The U.S. Food and Drug Administration (FDA) has announced that it will provide flexibility regarding eligibility criteria for the qualified exemption under the Produce Safety Rule during the COVID-19 public health emergency.
Under the FDA Food Safety Modernization Act (FSMA) Produce Safety Rule, farms are eligible for a qualified exemption and associated modified requirements if they meet the following criteria:
Because of COVID-19, state and local governments across the United States have instituted public health orders that have resulted in many restaurants and retail food establishments either closing or significantly limiting their operations, leaving many farmers without their usual buyers. This new guidance is intended to allow affected farmers to shift their sales away from qualified end users while still being considered eligible for the qualified exemption. Specifically, under the temporary policy announced in the guidance, farms that are currently eligible for the qualified exemption and associated modified requirements will still be considered eligible, even if they shift sales away from qualified end users, so long as they continue to meet the requirement that their average food sales during the previous three years total less than $500,000 (adjusted for inflation).
This temporary policy is intended to remain in effect only for the duration of the public health emergency, after which the FDA intends to issue additional guidance.
Qualified exempt farms must comply with modified requirements under the Produce Safety Rule. This includes establishing and keeping certain records and prominently displaying the name and business address on food packaging or at the point of sale. Farms are responsible for ensuring that the food they produce is not adulterated under the Federal Food, Drug, and Cosmetic Act (FD&C Act), and they should use good agricultural practices to ensure the safety of their produce.