Grape Growers and the FSMA Produce Rule

Every once in a while, I take a break from writing about livestock farms to think about meat's perfect sidekick -- wine. As of 2018, grape growers are required to adhere to the Food Safety Modernization Act ("FSMA") Produce Rule if they sell grapes to wineries. However, most grape growers will qualify for an exemption. The FDA published a helpful flow chart to determine whether your farm is covered by the produce rule. 

There are at least two exemptions which may apply to grape growers. Growers with less than $25,000 in annual sales are exempt from FMSA produce rule. "Annual sales" means average annual sales of any produce over a three-year period on a rolling period, adjusted for inflation since 2011. This means a grape grower must include their grapes and other produce they sell in their calculation of sales. 

Growers with more than $25,000 in annual sales are still likely exempt because the intended use of the grapes requires them to undergo processing which will adequately reduce pathogens. To qualify for this exemption, growers must disclose in documents accompanying the grapes that the grapes are not "processed to adequately reduce the presence of microorganisms of public health significance." Growers must also annually receive certification from their customer (the winery) that the winery (or another entity in the distribution chain) is following procedures to adequately reduce the presence of microorganisms of public health significance. Growers must establish and maintain records showing their compliance with these requirements.

All records should include the name and address of the grape grower's farm, the location of the growing area for those grapes (a specific lot, vineyard, or field), and an adequate description of the covered produce. The records must be legible, accurate, signed and dated. Records may be stored in hard copy or electronically and should be kept for two years.  

There is also a Produce Rule exemption for produce rarely consumed raw (think navy beans, potatoes, eggplant, sweet corn, water chestnuts, cranberries, etc.), but wine grapes and hops for beer are not currently listed by name in that exemption. There are groups which have petitioned to have wine grapes and hops added to the list, since they are rarely (if ever) consumed raw. The FDA recently responded to that request, asking for additional information regarding consumer consumption patters and indicating it was considering streamlining the records requirement for commercially processed produce. 

The Produce Rule is being implemented on a rolling basis, depending on the size of the business. Large businesses (more than $500,000 annual produce sales) were required to comply by January 26, 2018. Small businesses (between $250,000 and $500,000 annual produce sales) are required to comply by January 28, 2019). Very small businesses (between $25,000 and $250,000 average annual produce sales) must comply by January 27, 2020. 

Contact your attorney if you are a grape grower with questions about the Food Safety Modernization Act.