WASHINGTON — If you think government can just never get it right, the recent “spent grain” debacle was the perfect episode to fit the story. Too perfect, it turns out.

Beer breweries have long sold or given their spent grain byproduct to farmers, who use it as animal feed. It’s a mutually beneficial arrangement.

But news surfaced this spring that the Food and Drug Administration had supposedly proposed a regulation imposing elaborate food safety requirements on breweries providing spent grain – even requiring them to dry and package the grain, which would be prohibitively expensive.

The story got particular attention in Maine and other states with many small breweries, and brewers were understandably concerned. It was at this point that a closer examination of the facts would have been useful.

Maine’s elected officials in Washington instead jumped in to fan the flames, trying to outdo each other in standing up against a seemingly out-of-touch government agency.

It was a bipartisan affair: Rep. Chellie Pingree, D-1st District, blasted the FDA commissioner in a hearing and wrote a bill to undo the regulation, while Sens. Susan Collins, a Republican, and Angus King, an independent, signed a letter saying that the proposed rule “would effectively end this centuries-old practice” of transferring spent grain.


A look at the proposed regulation itself reveals a rather different picture.

Our food safety system has always been too focused on reacting to outbreaks after they happen. The Food Safety Modernization Act of 2010 charged the FDA with taking a preventive approach.

So, as one tiny part of a comprehensive rule on the safety of animal food, the FDA wanted to make sure breweries were taking basic, common-sense steps to ensure their spent grain couldn’t somehow get contaminated and cause harm to animals (and potentially humans as well). Because humans drink their product, breweries are already required to follow “good manufacturing practices” to prevent contamination along the production line.

Under the FDA’s new proposal, breweries sending grains to farmers would also need to identify in a written safety plan “reasonably likely” hazards that could contaminate spent grains and take steps to minimize or prevent those hazards – for instance, making sure the grain isn’t inadvertently mixed with trash, and isn’t being stored in containers that previously held dangerous chemicals. Most breweries were probably already doing those things, but the FDA wanted to make sure all were doing so.

Unfortunately, all it took was one misinterpretation of the proposed requirements, and the story took off. Suddenly, clueless bureaucrats were requiring breweries to dry and package their spent grain before handing it off to livestock farms. In fact, no such provision or anything like it actually existed.

The FDA belatedly defused the situation by issuing a statement saying that the requirements will be minimal and promising to clarify the matter in the next draft of the rule. As the Washington Post’s fact checker wrote, “As far as we can tell, little of substance has changed on the issue, with the FDA simply clarifying that the concerns of brewers were misplaced.”


There’s a bigger lesson here. The issue took off because it fit a well-worn narrative of bureaucratic pinheadedness.

The real regulatory problem we face is that government is working far too slowly to protect the public from well-known hazards, its agencies hamstrung by grossly inadequate resources and forced into inaction by political pressures. Case in point: FDA is now more than two years late issuing most of the rules to implement the new food safety law, leaving the public vulnerable to unnecessary risks of food-borne illness.

Members of Congress should press the Obama administration to get these and other health and safety rules done. Instead, Sen. Collins has sponsored a bill that would add dozens of new procedural hurdles for agencies, which would all but end updated health, safety and environmental rules. Sen. King has sponsored a bill that would have politicians appoint a commission charged with identifying rules to eliminate – with no concern for outdated rules that need to be strengthened.

In the last half-century, government regulation has made our air cleaner, our factories less deadly and our cars much safer. Agencies are now working to tackle new threats, from climate change to toys and food imported from China. We should hold their feet to the fire, not because they are some rogue “fourth branch of government” attacking breweries but because we are counting on them to do their job.

— Special to the Telegram

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