Grapegrowing and FSMA Compliance

by Dickenson Peatman & Fogarty P.C.
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As of 2018, winegrape growers are now required to adhere to the burdensome requirements of the Food Safety Modernization Act (FSMA) Produce Safety Rule when selling winegrapes to wineries for processing.  However, most winegrape growers will qualify for an exemption from the FSMA rule (see FDA flow chart for rule and exemption applicability).

For winegrape growers with more than $25,000 of annual produce sales, the applicable exemption is based on the intended commercial processing- winemaking- that will adequately reduce pathogens.  Growers who produce less than $25,000 in annual produce sales are not covered by the Produce Safety Rule.  Growers may only benefit from the exemption if they adhere to the following notice, assurance and recordkeeping requirements upon delivery of grapes and after winery processing (21 CFR 112.2(b)(2)-(6)).

Beginning in 2018, growers of winegrapes must:

  1. Disclose in documents accompanying the winegrapes that the grapes are “not processed to adequately reduce the presence of microorganisms of public health significance;” and
  2. Annually obtain written assurance from the grape processor that the processor has established and is following procedures that adequately reduce the presence of microorganisms of public health significance.

All records required to maintain compliance with the exemption, as identified above, must also include:

  1. The name and location of the vineyard from which the grapes were harvested;
  2. An adequate description of the covered produce, such as the specific variety of the grapes; and
  3. The location of the growing area within the vineyard (i.e. the specific block where the grapes were grown).

Growers utilizing the commercial processing exemption will be required to retain the notice and assurance records above for two years for all loads delivered.

Although certain produce is broadly excluded from the applicability of the FSMA, including, but not limited to, asparagus, various bean varieties, sweet corn, eggplant, ginger, potatoes and cranberries, winegrapes and hops are not exempted by statute even though they are almost certainly consumed without processing less frequently than the ginger we put in our green juice.  California Association of Winegrape Growers (CAWG) has requested the FDA add winegrapes to the exempt “produce rarely consumed raw” list, in which case the notices and recordkeeping described above would no longer apply.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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