After Significant Push, Schumer Receives Personal Commitment from Head Of FDA That They Will Reverse Course on “Spent Grain” Rule

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Rule would have hurt New York’s craft brewers and family farmers.

Washington, DC - April 24, 2014 - U.S. Senator Charles E. Schumer today announced that, during a personal phone call with federal Food and Drug Administration (FDA) Commissioner Margaret Hamburg, he received a commitment from the commissioner that the FDA would reverse course on a proposed rule regulating “spent grain” – a rule that would be harmful to Upstate New York’s burgeoning craft brew industry and its farmers. The FDA was attempting to regulate “spent grain” – a natural byproduct of the brewing process – in a way that could prevent brewers from selling or donating it directly to farmers, who use it to feed animals, something they have been doing for centuries.
 
The FDA proposed this new rule as part of its continued implementation of the Food Safety Modernization Act, and, if enacted, it could have forced brewers to trash the grains. Commissioner Hamburg made it clear in her call with Schumer that the FDA now realized the rule had very negative unintended consequences for both brewers and farmers, and further that the FDA is committed to revising the rule in a way that does not prevent the selling or donating of “spent grain.”
 
Schumer visited multiple breweries around the state, including Rohrbach’s Brewing Company in Rochester, F.X. Matt Brewing Company in Utica and Upstate Brewing Company in Elmira. Joined by both brewers and farmers, Schumer said that there is no compelling evidence that the spent grains are affecting health or safety, and there is no reason to regulate them in such a restrictive manner.
 
“I made clear to Commissioner Hamburg when we spoke that this ridiculous rule would have been extremely damaging for Upstate New York, harming both our burgeoning craft brew industry and farmers alike,” said Schumer. “I am glad she realized that the proposed rule is misguided and that she is committed to protecting this win-win transaction. I will continue to watch the FDA like a hawk as they revise this rule over the months ahead.”
 
Spent Grain, or “wet grains,” a natural byproduct of the brewing process, can be sold straight from breweries to farms at a very low cost, and are often donated from brewer to farmer. Schumer explained that these grains are perfect for use as an animal feed because the ‘wet’ grains hydrate animals as they eat. What’s more, spent grains are also a good source of fiber and protein. It is estimated that almost 90 percent of brewers dispose of spent grain in the form of animal feed.
 
If the proposed rulemaking would have moved forward, the new regulations would have forced brewers to meet a series of requirements – including changing the way they store and monitor the spent grain – before selling or donating their spent grains to farmers, which would have driven up costs for both brewers and farmers, with no additional safety benefit. Brewers would have had to go through a costly hazard analysis, in which they would have had to identify potential food safety hazards, estimate how likely they are to occur, predict how severe the effects would be, identify and implement preventive controls, monitor spent grains for any hazards, and develop a written recall plan. Schumer said such a process is unnecessary and burdensome given the lack of any documented health risk to humans or animals.
 
For many brewers, the cost of meeting these requirements would have been higher than simply tossing the grain. The brewing industry estimates that compliance with the proposed rule could cost brewers over $50 million a year and could be a significant burden on small brewers who produce fewer than 1,000 barrels of beer annually. Schumer noted this could even drive up costs, because eliminating this sort of collaboration would make production processes for both farmers and breweries less efficient.
 
A copy of Senator Schumer’s original letter to FDA Commissioner Margaret Hamburg is below:
 
Dear Commissioner Hamburg:
 
I would like to commend you on your efforts to implement the Food Safety Modernization Act (FSMA), as it is of great importance to our nation’s food supply. However, I would like to bring to your attention the potential negative impacts on the craft brewing and dairy that may result from one of the proposed rules related to implementation of the law for animal feed (FDA-2011-N-0922). As you move forward in the rule-making process, I urge you to take into consideration how these rules may negatively impact the availability of spent grains for sale or donation from craft brewing operations to farms for animal feed.
 
As you know, farmers and ranchers across New York State and the country rely on spent grains for feed. It is not only a good source of fiber and protein, but also offers an excellent source of hydration for animals. It is estimated that almost 90 percent of brewers dispose of spent grain in the form of animal feed. The product is normally shipped to local farmers around brewing operations, which offers a sustainable end use for this naturally occurring byproduct of beer production. Using spent grains as animal feed also avoids having them sent to a landfill. The brewing industry estimates that compliance with the proposed rule could cost over $50 million a year and could be a significant burden on small brewers who produce fewer than 1,000 barrels of beer annually. I hope you will take into consideration these negative impacts on and revise the proposed rule to uphold strong and meaningful food safety standards without placing unnecessary burdens on both brewers and farmers. 
 
Oversight of brewers is under the jurisdiction of the Alcohol Tobacco Tax and Trade Bureau (TTB) of the Department of Treasury. The FSMA wisely deferred oversight of alcohol to the TTB and I agree with the craft brewers and dairy farmers this rule may duplicate TTB’s efforts. Again, I commend your efforts to implement many of the important provisions and programs in the Food Safety Modernization Act (FSMA), but urge you to take special consideration concerning the important relationship the brewers and farmers have maintained for hundreds of years to dispose of spent grains in a local and sustainable manner.  Thank you for your attention to this important matter.
 
Sincerely, 
Charles E. Schumer
U.S. Senator
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