In 2011, Congress approved the FDA Food Safety Modernization Act in response to several deadly outbreaks of foodborne illnesses. These outbreaks convinced legislators and food industry groups that the then-existing food safety system in the United States was outdated and ill-suited to prevent future outbreaks. The Act is considered to encompass the most extensive food safety regulations in history. Specifically, it gives the FDA the authority to regulate the production of fresh fruit and vegetables on all farms except for meat, poultry and egg producers, and farms with less than $500,000 in annual sales.

The Act will gradually take effect through 2020, and states play a key role in enforcement, namely with water quality, sanitation and hygiene standards. If states choose to take part in the enforcement process, they will be required to conduct on-site inspections and laboratory testing of water used for irrigation and soil used for planting. Nearly all states that participate will have to develop new produce safety programs to ensure compliance by local farms.

It is expected that most states will participate in enforcement of the law by adopting laws or regulations with the understanding that the federal government will provide the necessary funding. Notably, Congress has set aside $19 million in 2016 to assist states in determining what must be done in order to enforce the law. However, states such as Montana, North Dakota and Wyoming have very few produce farms and will likely opt out of the law, leaving the federal government to conduct the local inspections and be responsible for enforcement of the law.

This article was written by Lauren Potocsky, a summer associate at Varnum in 2016. Lauren is currently a student at Wayne State University Law School.