The FDA claimed kale “is only eaten cooked. What restaurants do they eat at? Not the same ones I do,” said Jean Halloran, director of food policy initiatives for Consumers Union, publisher of Consumer Reports. “I am still working on what the criteria should be” for regulating commodities, “but Google returned me several million items for raw-kale recipes.”
The FDA was right to include fresh citrus, in part because lemons are so often cut into slices for beverages, she said in an email.
Some other consumer advocates are urging the FDA not to write the list of commodities into the rule itself, because the lengthy process of rule-making will make it harder to add items to the regulations later. “Instead, any list they develop should be included in accompanying documentation or guidance documents,” said Chris Waldrop, director of the Food Policy Institute at the Consumer Federation of America.
The citrus industry’s concern isn’t necessarily that the fruits were included in the regulations but that the industry fears it will be subject to requirements it believes are unnecessary.
“From a practical standpoint, do you want to be excluded and have everybody point fingers at you?” Nelsen asks rhetorically. “Should we be required to document what we do from a food safety perspective? Yeah, we’ll do that. It’s a positive story.”
The produce industry thought the proposed rule’s requirements would distinguish between higher- and lower-risk commodities. Instead, the agency’s proposed approach essentially treats all produce the same, putting the onus on growers to present data proving that their crops don’t pose a significant risk and merit being exempt from the new requirements, said Edward Ruckert, a lawyer with McDermott Will and Emery who advises the food industry.
Fruit and vegetable producers will have to explain to the FDA “why the regulations shouldn’t apply” to them, Ruckert said. “The first answer, that we haven’t had an issue, I’m not sure that FDA is going to be that receptive to. . . . They knew that going in. You’re not giving them any new information.”
The citrus industry has commissioned research that could show there is minimal contamination on the fruit because of the way it’s grown and the various prevention measures that packers such as Bee Sweet undertake. In addition to the chlorine bath, the fruit is also scrubbed and pressure-washed, and then inspected to ensure there aren’t breaks in the skin.
“There has not been a lot of research done on [citrus] because they don’t have an outbreak to contend with that has gotten the industry’s attention,” said Trevor Suslow, a University of California at Davis plant pathologist working on the project. As part of the research, oranges will be deliberately contaminated with bacteria so that scientists can determine whether they would still be present after the fruit goes through the packing process.
Other fruits that are grown above the ground, including table grapes, also have a good safety record, he said. Having a smooth surface on the fruit also makes a difference, even for a crop grown near the ground. For instance, honeydew melons have a good record, unlike cantaloupes, where the rough surface can and does harbor bacteria, Suslow said.