Letter to Director Daniels of the Ohio Department of Agriculture

Here is a letter I sent to the new Director Daniels of the Ohio Department of Agriculture; 

Dear Director Daniels,

I'm not sure if you are aware of this issue of regulation of wineries by the Food Safety Division or not? There never has been an issue of a food safety of wine in Ohio and the regulation pretty much is a much enhanced duplication of liquor code regulation. The administration did run on eliminating duplicate and unnecessary regulation and this definitely fits in that category more than any other in the state. We have had meetings with your predecessor but he moved and then we had a pretty much pointless meeting before you were appointed. I have sent previous communications on this and the following is a revised version of that:

The food safety people kind of work on a food basis where you have pretty much what goes in to the process comes out in the product. Wine and beer are different. What you have are the original base product that is transformed by yeast in to something totally different. Now what you put in and process with can have an effect on the end product, but what goes in isn't what comes out. That is where the whole error of their thought lies. Wine is kind of like having a whole bunch of little critters that aren't quite animal nor plant, and we are kind of farming these guys. The difference from farming is you aren't harvesting the creatures you are feeding. You are basically only interested in their growth medium and their waste products. Many of which are either settled, fined, or filtered out in a fashion that is more thorough than any process in a food production setting. After the fermentation process you do not have anything that resembles what went in, that includes most of the chemical compounds. So basing an inspection process of any kind on the conditions that are wanted for food processing is totally misplaced. Most of the substances we add before fermentation do not end up in the end product, except possibly some sort of acid adjustments. Any kind of additions that do, for the most part have to have some sort of formula approved by the Federal TTB. To me with this in mind these sanitarians with the way they are trained would be the last people that I would think of to put in to inspect a winery. Even the "good manufacturing practices" are not really adequate as wine(or beer) is different from any food manufacturing or traditional manufacturing. What we do is try to guide the fermentation in a manner that we come out with the type of product we are looking for. Most additions of anything like yeast, enzymes, fining agents for structure change and clarification, malolactic bacteria and so on do not end up in the final product. Alcoholic beverages are not really food and they are not really drugs. People keep trying to classify them as one or the other even though they have some aspects similar to both. Alcohol is not a drug as it has caloric content. But it is not a carbohydrate, not a fat, and not a protein. So it is not like any food either. It belongs in its own classification. I think they had it right after prohibition, maybe too severe in a lot of respects, but it needs its own agencies for any oversight needed. Most issues in the past have been of a social negative (there are positive too) context and the agencies involved have developed over a long time how to oversee that. A big mistake was on the caffeine added to alco-pops that recently was finally addressed. It took a long time because of the meddling of the federal FDA instead of letting the federal Alcohol and Tobacco Tax and Trade Bureau handle these things as in history in which they would have moved much faster. Classifying it as "not" GRAS was a ridiculous way to approach it. It is pretty much a social issue of misuse of an alcohol product. Looking at all the lack of anything definite on regulation by the ODA in the Ohio codes as well as some conflicts in the codes with the liquor code this needs to be put squarely where it really belongs in the hands of the division of liquor control.

I would urge that you support Sen. Tim Schaffer's Ohio Senate Bill 91. Following are some of the reasons for support of it:

1) Human pathogens are killed by wine, the combination of the low pH and alcohol make it suitable to being a palatable disinfectant as described by Prof. Mark Daeschel of Oregon State University. In other words there is never a human pathogen possibility in wine, and I suspect beer also. 

2)Liquor law has much more of a limited list of things that can be added or used in production than any Food regulations. It is my contention the overreach by FDA has pretty much caused the controversy over caffeine addtition in certain alco pops. The TTB I suspect would have "by itself" have settled it long ago.

3)The new US Food Safety Modernization Act passed in January seems to dilineate the difference of alcoholic beverages from other food and recognizes the authority for the regulation of them by the TTB and limits the involvement of the FDA to very limited episodes of extremely remote circumstances. 

4)Other states(eg. California, Washington, and Oregon and others) exempt all alcohol beverage or winery activity from food safety legislation. In research, I find many states that mention following those states food safety or good manufacturing practices, but have no licensing inspections or enforcement of these when it come to wineries. etc. Pretty much ignored overall. 

5)Ohio Title 43 (liquor law) has sanitation code and Title 9 and 37 codes have aspects that I see as harmful to quality of wine and freedom of producing wines in a manner that has proven to be safe. Title 9 and 37 are not a good fit for regulation of alcohol producers and distributors. 

6)The Food Safety division say they will only enforce those parts that apply. But Title 9 and 37 have no definitions for inspection of alcohol based beverage businesses so they are pretty much wide open for regulatiing as they want. Who is to know what they will come up with in the future, they started out hardnosed and then softened when we pushed back some. If they get their way they will likely go back to unreasonable and unrational demands. They pretty much are unqualified and try to treat wine grapes as table grapes, etc. We already have that issue with EPA regulations and spraying regulations. Not many babies are drinking wine and it doesn't make it in after processing like in actual food. 

7)With no set standards and each winery being inspected on a case by case basis, as admitted by the food safety division, it will lead to discrepancies and discrimination. 

8)This excess of regulation on Ohio wineries is a discrimination against our own businesses in favor of wines being imported in to the state from wineries, etc. not subject to the regulations on a similar basis in their own states.

9)This food safety legislation will most likely stunt and stop start-up wineries in the long run, as it will increase costs of start up and compliance issues. Exactly opposite of what we are trying to do in other programs for no good reason.

10)Will eliminate or deter undercapitalized startup wineries and many of them in more depressed areas of the state, often in facilities perfectly safe and fine for making wine, but maybe not OK according to regulations in Title 9 and 37 for general food production.

11)Larger wineries in OWG lobbying seem to be grape juice producers. They will still be inspected by ODA for grape juice production and bottling. Should have little to make legitimate comment on the rest of us. Rationale about liability and accepting regulation to keep other regulators out is pretty weak. Seems absurd from my point of view. Other states don't have this issue that I can tell. It could be inferred that these larger wineries wish to use this regulation to hinder or eliminate competition in the marketplace. I'm down 17% from last year giving up wholesale sales, so they are getting some reward already. 

12) In addition since duplicate sanitation codes in title 43(liquor codes) and in title 9 and 37 , different inspectors from different departments could give conflicting instructions. 

13)Possible conflicts in the codes, Title 43 does not list the ODA as permitted to do administrative code inspections. It does list other govermnment etities permitted to do this. Title 9 inspections are administrative code. 

I look at this regulation as an assault on my freedom to make wine the way I wish (in a safe manner). I am a traditional style winemaker and make wines in a different manner and styles than many of the newer production process oreinted businesses. Much of the code is hazardous to my way of making wine (proven safe for thousands of years). I do have the great majority of wineries "albeit mostly silent" support in ending this licensing and inspection process. Let alone beer and wine distributors, which is also ridiculous. 

I have a value system of principles that does not allow me to accept the current condition of regulation. I am taking steps as necessary to eleviate the situation. Asst. Attorney General Jim Patterson views this as a policy issue so that is how we are approaching it at this time. 
This is a silly and overreaching regulation that exists in Ohio. Please put your support behind Ohio SB 91.