The floods of 2010 created many problems for Iowa farmers this summer, including flood-damaged land and crops. The Iowa Department of Agricultural and Land Stewardship (IDALS) issued a Press Release and Q & A Fact Sheet on Sept. 30, 2010, regarding the harvest of flood-damaged grain in Iowa. The press release warned farmers to keep flood-impacted grain separate from other harvested grain. That’s an important point. In Iowa, “adulterated” grain cannot be used for human or animal consumption. IDALS recommended that adulterated grain in fields and bins should be destroyed. In certain situations, however, grain may be used or “reconditioned” if it is found that the flood-water was not contaminated or that the grain was not contaminated.

Iowa farmers must follow certain prescribed steps with respect to water-damaged grain in order to make a determination of whether grain is “adulterated” or not. In addition, adulterated grain may give rise to other legal complications involving crop insurance and contract issues.

Iowa Law

Iowa Code §198.7 states that grain used for commercial feed is considered “adulterated” if it bears or contains poisons, pesticides or additives in quantities that are “injurious to health.” If a raw agricultural commodity contains pesticides to the extent that the concentration of pesticide residue in the feed resulting from the processed grain exceeds specified tolerance levels, then the grain is deemed “adulterated.” If the poisonous substance is not an added substance, commercial feed will not be considered adulterated if the quantity of the substance in the feed does not ordinarily render it injurious to health.

Thus, the determination for farmers who have damaged grain is whether the grain is “adulterated” under the Iowa Code and, therefore, unfit for animal consumption. This requires testing and a case-by-case determination.
There are two poisons or contaminating substances that are of particular concern after the Iowa floods of 2010:

Mycotoxins (toxic chemicals resulting from fungi); and
Pathogenic bacteria (such as bacteria found in raw sewage or salmonella).

Pesticide contamination from the flooding of agricultural supply companies does not appear to be a concern at this time, because there have been no reported instances of flooding in these areas.

Interaction With the Federal Government

IDALS has been working with federal agencies to determine whether some grain may be used for livestock feed and what standards should be adopted to make this determination. In response to flooding caused by Hurricane Ivan in 2004, the Food and Drug Administration (FDA) and the Center for Veterinary Medicine (CVM) issued a policy letter regarding the use of grain harvested from flood damaged fields in Pennsylvania. The letter indicates that to even be considered for use in animal feed, damaged crops must be reconditioned via cleaning, heat treatment or drying. The letter also specifies that damaged crops must be tested for the following:

Mycotoxins, such as aflatoxin, fumonisin, vomitoxin, zearalonone, and ochratoxin (a positive test indicates levels above FDA’s posted guidance levels);
Heavy metals, such as cadmium, mercury, and lead (above maximum acceptable levels);
The presence of pathogenic bacteria and their toxins, such as Salmonella, E. coli, and Clostridium perfringens and botulinum;
Pesticides, such as organophosphate and chlorinated hydrocarbon pesticides; and
The presence of PCB’s (polychlorinated biphenyls).

The FDA has also indicated that if the damaged grain does not test positive for the above poisons and is successfully reconditioned, the FDA and CVM will not require an agency “diversion request.” However, FDA did note in the letter that any attempts to clean, process, test, or sell the flood-damaged grain for use in animal feed required the farmer to notify the State of Pennsylvania or the Pennsylvania Department of Agriculture.

NOTE: IDALS has indicated that if grain tests negative for the presence of mycotoxins or pathogenic bacteria (the main areas of concern), it will most likely not be subject to a reconditioning process. At the present time, the presence of heavy metals, pesticides, or PCB’s, does not appear to be a concern in Iowa.

IDALS is currently working with the FDA office in Kansas City and the CVM to obtain an Iowa guidance letter similar to the Pennsylvania letter. IDALS will soon be releasing a timeline to producers, indicating when this letter will be issued and the process farmers can go through.

Other Legal Issues

If disputes arise between crop insurance agencies and farmers, §654 of the Iowa Code requires mediation. In addition,if a farmer has a contract with a particular elevator, it is particularly important for the farmer to have the grain tested. Contractual language must be closely examined to determine liability for the risks associated with the delivery of grain that doesn’t meet the terms of the contract.