as an effective regulator. They have been using for at

least the past 10 to 15 years the concept of guidance, unenforceable

guidance, to the industry instead of regulation. But the absence of

enforceable rules leaves a significant hole in the fabric of food safety, allowing and even encouraging the industry to weave standards

of its own design.

The Agricultural Marketing Service has served as a friendly regulator of choice when food safety problems arise. At AMS, the food

industry can draft their own rules, called marketing orders or

agreements, to best suit their needs. But AMS is not equipped to

monitor the safety of food. The primary focus of AMS is with the

promotion of food products.

The mechanisms that it uses are limited in terms of their geographic scope and often they are completely voluntary. These are

voluntary systems. Farmers have to agree and the handlers have

to agree to comply. They are limited to U.S. companies and sometimes they are limited to companies just in the State of California.

This is particularly troubling when you consider that 13 percent of

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our diet is from imported produce. So a huge amount of produce is

never going to be subject to these marketing orders.

AMS oversees marketing orders for 22 different commodities including things like almonds and shell eggs. These programs can

really instill a false sense of security both for the industries involved and for the consumers because they really are quality programs. They are not based on safety. But given the absence of rulemaking at FDA, it is not really surprising that in the aftermath of

the 2006 spinach outbreak the leafy greens industry turned to AMS

to create these stronger rules.

I just want to note that these standards really do create uncertainty. They give rise to the private standards which are actually

the complaint of many of the growers today. The growers today are

saying that these standards are too burdensome. But let me be

clear: These aren’t mandatory standards. They are not FDA standards. They don’t apply to imports.

It is critically important that we actually get a system in place

that will protect the public. The Food Safety Enhancement Act,

which is before the House of Representatives, addresses this issue

head on. It requires FDA to consider both food safety and environmental impacts when promulgating regulations for food production.

It requires the standards to take into account small scale and diversified farming, wildlife habitat, conservation practices, watershed protection, and organic production methods. This is all in the

legislation that is before the House.

This provides an appropriate focus on public safety. It gives the

farmers and consumers both an opportunity to weigh in on these

standards, which we don’t have today with the AMS standards. It

would protect the sustainable and organic farming communities

that we all value. These are the type of standards that consumers

cannot live without.

Thank you.

[The prepared statement of Ms. DeWaal follows:]

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Mr. KUCINICH. Thank you very much.

By the way, I just have an update. The bill that was voted on

did not receive the required two-thirds so it will end up going back

for some work. Some of the concerns that were expressed by Members who voted against it were about the effect of the bill on small

farmers and organic farmers. So I think that the Center, which endorsed the bill, needs to take heed of the concerns that are expressed. If we do that, perhaps when the bill comes back out to the

floor we can see it pass. Thank you.

Well, that means we will each have 5 minutes for questions.

That really does mean that we should move this along.

I just want to thank Ms. Cobb. How are you feeling, by the way?

Ms. COBB. I am fine now.

Mr. KUCINICH. How many years ago was this?

Ms. COBB. It was May 2008.

Mr. KUCINICH. Have you felt any after-effects other than the fact

that you are really not keen on eating certain products?

Ms. COBB. Other than at home. No. I am at a higher risk of cardiovascular disease later in life and urinary tract types of issues

but as of right now I have had none of that since that same summer.

Mr. KUCINICH. We are glad you are here.

Ms. COBB. Thank you.

Mr. KUCINICH. I think there needs to be a public face of somebody who has dealt with this. You have dealt with it. It takes a

lot of courage to come before a congressional committee to relate

your experience. We appreciate that you are here.

Ms. COBB. Thank you. I appreciate it.

Mr. KUCINICH. The other thing I want to note is that when Mr.

Horsfall began his statement, I was impressed that you said Ms.

Cobb’s testimony doesn’t fall on deaf ears. What I saw was a real,

unrehearsed response to hearing what you had to say. I just want

you to know that I appreciate that. Sometimes people come in here

with a story that can be very difficult and the individuals who may

have some responsibility in that area generally seem to be impassive about it. You showed some concern. I think that speaks well.

I would like you to address the concern about some of CALGMA’s

metrics and the arbitrariness of them. Your auditor must find that

the adjacent land to a field of greens be free from compost operations within 400 feet of the crop edge while it only requires that

the adjacent land be free from the grazing of domestic animals

within 30 feet of the crop edge. What is the justification for allowing domestic animals, the animal waste products of which are a

component of compost, to be closer to the crop edge than a compost

operation?

Mr. HORSFALL. The LGMA program metrics are based entirely on

risk assessments. I think that is in keeping with FDA guidance.

The compost operations are considered to be a very high risk situation in terms of pathogens. We also have significant buffer zones

if there is a confined animal feeding operation where you have a

large number of animals of risk in a field.

Mr. KUCINICH. Remember, you have domestic animals closer to

the crop edge than the compost operation.

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Mr. HORSFALL. Because the risk assessment tells us that there

is a lower risk involved if you have a couple of animals on a farm.

Mr. KUCINICH. But let us look at the 2006 spinach incident. Isn’t

it true that the field identified as the source of contaminated spinach was less than a couple hundred feet from where domestic animals graze and shade themselves?

Mr. HORSFALL. I don’t know that for sure.

Mr. KUCINICH. Well, let us check it out and see. Maybe you could

look at that. Maybe you could come to some kind of a conclusion

if there is any contradiction there.

Isn’t true that CALGMA’s auditors would not today find any

problem with growing spinach intended for the ready to eat market

growing a couple hundred feet from the land where cattle graze,

exactly the conditions present in the 2006 spinach incident?

Mr. HORSFALL. It would depend on the number of cattle that

were there. I don’t have those numbers in front of me. But in that

particular case, as I recall, the feces that were found that had the

same fingerprint were over a mile away.

Mr. KUCINICH. Should CALGMA be tougher on the processors

who make the bagged lettuce than it currently is?

Mr. HORSFALL. I think processors, if I could address that, processors are under the jurisdiction of FDA. They are already inspected.

Mr. KUCINICH. What about CALGMA? We are looking at a possible nationalization of this. Should CALGMA be tougher on these

processors? You have heard testimony here. What do you think?

Mr. HORSFALL. I think the processors need to be regulated just

as heavily as growers do. That regulation, I believe, is in place

through FDA.

Mr. KUCINICH. I appreciate that.

I just want to ask one more question here. Mr. Coke, you are the

father of the spring mix. Spring mix helped pre-cut packaged leafy

greens become a vegetable consumers like and eat in increasing

portions. It has made a significant health contribution. But you are

also a critic of the ready to eat leafy greens industry.

In your opinion, is there a way for the American public to get the

convenience and health benefits of pre-cut packaged vegetables

without the harm to farmers you mentioned in your testimony?

Mr. COKE. Just as a point of clarification, I developed the concept

of spring mix but I never put it in bags and it was never ready to

eat. It was a field run product. It was washed, cooled, dried, and

packed into three pound boxes.

I always had serious reservations about how that product was

displayed. I didn’t ever want to go into——

Mr. KUCINICH. What would be the long term results, Mr. Coke,

in your opinion, on the environment if CALGMA is nationalized in

its current form?

Mr. COKE. In its current form, I think it will affect too many

growers of lettuce and cabbage and kale and chard, the things that

are traditionally harvested as whole heads or bunched items. They

don’t make a differentiation between them. Those things haven’t

had any outbreaks associated with them. They often have a kill

step associated because people heat them up before they eat them.

They steam them or boil them.

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Mr. KUCINICH. Thank you.

I have some followup questions to Ms. Smith DeWaal. We are

going to put them in writing.

I am going to go now to Mr. Jordan. Thank you.

Mr. JORDAN. Thank you, Mr. Chairman. I will be brief as well

since we have a vote pending.

Let me, too, thank Ms. Cobb for being here. How are the little

ones doing? Are they doing fine?

Ms. COBB. Oh, yes. Matthew doesn’t remember because he was

too young. Liberty still remembers and will talk about when I got

sick from a salad. She know what it was from. For a while she

would tell people not to be afraid of a blood machine because she

remembers coming in while I was having a transfusion done. But

overall they are doing well.

Mr. JORDAN. Well, let me also thank your family for their service

to our country. Thank you all for being with us now. Let me just

get a couple basic facts. What is your home State, Ms. Cobb?

Ms. COBB. My home State is Washington.

Mr. JORDAN. Mr. Horsfall, the program is completely voluntary.

Is that right? I think this came off your Web site for LGMA. There

are 120 handlers for 99 percent of the volume of California leafy

greens. They are all voluntary? That was 120 who joined?

Mr. HORSFALL. Yes.

Mr. JORDAN. What is the assessment? How is that determined

again?

Mr. HORSFALL. We assess our members based on the volume that

they ship. It is a penny and a half per 24-count equivalent box.

Mr. JORDAN. I just want to be clear, are big producers part of it?

In other words, are the farmers part of the organization or is it just

the folks who take the farm product and then package it?

Mr. HORSFALL. Our members are handlers. They are the people

who put products into commerce. The majority of them are growers

as well.

Mr. JORDAN. They are both?

Mr. HORSFALL. Yes.

Mr. JORDAN. So some are both. Some actually produce the product and handle it?

Mr. HORSFALL. Absolutely.

Mr. JORDAN. From the field right to their operation or it could

be around the same premises?

Mr. HORSFALL. Yes, and they sell to each other as well in the industry quite a bit.

Mr. JORDAN. Since you have come into existence, which was 2006

or 2007—what year was it?

Mr. HORSFALL. It was 2007.

Mr. JORDAN. Have there been any outbreaks of E. coli or any

problems?

Mr. HORSFALL. There have been outbreaks that have been reported. I don’t believe that the health authorities have conclusively

finished their investigations yet to say where the product got contaminated. But there was a small outbreak in Washington State

that Ms. Cobb was affected by. Last year there was an outbreak

in Michigan.

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Mr. JORDAN. So can you definitively say that we have seen an

improvement in that there have been less problems since your organization has been formed or is that anyone’s guess?

Mr. HORSFALL. The answer is yes, fewer people have gotten sick

tied to lettuce and leafy greens in the last 2 years than, say, in the

2 or 3 years before that. But I don’t take that as a metric. I think

if anybody is getting sick, then we still have to figure out how to

make the program better. That is where the research comes in.

Mr. JORDAN. Mr. Coke, you are a farmer and a handler. Are you

part of this organization, your farm and your operation?

Mr. COKE. I am not. I have two different entities. One is a sales,

shipping, and cooling company. The other is a farming company.

The farming company contracts with a handler that is signatory to

that. We grow some crops, cilantro, dill, and parsley in this case,

for inclusion in the salad that they want to be grown under those

metrics. So we do that part. Otherwise we have a diverse crop mix.

There are only a few things that would be considered leafy greens.

I have resisted. I think the principle of this agreement is wrong

so I didn’t want to. It has cost me the ability to sell into Canada

because they won’t accept product, even though we are organic and

we test the soil and water. They won’t accept product if you are not

signatory to the Leafy Greens Marketing Agreement. I don’t know.

I would prefer not to go there, to have to. I was hoping that something would become a little more logical and you would focus on

the process part.

Mr. JORDAN. This is a country boy from western Ohio who didn’t

grow up on a farm but we live out in the middle of my wife’s family

farm. You think about when the product is grown close to a

composting site or whatever, but I can remember when they used

to spread manure on the field. It seems to me that the problem has

to be after the product is taken out of the field. That is just common sense. But maybe I am just a country boy.

Mr. COKE. I think you are right. The product has issues. The

slide that you showed about the bagged produce. It is a great concept to give people something that is ready to eat but it is a perfect

incubator. How do you keep that? If you can’t sterilize it, if you

have any little pathogen and you break the cold chain, even the

customer just taking it out to their car and then driving home, potentially it is a hazard. It is a difficult issue to get a product to

market safely, I think.

Mr. JORDAN. We have to vote. Thank you all for coming. I am

sorry we didn’t get a chance.

Mr. KUCINICH. I want to thank Mr. Jordan. I want to thank the

witnesses for being here.

I am Dennis Kucinich, Chairman of the Domestic Policy Subcommittee. Mr. Jordan is the ranking member. Our hearing today

has been Ready-to-Eat or Not?: Examining the Impact of Leafy

Greens Marketing Agreements. We have had two panels. The testimony has been very important. We appreciate your participation.

This committee stands adjourned. Thank you.

[Whereupon, at 4:40 p.m., the subcommittee was adjourned.]

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