Watson Spence LLP has been a leading legal advisor to the agri-business industry for more than fifty years. Thus, it is fitting that Watson Spence has taken a lead role in developing comments to be submitted to the U. S. Food and Drug Administration ("FDA") regarding proposed regulations implementing the federal Food Safety Modernization Act ("FSMA").

On November 8, 2013, in conjunction with Watson Spence the American Peanut Shellers Association ("APSA") submitted comments to the FDA suggesting that the exemption codified in proposed 21 C.F.R. § 117.5(j) should apply to peanut buying points. The position taken by APSA is that peanuts stored at the buying points are analogous to grains that have been exempted under other sections of the regulations and therefore, present a low risk for food safety concerns.  As such, Watson Spence and APSA have suggested that peanut buying points should be exempted from the rigorous requirements of the FSMA's Hazard Analysis and Risk-based Preventive Controls ("HARPC"). 

There are several specific reasons cited by Watson Spence and APSA to FDA for the exemption requested:

• Peanuts are similar scientifically to whole grains and should therefore not be lumped into the "Fruits and Vegetable" category.
• Peanut buying points perform minimal activities incidental to storage. The activities performed are perfectly analogous to those performed by traditional grain elevators and silos, two types of facilities that FDA expressly references as examples of establishments that would be covered by the exemption.
• No contamination issues, outbreaks, or health hazards have been linked or traced to peanut buying points. 

Therefore the request to the FDA was twofold:

(1) Clarify the exemption as it applies to the storage of peanuts at buying points; and

(2) Interpret the term "storage" with sufficient flexibility to include minimal activities incidental to storage. Both actions would be fully consistent with the food safety rationale and would result in the creation of an exemption that benefits the food industry with no detriment to public health.  

Watson Spence and APSA would like to thank the National Peanut Buying Point Association and the Virginia-Carolina Peanut Association Incorporated for the supportive comments they submitted in support of this position.

If you are interested in finding out more about proposed regulations, FSMA, or have any questions about other food safety issues please contact Bo Plowden at 229.436.1559, [email protected], or visit our website at www.watsonspence.com.

APSA Comments on FSMA HARPC Proposed Rule.