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February 3, 2017

Senate OKs warrantless inspections of Va. farms

“Of the 2,300 produce farmers in Virginia, only 400 would be affected by this legislation,” Virginia Agribusiness Council President Katie Frazier said.
The bill doesn’t say when the Department of Agriculture can come onto their property. They’d have rights to come onto their farm daily if they wanted. There’s no due process for the farmers. There’s no protection
— Sen. Richard Black (R-Leesburg)
By Jesse Adcock
Capital News Service

RICHMOND – The Senate has approved a bill that would allow state inspectors to carry out warrantless inspections of hundreds of Virginia produce farms to ensure compliance with federal regulations.

“It’s one of those bills you don’t like, but someone’s got to carry it,” said the legislation’s sponsor, Sen. Richard Stuart, R-Westmoreland County. He said that if the Virginia Department of Agriculture and Consumer Services doesn’t conduct the inspections, “then the federal government will come in and do it for us.”

But some farming representatives argued that the inspections would violate their constitutional rights.

“If the government has free access to your property, that’s in violation of the Fourth Amendment,” Richard Altice of the Virginia Independent Consumers and Farmers Association told legislators. “You are mandated to kill this bill.”

Despite such protests, the Senate voted, 25-15, Wednesday to pass SB 1195, which would give state inspectors free access at all reasonable hours to any farm subject to regulation under the federal Food Safety Modernization Act. The inspectors could seize any produce they suspect may be in violation of federal regulations or state law.

Any farmer found out of compliance with the regulations would be subject to a civil fine of up to $1,000.

In September, the U.S. Drug and Food Administration awarded Virginia funding to implement the Produce Safety Rule, part of the Food Safety Modernization Act signed into law in 2011 by President Barack Obama.

Under the rule, states have the choice to enforce the regulations themselves or have the FDA do it.

“It’s a question of whether we do the inspections or the FDA,” said Sandra Adams, commissioner of the Virginia Department of Agriculture and Consumer Services.

Ms. Adams said there would be no inspections during the first two years of the state law’s implementation. Instead, VDACS would focus on education and outreach to the farmers affected by the federal rules to help them come into compliance.

“We know we are going to have to comply with this law,” said Kevin Kirby, a fourth-generation farmer from Mechanicsville. “We’d much prefer VDACS; when we get involved with the FDA, all we get is a hammer thrown at us.”

Katie Frazier, president of the Virginia Agribusiness Council, criticized the FDA’s enforcement procedures. She said the FDA has put a stop-sell order on a suspect farmer’s produce, only to lift it days later, leaving what was good produce rotted and unfit for sale.

The federal rule sets standards for sanitation, processing and transportation of produce. The standards do not apply to farmers who grow only produce that is rarely consumed raw, such as asparagus, black beans and potatoes.

Moreover, farmers who grow produce exclusively for their own consumption, or have made less than $25,000 from produce sales during the preceding three years, are exempt from the federal rule.

“Of the 2,300 produce farmers in Virginia, only 400 would be affected by this legislation,” Ms. Frazier said.

FDA officials say the federal regulations will help prevent people from getting sick from eating produce.

“The Produce Safety Rule, along with other FSMA-mandated rules to regulate food production, importation and transportation, will better protect consumers from foodborne illness,” the FDA’s website states.

On the Senate floor Wednesday, Republican Sen. Richard Black of Leesburg opposed Stuart’s state inspections bill. He noted that California and other states had opted out of instituting their own inspection programs.

“The bill doesn’t say when the Department of Agriculture can come onto their (farmers’) property,” Mr. Black said. “They’d have rights to come onto their farm daily if they wanted. There’s no due process for the farmers. There’s no protection.”

The bill was recommended for approval by the Senate Committee on Agriculture, Conservation and Natural Resources.

During a committee hearing, Mr. Altice said the state inspections law may be unnecessary because the Trump administration likely will withdraw the Produce Safety Rule along with other federal regulations. During his successful presidential campaign, Donald Trump pledged to roll back regulations by what he called the “FDA food police.”

According to Mr. Stuart’s bill, if federal funds to enforce federal regulations are cut, the state inspections program would be, too.

“If the current administration decides to eliminate the law, this program will cease as well,” he said.
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