When the Food and Drug Administration (FSA) proposed a rule that would potentially limit or eliminate the ability of various industries to sell their waste products through the channel of animal feed, there were 2,500 comments made to the agency.
John Petty, administrator of the Division of Agricultural Resources Management at the state Department of Agriculture, Trade and Consumer Protection, said that of those 2,500 official comments to the agency, 1,500 of them dealt with spent brewers grains.
As a result of that frontal assault on the rule by the brewing industry, spent grains from the brewing process are now exempt from the rule, he explained to DATCP board members at a recent meeting in Friesland.
Although the process for making ethanol is nearly the same as that for making beer — at one point in the ethanol production process the material is called "beer" —the leftover grain from ethanol plants is not exempt.
Sometime this summer the FDA will issue another revision to the rule and there will be another 60-day comment period after that.
Department Secretary Ben Brancel said that the huge beer makers in the country partnered together to focus on their issue and got it changed, but this is not a "brewers' issue," Brancel said.
There are many aspects of food production — citrus, potato processing, ethanol and many others — that end up with byproduct that is often fed to cattle and other livestock.
Several U.S. Senators, including former Agriculture Secretary Mike Johanns, have written to the FDA to make the point that food processing byproducts should not be included in this rules process.
Brancel said he didn't like seeing one segment of the food industry going off on its own and leaving the rest of the food processing industry behind. "It's a very real concern."
Petty and Brancel said there are still a number of unanswered questions about when food becomes "adulterated" and whether or not that means it cannot be used for livestock feed.
Brancel said a shipment of crackers may have reached past its freshness date. "Does that make it adulterated? There are still a lot of answers being sought."
Petty, who is working on a national task force related to these rules, said one of the new wrinkles in the rules is that a record-keeping violation would not constitute adulteration of the product.
"That's a very big concern to the states." The task force meets twice a week on a conference call to discuss the rules development.
There are questions about food definitions and whether or not they would become "adulterated", when they are not handled in certain ways.
The word "unwholesome" has also been added to the definition of "adulterated."
Steve Ingham, administrator of DATCP's Food Safety Division, said to his knowledge there is no provision made in any of the FSMA rules that would include financial impacts to those being regulated.
There is also concern that if the FDA spells out every rule in black and white, it may eliminate the ability of local inspectors to use discretion, Ingham added.
Petty said the whole rewrite of food safety rules is huge. "It's a philosophical point of do you regulate for the anomaly?"
Because of a lawsuit that pushed the FDA on its implementation of FSMA rules, these rules must be completed by August 30, 2015, Brancel said.