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FDA on Brewers' 'Spent Grain': Clarification or Climb-Down?

The Food and Drug Administration recently issued a statement clarifying its position on proposed federal rule that had concerned brewers and farmers in Maine and across the country. However, whether that statement is a "clarification" or a "climb-down" depends on who you talk to. The issue revolves around "spent grains," a by-product of the brewing process that many farmers - including some in Maine - rely on. Tom Porter has more.

For centuries these grains have often been given or sold cheaply to farmers to use as cattle feed. But a month or so ago, farmers and brewers complained that a new rule on animal food safety being proposed by the feds would make this mutually-beneficial practice too costly, and threaten to put many small breweries and farmers out of business.

Members of Maine's congressional delegation also spoke up in support of the brewing industry. According to some food safety experts however, those complaints are well wide of the mark.

"The claims from the brewers are simply not accurate about what the proposed rule would have required, and that's become clear in the statements that the FDA has recently issued," says Michael Patoka, a policy analyst with the Center for Progressive Reform in Washington D.C.

Patoka specializes in - among other things - federal food safety issues. Claims that brewers would have to dry out the spent grain and package it as animal feed under the proposal were unfounded, he says - as was the claim that the grains would have to be disposed of in a landfill.

As written, Patoka says, the FDA proposal - which is part of the Food Safety Modernization Act - was considerably less burdensome than brewers were claiming.

"What the proposed rule does is it sets up a preventive framework for facilities to analyze the hazards of producing some animal food product that they have, and then write procedures that would prevent or minimize those hazards, and ensure those procedures are implemented," he says.

The advantage of this kind of system, he says, is that it's flexible and risk-based. "So facilities only need to implement whatever protocols are necessary to prevent the hazards that are reasonably likely to occur in those facilities," Patoka says.

Late last month - after the public comment period had ended - the FDA issued a clarification, saying it was not the agency's intention to eliminate or disrupt the practice of brewers providing cheap cattle feed to farmers by making them comply with what it describes as "redundant animal feed standards."

The agency is expected to release a new revised proposal in a couple of months time. Patoka says this clarification was, in part, necessitated by misconceptions over the rule among farmers and brewers - although he does admit, as indeed does the FDA, that the language in the rule is open to misperception and could use some clarification.

Others see it a little differently. Paul Gatza is director of the Brewers Association, a national organization. "It's good that a lot of brewers spoke up, and it's good that the FDA has heard them," he says.

Gatza sees the FDA statement as the agency responding to concerns raised during the public comment period - a development that some headlines have characterized as the feds backing down. "Is it backing down or is it just a clarification? I don't think it matters," he says. "I think what matters is that the end result is that brewers will still be able to get their grain to farmers."

The Maine Brewers' Guild also issued a statement through its executive director, Sean Sullivan, saying his constituents are "relieved to hear that the FDA is scaling back its proposed changes to the Food Safety Modernization Act."

Willy Ritch is spokesman for Democratic Congresswoman Chellie Pingree, one of the three Maine delegation members who joined the debate on behalf of the brewers and farmers. He says the fact that the FDA is rewriting the proposed rule on this issue speaks volumes about the original proposal.

"Maybe the FDA feels that there was some sort of exaggeration, but not to the extent that they don't think they need to come up with a new version of this," Ritch says.

Ritch also points out that the head of the FDA herself - Margaret Hamburg - admitted the spent grain issue was a problem when she was questioned by Pingree earlier this year.

Maine's two U.S. senators - independent Angus King and Republican Susan Collins - also supported the brewers on this debate. They issued a joint statement saying the FDA's proposed rule is confusing as written, and they look forward to reviewing the final rule, which they hope will be updated to reflect the recent clarifications.

A spokesperson for the FDA decline to go on tape for this story.