Food Safety: FDA Continues to Evaluate and Respond to Business Concerns about the Produce Rule
Released: 2017-11-27T00:00:00

Letter

Background

This section provides an overview of the produce rule and describes how FDA is partnering with states to implement the rule.

Overview of the Produce Rule and Compliance Dates

Produce is an important part of a healthy diet but is susceptible to contamination from numerous sources, including agricultural water, animal manure, equipment, and farm workers. The produce rule established standards to help ensure the safe growing and handling of produce. For example, the rule requires that businesses take steps to ensure that agricultural water that comes into contact with produce is safe and of adequate sanitary quality for its intended use. As part of this, the rule established microbial water criteria to determine the presence of generic E. coli, which is the most commonly used indicator of fecal contamination, and referenced a testing method published by the Environmental Protection Agency to test for the presence of generic E. coli. The rule also established standards specific to sprouts, which are especially vulnerable to contamination because of the warm, moist, and nutrient-rich conditions needed to grow them. In addition to the general requirements of the produce rule, the rule also includes requirements for businesses specifically related to preventing contamination of sprouts, which have been associated with foodborne illness outbreaks.

The rule applies to businesses that grow, harvest, pack, or hold produce, including produce that will be imported or offered for import, with some exemptions based on the produce commodity and the size of a business. For example, the rule does not apply to produce that is rarely consumed raw, such as asparagus or black beans, and produce that is to be consumed on the farm. In addition, the rule does not apply to businesses that have an average annual monetary value of $25,000 or less of produce sold during the previous 3-year period.

FDA’s implementation of the produce rule will occur over several years. According to the rule, compliance dates are phased in from 2017 through 2022 based on business size and other factors. Compliance dates for certain agricultural water standards and for sprouts differ from the compliance dates for other provisions in the rule. For example, compliance for large businesses under certain agricultural water standards with covered activities not involving sprouts is due in January 2020; compliance for small businesses under certain agricultural water standards with covered activities not involving sprouts is due in January 2021; and compliance for very small businesses under certain agricultural water standards with covered activities not involving sprouts is due in January 2022. In 2019, FDA intends to start inspecting produce businesses, other than those growing sprouts. At that time, FDA is to assess compliance with the produce rule, with the exception of the agricultural water standards, for all produce other than sprouts. See fig. 1 for more information on implementation timelines.

FDA-State Partnership in Helping to Ensure Compliance with the Rule

FSMA authorized and encouraged FDA to coordinate with states in helping to ensure compliance with the produce rule. According to FDA officials, developing a working relationship with states to implement the rule is of critical importance because states may have an understanding of farming practices as a result of their historically close relationship with farms. To facilitate coordination with states, FDA established the State Produce Implementation Cooperative Agreement Program. The program is to provide funds to support a variety of state activities, including educating and providing technical assistance to produce businesses, to the 43 participating states. Through the program, FDA obligated approximately $22 million in 2016 to 42 states and approximately $31 million in 2017 to 43 states to help these states implement the rule.

In addition, in September 2014, FDA entered into a 5-year cooperative agreement with the National Association of State Departments of Agriculture—an organization representing state agriculture departments in all 50 states and 4 U.S. territories. Under this cooperative agreement, the association is working with FDA to support implementation of the produce rule by, among other things, providing technical assistance to states to help them implement their produce safety programs. FDA renewed the cooperative agreement in 2016 with an expanded scope to include states’ assistance with helping businesses understand what is expected of them ahead of compliance dates.

FDA Has Continued to Take Steps to Evaluate and Respond to Business Concerns and Is Reviewing the Produce Rule Water Standards

Since we last reported on the produce rule, FDA has continued to use its information clearinghouse, the TAN, to take steps to evaluate and respond to questions and concerns from businesses and other stakeholders regarding the produce rule. FDA has also taken other steps, including funding training for industry, conducting visits to farms, and publishing guidance, to evaluate and respond to concerns. In addition, FDA is reviewing the produce rule agricultural water standards and in September 2017 published a proposed rule to extend compliance dates associated with those standards.

FDA Continues to Evaluate and Respond to Business Concerns through Its Information Clearinghouse

FDA has continued to use the TAN to evaluate and respond to questions and concerns from businesses and other stakeholders regarding all of the FSMA rules, including the produce rule. Since our last report, we found that FDA received 2,665 additional questions submitted to the TAN from September 4, 2016, through June 30, 2017. Of those 2,665 additional questions, 230 questions (about 9 percent) pertained to the produce rule. Of those 230 questions, 154 questions (about 67 percent) came from individuals who self-identified as belonging to “business/industry.” (See fig. 2.)

We reviewed the full text of questions about the produce rule that were submitted to the TAN by those who identified themselves as belonging to business/industry. We reviewed all such questions submitted since September 10, 2015, when the TAN first began operating, through March 31, 2017, the date of the most recently available information when we conducted our audit work (321 total questions). Questions spanned a variety of topics related to the rule, with the most commonly asked questions pertaining to the rule’s agricultural water standards. For example, some businesses submitted questions to clarify whether a specific water testing method they intended to use was acceptable. Other commonly asked questions related to the types of produce covered by the rule and whether a particular business was subject to the produce rule or a related FSMA rule known as the preventive controls for human food rule, which mandates new food safety requirements for food facilities, such as food processing businesses. For example, one business owner who grows almonds and also processes them submitted a question about whether the business is subject to the produce rule or the preventive controls rule. In addition, we found that most submissions (281 questions, or 88 percent) contained requests for additional information or clarification from FDA about implementing the produce rule. Examples of questions about the produce rule that were submitted by businesses are shown in figure 3.

According to FDA data, as of June 2017, the agency had responded to about 84 percent (312) of the 372 questions specifically about the produce rule submitted by businesses to the TAN since it began operating. The agency’s median response time to these questions was 48 business days. As of June 2017, FDA had responded to 81 percent (4,307) of all 5,291 questions submitted to the TAN, with a median response time of 16 business days. Officials we interviewed said that FDA’s longer median response time for produce rule questions submitted by businesses was because the agency needed additional time to address several unique produce rule questions that were not considered during the rulemaking process.

To understand produce businesses’ concerns in detail, FDA officials said they track questions submitted to the TAN. For example, these officials said they track the number of questions requesting more information about implementing the standards in the produce rule. These officials said that FDA is using these data to inform the development of resources to help businesses comply with the rule. For example, the officials told us that they are developing a set of commonly asked TAN questions about the produce rule that businesses can examine on FDA’s website prior to submitting their questions to the TAN. FDA has already published similar commonly asked TAN questions for some of the other FSMA rules. Representatives we interviewed from two industry associations said that such a list of questions would be helpful as businesses work to comply with the produce rule.

FDA Has Taken Other Steps to Evaluate and Respond to Business Concerns, Including Funding Training for Industry and Conducting Visits to Farms

Since we last reported on the produce rule, FDA has taken steps in addition to the TAN to evaluate and respond to business concerns regarding the produce rule.

Training: FDA has funded partnerships to deliver training to help produce businesses meet the new requirements under the produce rule.

The Produce Safety Alliance (PSA)—a collaboration involving Cornell University, FDA, and the U.S. Department of Agriculture—has developed a standardized national training curriculum about the produce rule and has conducted training sessions for more than 6,100 industry participants in the United States and foreign countries. In addition to serving an educational role, PSA training sessions help FDA evaluate and respond to business concerns. For example, FDA officials told us the agency uses questions submitted to the TAN to inform PSA course content, thereby helping to ensure that the training sessions address the most commonly asked questions. In addition, FDA officials and PSA representatives we interviewed said that PSA trainers are able to respond to questions from industry participants during the training sessions. These representatives said that they forward questions that PSA trainers are not able to answer during training sessions to FDA using the TAN and through regular meetings with FDA officials. One PSA trainer we interviewed said that face-to- face interactions with businesses at training sessions are the major way her organization hears about business questions and concerns.

The Sprout Safety Alliance (SSA) is a collaboration between the Illinois Institute of Technology and FDA to enhance the sprout industry’s understanding of the produce rule. SSA has developed a training curriculum to help businesses comply with produce rule standards related to sprout production. SSA has conducted training courses for over 100 industry participants in the United States and Canada. According to an SSA representative, SSA has addressed questions and concerns from sprout industry participants during trainings. This representative also said SSA communicates with FDA about questions SSA trainers are unable to answer.

Table 1 provides information about trainings provided by PSA and SSA.

Educational Farm Visits: FDA officials participated in educational farm visits in 2016 and 2017 across the United States. According to FDA officials we interviewed, these visits were intended to broaden FDA’s knowledge of industry practices on these farms and were not for compliance or inspection purposes. FDA officials said they learned about a variety of industry concerns during these visits, including industry’s concerns with the water standards under the produce rule. FDA conducted these visits in a number of states, including Alaska, Arizona, California, Colorado, Georgia, Maine, Maryland, Nevada, New Mexico, Oregon, Texas, Vermont, Washington, Wisconsin, and the U.S. Virgin Islands, according to agency officials.

Outreach to Produce Industry Associations: According to FDA officials, the agency performs outreach to various produce industry associations to educate businesses about the produce rule, answer questions, and learn about produce business concerns. For example, FDA officials said that, since we last reported on the produce rule, they have attended industry conferences and held outreach meetings with produce industry associations and they learned about specific concerns, such as businesses’ need for additional training on the produce rule and for information on how to identify materials that are suitable to properly sanitize surfaces with which produce comes into contact.

On-farm Readiness Reviews: According to agency officials, these are voluntary reviews during which state inspectors and educators, accompanied by FDA officials, review businesses’ progress toward meeting the produce rule standards to promote compliance with the rule. States and FDA piloted the program in 2016 and, according to agency officials, they plan to roll out the full program in late 2017 or early 2018. In addition to helping businesses comply with the rule, FDA officials said these reviews have helped the agency learn about businesses’ questions and concerns. For example, officials said they learned during these reviews that some businesses needed additional information regarding water testing methods under the rule, including information on the number of water samples to be collected and the locations of testing laboratories.

Produce Safety Network: Recognizing regional differences in growing practices, FDA established the Produce Safety Network in 2017 to address the unique needs of produce businesses in various parts of the country, according to agency officials. This network was established, in part, to respond to business questions and concerns, according to FDA officials. The network is made up of FDA produce safety experts and specialized investigators based in different parts of the country who help evaluate and respond to questions from businesses, state regulators, and other stakeholders in their regions, according to agency officials. For example, according to FDA officials, these produce safety experts learned about business questions regarding FDA’s list of produce the agency considers rarely consumed raw and not subject to the produce rule. In response to these concerns, the network developed a fact sheet outlining FDA’s rationale for developing the list.

Guidance: According to FDA officials, the agency has been working on guidance to assist businesses in complying with the produce rule. FDA officials said guidance allows FDA to respond to questions and concerns related to the rule. For example, in January 2017, FDA published draft guidance on sprout-specific requirements under the rule. FDA officials told us they conducted outreach to sprout businesses before releasing this guidance to let businesses know why the guidance was issued and that it was available for public comment. In developing the guidance, FDA also took into account public comments made during the rulemaking process, according to FDA officials. An SSA representative we interviewed confirmed this, saying that the draft guidance was responsive to comments made by sprout businesses during rulemaking that asked FDA to include specific examples of how businesses were to comply with requirements. This representative said the draft guidance contained relevant examples. In addition, in early September 2017, FDA published guidance to help small businesses comply with the produce rule. The guidance provides small businesses with information about who must comply with the rule, training required, and which businesses are eligible for qualified exemptions from the rule, among other things. See appendix I for a list of published and forthcoming FDA produce rule guidance.

FDA Is Reviewing the Produce Rule Water Standards in Response to Business Concerns and Is Proposing to Extend Compliance Dates

FDA announced in March 2017 that it would conduct a review of the agricultural water standards under the produce rule and, in September 2017, the agency published a proposed rule in the Federal Register that would extend the compliance dates for the water standards by an additional 2 years from the original compliance dates, depending on business size, for produce other than sprouts (see fig. 4).

According to FDA, its review of the water standards is an effort to simplify the standards and make them easier for businesses to comply with. FDA also said that it would use the extended compliance period to work with produce businesses as it considers the best approach to respond to their concerns about the standards. The extended compliance period will also allow FDA to provide additional outreach and training.

FDA officials we interviewed said that their decision to review the water standards and extend compliance dates was in response to industry concerns. They also said that they learned about these concerns through some of the steps they have taken, which we identify in this report. For example, FDA officials said they heard numerous questions and concerns from businesses about the water standards during educational farm visits. Also, as we note above, questions about the water standards were the most common produce rule-related questions submitted to the TAN. According to representatives we interviewed from two industry associations, some businesses did not fully understand the water standards because, among other things, they said the standards do not provide a clear definition of “agricultural water,” leaving some businesses uncertain about what water sources and water uses are subject to the rule. In addition, according to documentation from an industry meeting with FDA, some businesses have expressed concerns about costs associated with the new water testing requirements. Some businesses have also expressed concerns that the water testing method described in the standards has not traditionally been used by industry and that finding laboratories that use this method will be difficult. The standards allow for the use of alternative testing methods, but some businesses have expressed concerns that FDA has not specified these alternative testing methods, thereby leaving businesses uncertain about what methods will be acceptable to FDA. Along with its announcement of a review of the water standards, in September 2017, FDA announced a list of eight water testing methods it determined to be equivalent to the method described in the standards. According to FDA officials, the list was established in response to business concerns, and the agency will add to this list as additional equivalent methods are identified.

FDA officials we interviewed did not provide specific details or a timeline for the agency’s review of the water standards. These officials said the agency is considering adding clarifying information on the standards in forthcoming guidance and, if necessary, making changes to the standards themselves by revising the produce rule. In addition, officials said they plan on hosting a water summit in early 2018 with stakeholders and technical experts.

FDA Has Collected Some Survey Results to Assess the Effectiveness of the TAN and Has Continued to Develop Metrics to Assess Outcomes of Its Other Mechanisms

FDA has begun collecting survey results to assess the effectiveness of its information clearinghouse, the TAN, and has continued to develop metrics that will assess outcomes related to the agency’s overall efforts to evaluate and respond to business concerns. In October 2016, FDA implemented the first part of its survey assessing the TAN. This first part of the survey, which FDA sent to businesses and other stakeholders that submitted questions to the TAN, solicited feedback about the TAN web page provided for submitting questions. This survey included questions about how stakeholders learned about the TAN web page, the clarity of the page, and how FDA could improve the page. Officials told us they have begun making changes to the TAN web page based on the survey results. For example, FDA increased the character limit for questions submitted and provided additional information about FSMA on the web page. FDA is also developing the second part of its TAN survey, which will solicit feedback from stakeholders on the timeliness and quality of answers provided by FDA through the TAN. FDA officials told us that the agency will begin sending out this survey with its responses to TAN questions in spring 2018.

In addition to its assessment of the effectiveness of the TAN, FDA officials told us that the agency is continuing to develop metrics intended to assess a number of desired outcomes resulting from implementation of the rule, including outcomes related to FDA’s efforts to evaluate and respond to business concerns. These outcomes are specified in a draft strategic framework the agency has developed to monitor implementation of the produce rule. The framework includes outcomes such as businesses’ compliance with the produce rule, expanded use of incentives for compliance, and increased dissemination of good practices and other on-farm findings. According to FDA officials, outcomes in the framework that relate to FDA’s efforts to evaluate and respond to business concerns include: increased effectiveness of technical assistance provided to businesses by FDA and its partners, improved working relationships with businesses, and increased capacity of FDA partners to educate businesses.

Performance metrics are to be targeted to measure these outcomes, officials said. These officials also stressed that the draft strategic framework is subject to change.

Because FDA officials we interviewed said they are in the early stages of assessing the TAN and the agency’s other efforts to evaluate and respond to business concerns, we asked produce industry representatives for their perspectives on FDA’s efforts, including representatives from two produce industry associations, a farming organization, and four organizations working with FDA to implement the produce rule. Regarding the TAN, representatives we interviewed from two of these groups said that they had received timely responses from FDA to some questions they had submitted to the TAN, and most groups we interviewed said that at least some of the TAN responses they received provided useful information. However, representatives we interviewed also had two major concerns:

Representatives from three groups said that responses were often slow to arrive; representatives from one of these three groups commented that response times remained largely unchanged since we last reported on the produce rule in November 2016. Representatives from another group commented that FDA’s response times to TAN questions seemed to be related to the complexity of a question. For example, questions that required straightforward answers often received faster responses, while questions requiring more complex answers often got slower responses and, in some cases, FDA responded that the question would be answered in forthcoming guidance.

Representatives from four groups we interviewed also said that some responses lacked sufficient clarity or specificity to adequately address questions and that industry needed more specific, tailored responses from FDA. For example, some FDA responses restated information from the published produce rule without providing additional detail, and other responses contained “canned” language that did not directly address the question.

FDA officials acknowledged that it has been challenging for the agency to provide timely and complete responses to TAN questions, especially early on in the TAN’s operation, but that the agency has to work through complex policy questions related to the rule in order to respond. These officials said they are working to respond more quickly to TAN questions and are revising the FDA review process for TAN responses. Officials also stated that they anticipate posting commonly asked produce rule questions and responses on the TAN web page to provide immediate assistance to businesses for some questions. This is similar to what the agency has done for other FSMA rules, officials said.

Regarding FDA’s other efforts to evaluate and respond to business concerns, representatives from one group we interviewed told us that FDA continues to be open to hearing questions and concerns from the produce industry. Nevertheless, representatives from four groups told us that businesses need more information from FDA to comply with the produce rule and are awaiting FDA’s forthcoming guidance pertaining to the rule. Representatives from one of these groups also commented that guidance is needed to explain the produce rule in plain language so that businesses can more easily understand the rule. In addition, representatives from two of these groups said that the produce rule training available to businesses is helpful but limited in the absence of guidance. For example, some questions cannot be answered completely during trainings without additional information from guidance.

FDA officials told us they are aware of businesses’ concerns about the need for additional guidance. These officials said they are working to publish guidance on various topics related to the produce rule, as we have described elsewhere in this report. For example, officials said they planned to issue draft compliance and implementation guidance near the first compliance date of January 2018 for businesses producing commodities other than sprouts (see app. I).

FDA Officials Reported Facing Challenges Identifying Businesses Subject to the Produce Rule and Providing Consistent and Region-Specific Information in Their Responses

Through interviews with FDA officials, we identified two key challenges that the agency faces in evaluating and responding to business concerns about the produce rule: (1) identifying businesses subject to the produce rule; and (2) providing consistent, region-specific information to businesses in response to their questions and concerns. FDA officials told us the agency’s State Produce Implementation Cooperative Agreement Program plays a key role in addressing these challenges, as does the Produce Safety Network.

Identifying businesses subject to the produce rule: While the produce rule specifies the types of commodities subject to the rule, FDA does not have an inventory of farms producing those commodities and therefore does not know which businesses are subject to the rule. As we have previously reported, FDA’s existing business inventory data are drawn from information provided by businesses required to register with FDA. Farms, however, are not required to register. According to FDA officials, the lack of a registration requirement for farms limits the data the agency has to inform its implementation of the produce rule. For example, FDA officials we interviewed said that not having data regarding farms can make it difficult for FDA to connect businesses with the educational and technical assistance resources to help them comply with the rule. FDA officials told us the agency’s State Produce Implementation Cooperative Agreement Program should help address this challenge. The program, which provides resources to each participating state to support a variety of state activities related to implementing and enforcing the produce rule, includes funding for states to develop and maintain an inventory of businesses subject to the rule. According to the program’s funding announcement, inventory data will be used to determine education and outreach needs related to the produce rule as well as to plan compliance and enforcement activities. FDA officials told us that states participating in the program have started to build their inventories of farms. According to these officials, participating states plan to have their inventories completed before they begin inspections of produce businesses. For states not participating in the cooperative agreement program, FDA officials said the agency is developing farm inventories.

Providing consistent and region-specific responses to business questions and concerns: FDA officials told us that it can be a challenge to ensure that FDA and its state partners provide consistent responses to businesses’ questions that are also tailored to account for regional differences in growing conditions. For example, officials said that if a business in one part of the country receives information from one of FDA’s state partners, it can be a challenge to ensure that businesses in other parts of the country also receive the same information, whether from states or from FDA. At the same time, however, information provided to businesses may need to be tailored to account for regional differences in growing conditions. FDA officials told us that, to address this challenge, FDA’s Produce Safety Network staff are stationed around the United States and work closely with states participating in FDA’s Cooperative Agreement Program. According to these officials, this relationship provides a mechanism for states and FDA to share information about the produce rule and helps ensure that information provided by states is consistent with FDA’s interpretation of the rule. In addition, these officials stated that having network staff in different growing regions allows those staff members to develop expertise in the growing conditions and practices in their regions, which in turn enhances their ability to provide outreach and technical assistance that is specifically tailored to the unique needs of those regions. For example, according to FDA officials, if a state in the Cooperative Agreement Program receives a question about the rule from a business, Produce Safety Network staff work with the state and FDA subject matter experts to craft a response that the state can provide to the business and that is tailored to the growing practices and conditions in the region. This approach helps ensure that FDA and its state partners speak with one voice about the produce rule and that the information provided is sensitive to regional differences in the produce industry, officials said.

Agency Comments

We provided a draft of this product to HHS. HHS provided us with technical comments, which we incorporated as appropriate.

We are sending copies of this report to the appropriate congressional committees, the Secretary of Health and Human Services, and other interested parties. In addition, the report is available at no charge on the GAO website at http://www.gao.gov.

If you or your staff have any questions about this report, please contact me at (202) 512-3841 or morriss@gao.gov. Contact points for our Offices of Congressional Relations and Public Affairs may be found on the last page of this report. Key contributors to this report are listed in appendix II.

Appendix I: FDA Outreach and Guidance Related to the Produce Rule

Date(s)

Appendix II: GAO Contact and Staff Acknowledgments

GAO Contact

Staff Acknowledgments

In addition to the contact named above, Anne K. Johnson (Assistant Director), Ramsey Asaly, Tim Bober, Kevin Bray, Alexandra Edwards, Ellen Fried, Cindy Gilbert, Hayden Huang, Dan Royer, Kiki Theodoropoulos, and Rajneesh Verma made key contributions to this report.

Related GAO Products

High-Risk Series: Progress on Many High-Risk Areas, While Substantial Efforts Needed on Others. GAO-17-317. Washington, D.C.: February 15, 2017.

Food Safety: A National Strategy Is Needed to Address Fragmentation in Federal Oversight. GAO-17-74. Washington, D.C.: January 13, 2017.

Food Safety: FDA’s Efforts to Evaluate and Respond to Business Concerns Regarding the Produce Rule. GAO-17-98R. Washington, D.C.: November 28, 2016.

Food Safety: FDA Coordinating with Stakeholders on New Rules but Challenges Remain and Greater Tribal Consultation Needed. GAO-16- 425. Washington, D.C.: May 19, 2016.

Department of Health and Human Services, Food and Drug Administration: Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption. GAO-16-299R. Washington, D.C.: December 16, 2015.

Federal Food Safety Oversight: Additional Actions Needed to Improve Planning and Collaboration. GAO-15-180. Washington, D.C.: December 18, 2014.