Diluting Damaged Grain: A Blend of Legal Issues?

State law may also limit a person’s ability to blend grain, so it pays to be familiar with the laws of the jurisdiction in which you operate. Your state department of agriculture should have further information about specific provisions where you operate. Engage legal counsel to ensure that your practices comply with state and federal law.

Challenges with molds and mycotoxins

It has been the Food and Drug Administration’s (FDA) long-standing policy that grains contaminated with aflatoxin and other mycotoxins may not be blended with uncontaminated grain in order to bring the aflatoxin levels to within the FDA action levels for the species to be fed. This policy arguably does not apply to the blending of grain by end users; or those not offering the grain or coproducts for further sale. At times, the FDA has by regulation relaxed this policy in order to address specific aflatoxin outbreaks on a state-by-state basis, and only for certain problematic crop years. Further, when the FDA has relaxed the blending restriction in the past, it invoked additional limitations and requirements before the blended products could be used. So far, the FDA has not relaxed the blending restriction for the 2009 corn crop.

Blenders should be aware of the FDA’s position that the addition of contaminated grain to uncontaminated grain may cause the finished product to be adulterated, in FDA terms. Regardless of the final concentration of the blended grain, the FDA may deem the practice a violation. Whether the combination of sources of grain results in adulteration in violation of FDA’s no-blending policy will depend on the purpose for which the grain is being blended. If, for example, two sources of corn containing 200 ppb of aflatoxin are blended for purposes of adjusting the test weight of the first source, and the end user plans to feed the corn to feedlot cattle, no adulteration has occurred, since the action level for that species is 300 ppb. Alternatively, if one source of corn containing 200 ppb of aflatoxin is mixed with corn without aflatoxin for purposes of obtaining a blend lower than 20 ppb action level for use in dairy feed, the resulting feed is adulterated.

The blending of mycotoxin-contaminated grains can be further complicated by the difficulty with which contamination levels are determined. Often, mycotoxins are not evenly distributed throughout a lot or batch of grain or coproducts, so accurately determining the starting concentration requires extensive sampling. Insufficient sampling could result in overestimating or underestimating the concentration of the source to be blended. Even with accurate sampling, it is wise to allow for a margin of error.

Questions for the grain processing and biofuels industries

Though mycotoxins have been the subject of regulation for some time, there are still a lot of unanswered questions, particularly those confronting the ethanol industry. After the removal of starch, mycotoxin concentrations in distillers’ grains may be three times as high as the corn entering an ethanol plant. The FDA has provided little guidance as to how the manufacturing process may impact a party’s ability to blend contaminated grain before it enters a manufacturing facility. Do FDA action levels limit the contamination levels for grain entering into industrial uses, when the coproducts will be used in animal feed, or do the action levels apply only once the distillers’ grains have been produced? The answer to that question is not clear at this time.

Customer expectations

Parties employing the use of blending practices need to be cognizant of their customers’ expectations and the terms of the parties’ agreements. The ultimate use for the grain may dictate the degree to which blending is acceptable, and may require the seller to submit the grain to additional testing and quality control so that customer needs are met without violation of FDA regulations. Sophisticated buyers and sellers of grain understand the economic realities of the marketplace; and may focus on price first and quality later. Therefore, it is important that buyers and sellers alike are aware of the meaning behind the grades specified in their contracts, and are familiar with the applicable limits and tolerances specified.