For Food Safety Education Awareness month, we look at ways the liability insurance industry is making its mark on fresh produce food safety. We know regulators can influence farms to adopt specific practices. Now, we’re also seeing insurance companies mandate specific practices. The outcomes can be good or bad, and farmers need the tools to advocate for themselves with their insurers.
Soil, water, and people are the three most essential ingredients to making a farm run and are also three of the strongest vectors for spreading pathogenic bacteria. We can’t eliminate the risks, but we can mitigate them.
However, total faith in the “best practices” developed by the big food safety regulators—the FDA and the Harmonized GAP initiative—might be misplaced. The blame for this doesn’t fall wholly on industry leaders but, rather, the difficulty of finding the true root causes of foodborne illness outbreaks.
Scientific knowledge is limited because the natural rhythms of growing vegetables hamper investigations into foodborne illnesses from fresh produce. By the time the FDA can wade through medical data from sick individuals and pinpoint a potential source, the field in which the offending vegetable was grown has likely been cleared and replanted.
Investigators are forced to rely on the farm’s records demonstrating a food safety culture and adherence to the accepted sanitation standards. Without consistent successful root cause analyses, the FDA and other scientists are doing their best to make correlations as to what is causing foodborne illnesses.
As a result, mitigation strategies boil down to identifying where pathogens exist on the farm, doing as much as possible to lower the pathogens’ populations, and avoiding cross-contamination. These goals are met through sanitizing surfaces and produce wash water, segregated animal-based soil amendments, and enforcing general health and hygiene rules for staff. These types of best practices do reduce pathogen populations, but scientists have yet to prove that they lead to a decrease in the number of people getting sick from fresh produce.
When people’s health is on the line, good public policy suggests we act with the best knowledge we have. And this is what the FDA and the Harmonized GAP initiative have done to develop their standards, and many farms are already following these rules.
Nevertheless, there have been reports of the FDA’s failings. Farming is a new area of expertise for an agency traditionally focused on pharmaceuticals. That it took time for water standards to be developed isn’t surprising. The FDA, rightfully, has a twin goal of implementing risk-reducing practices and managing the burdens put on farmers.
Not everyone sees it this way. Some scholars are eager for new approaches to bolster on-farm food safety practices. Timothy D. Lytton argues in a new law review article that general liability insurance companies should begin or increase food safety reviews of farms as a prerequisite to providing insurance. He cites the government’s lack of resources to do adequate inspections and the conflict of interest that may result when private food safety auditors are paid by the farms they inspect. Insurance companies have economic incentives to lower risks on farms and the means to manage and encourage compliance from their farm customers.
There isn’t a lot of actuarial data for insurance underwriters to use for their decisions because few farmers have been sued for food safety incidents. Their work is more “impressionistic than data-driven.” Combined with the lack of definitive science-backed food safety practices, this intuitive process could unfairly increase insurance companies’ power over farmers.
In fact, we at Farm Commons received a question on the Commons Community a few weeks ago from an ag professional about an insurance company requiring a farmer to institute ATP testing to receive coverage. This practice, designed to verify sanitation programs, is standard in food facilities but is not common in a farm setting. Neither the Produce Safety Rule nor the Harmonized GAP Standard requires ATP testing.
If private insurance companies join in regulating food safety on farms, farmers must be prepared to advocate for themselves. If an insurance company underwriter is miscalculating the risk on a farm or asking for food safety practices that go against or beyond the established best practices, farmers need to be prepared to engage in a conversation with their underwriter about reasonable compromises.
We are interested in hearing from farmers and ag professionals about similar experiences. Has your insurance company requested a review of your food safety plan before extending coverage? Has your insurance company required specific food safety practices that aren’t included in your food safety plan? Email your stories to our staff attorney, Chloe, at firstname.lastname@example.org.
We have an extensive pathway on insurance and liability that points to our best resources on the subject. If you are preparing to talk to your insurance company, reviewing our resource on food safety liability insurance might be helpful.