Full list: Food Sovereignty News
By JESS BIDGOOD
JUNE 18, 2014
BLUE HILL, Me. — When Dan Brown quit his job driving trucks and began to work on his wife’s family homestead here about a decade ago, he was looking forward to a quiet life of farming. He began raising chickens and growing vegetables, and watched happily as a calf named Sprocket thrived. The Browns built a farm stand and began selling unpasteurized milk and eventually other products, like jam and salsa.
But a few years after the Browns began selling, state regulators saw a problem. It is legal to sell unpasteurized milk in Maine, but because Mr. Brown had never purchased a $25 milk distributors’ license and had not properly labeled his milk, the state argued that his farm was breaking the rules and needed to be stopped.
On Tuesday, Mr. Brown lost an appeal he had made to the state’s highest court after he fought a lawsuit filed by the State of Maine in 2011. It was a blow to a small but vocal rebellion among farmers and consumers who say that burdensome state regulations are keeping the most local form of food — which, around here, has near-religious significance — away from consumers. The case has pitted the state against some small-scale farmers and stirred a feud between new homesteaders and longtime family farmers.
“This isn’t about Dan Brown or Farmer Brown anymore,” Mr. Brown, 46, said on a recent morning. “They’re telling you that you don’t have the right to come get milk from a farmer.”
Mr. Brown said he was told by a state official in 2006 that he would not need to be licensed or inspected if he sold from his farm and did not advertise. So when state regulators from the Department of Agriculture, Conservation and Forestry came calling a few years later, he said, he rebuffed them (colorfully, at times), unwilling to spend money on the upgrades he would need to qualify for a milk distributors’ license.
“I don’t need a $40,000 milk room to produce safe, healthy milk,” said Mr. Brown, who asserts that the decision to buy his milk should be left to customers who know him, not to the state.
In 2011, the State of Maine and the commissioner of its Agriculture Department filed a lawsuit against Mr. Brown, alleging that he had sold unpasteurized milk without the proper license and labeling, and operated a food establishment without a license to do so. Last year a judge agreed, ordering him to pay a fine of about $1,000 and to stop selling. Mr. Brown has since filed for bankruptcy.
“It was ridiculous, ludicrous and maddening,” said Florence Reed, a neighbor who directs an organic farming nonprofit and who was a customer of Mr. Brown’s. “Dan’s milk is what they choose to protect us from?”
Last month, Mr. Brown went to the state’s highest court, in Portland, for a hearing on his appeal. He was accompanied by a bevy of supporters who want farm-to-consumer sales to be free of state and federal regulation that, they say, is intended for supply chains that are much more complex than theirs.
In 2011, voters made nearby Sedgwick the first town in Maine to pass a so-called food sovereignty ordinance, which grants an exemption from food safety rules to farmers selling directly to consumers. Blue Hill soon followed. There are now 11 towns in Maine with such ordinances, and similar measures have popped up in states including California and Vermont. Pete Kennedy, the director of the Farm-to-Consumer Legal Defense Fund, said this was the first litigation involving one of the ordinances, so advocates were watching closely.
“We’ve gotten them out of our bedrooms and our voting booths,” said Betsy Garrold, the head of a group called Food for Maine’s Future, before Mr. Brown’s hearing. She then said they needed to get the state “out of our kitchens.”
Mark Randlett, an assistant attorney general who was arguing the state’s case, said Maine needed to be able to regulate food sales to protect public health. “The department really does support local food sales and these kinds of transactions between farmers and individuals,” but not without rules, Mr. Randlett said last month.
Mr. Brown’s lawyer, David Gary Cox, argued that the state could not change the rules on Mr. Brown, since officials had first told him he would not need a license, and invoked the Blue Hill ordinance in his defense. The judges said that public health ramifications outweighed Mr. Brown’s concerns about obtaining a license and that the ordinances were pre-empted by state and federal law. Advocates of the ordinances said that they expected towns would nevertheless continue to pass them, and that they would seek to pass a state law that would create some regulatory flexibility for small-scale dairy farmers.
“We’ll continue to work with the legislators who have supported us,” said Heather Retberg, 40, a farmer from Penobscot, Me., who sells raw milk without a license to a private buying club. Tuesday’s ruling, she said, “puts us in an uncertain spot again.”
But other farmers were worried that relaxing food safety rules for small-scale farms could endanger the industry, and were frustrated by Mr. Brown’s case and its supporters.
Mr. Brown had been lobstering to make ends meet but stopped so he could tend the farm when his wife, Judy, fell ill the morning after their State Supreme Court hearing. They will focus on homesteading for now, Mr. Brown said, but will pare down, and he will seek other sources of income. On Wednesday, they were planning to make pizza with mozzarella from their milk.
“The farm can change,” Mr. Brown said. “We can survive; it’ll just be more of a farmstead for our life, not our livelihood.”
PORTLAND, Maine (NEWS CENTER) — A fight over local control and food sovereignty that began in the fields of Blue Hill more than two and a half years ago, spilled over into the state’s highest court on Tuesday.
Justices with the Maine Judicial Supreme Court heard arguments from lawyers representing Dan Brown, a small farmer fighting against sanctions imposed by the Maine Department of Agriculture that stem from his sale of raw milk on his farm without a license.
“I can’t give my neighbor a half gallon of milk. This is crazy talk,” exclaimed Brown as he stood outside the Cumberland County Courthouse.
Brown says it was about ten years ago when he and his wife, Judy, decided to start a small farm operation on their land at their home in Blue Hill. They had a handful of chickens and added a couple of cows.
“I loved it. It was a way of life,” said Brown.
They were producing more milk than they could consume, so Brown says he approached the state to see if they could sell the raw, unpasteurized milk, he was told he could on his farm as long as he didn’t advertise he was doing it.
“I was following their directions,” he explained. “I asked them what can I do? Where can I sell my milk? ‘If you sell from your farm, we don’t need to know you’,” he says he was told.
For several years he says they’re weren’t any problems. His operation grew to roughly 300 chickens and eight cows. He invested money in a farm stand and started making cheese and other products along with selling vegetables. Brown says he never worked so hard in his life, or was as content working as when he was fixing things on the farm.
In 2011, an inspector with the state paid his farm a visit. Brown says he was told he needed to make numerous improvements to comply with state regulations. He estimates it would have cost between $20,000 and $60,000 to meet the requirements.
“To produce a couple gallons a day, how could you ever recoup that?” he wondered. “It is the infrastructure needed to produce the milk to fall under a commercial dairy license.”
Brown closed his doors for about a week. Other farmers in the area reached out to him and told him the laws had not changed and that he should continue operating as he had been. So he reopened and was soon sued by the state.
Dan Brown says paying for the required license was never the issue, but the amount of money he would have had to invest to build the infrastructure to fall under a commercial dairy license was beyond his capabilities and something he was not interested in doing.
“This is about more than one man, milking one cow and selling its milk to his neighbor,” stated State Representative Brian Jones, at a rally before Brown’s hearing outside the courthouse. “We support the right of communities to determine how they will manage the production and distribution of food among themselves and the rights of individuals to determine what foods they will eat.”
Jones joined Brown and roughly two dozen of Brown’s supporters on the courthouse steps before his case was heard. All of them support local food sovereignty ordinances like the one passed in Blue Hill back in 2011. The ordinances seek to protect small scale food producers from having to comply with state and federal regulations and inspections.
“I am here because I believe food raised by a community, for a community, within a community should be regulated by that community,” said Heather Rhetberg, who traveled to Portland from her farm in Penobscot to show her support for Brown.
Eleven Maine towns have passed food sovereignty ordinances in recent years in an effort to support their local economies and keep them in business supplying their friends and neighbors with food grown or made in their own backyards.
Gary Cox, a lawyer with the Farm-to-Consumer Legal Defense Fund traveled from Ohio to Maine to represent Brown before the Supreme Court. He says if Brown is successful in his appeal it will “be a huge victory for food sovereignty”.
The state, which imposed a fine of $1000 on Brown for selling raw milk without a license, believes state and federal statutes supersede local ordinances.
“The department really does support local food sales and these kinds of transactions between farmers and individuals,” stated Randlett. “But, again as I pointed out, it can’t be without rules.”
The Maine Judicial Supreme Court is expected to issue its findings in the coming weeks.
By TARINI PARTI and HELENA BOTTEMILLER EVICH
Farmers should have the right to milk a cow and sell a gallon of that milk to their neighbors, argue libertarian supporters of the “food freedom” movement. They should be able to slaughter and sell the meat of the livestock they raised directly to consumers.
Consumer advocates and Big Ag have fought successfully for years to keep strong federal and state regulations on the books to block such allowances, citing serious food safety concerns. But as buying local has become all the rage and concerns about industrialized agriculture more widespread, the right-leaning food freedom cause is gaining steam and increasingly finding allies on the left.
House legislation to legalize the interstate shipment of unpasteurized milk, which is illegal to sell in about half of the country, recently attracted more Democratic co-sponsors, including Reps. Chellie Pingree (D-Maine) and Jared Polis (D-Colo.). In years past, former Rep. Ron Paul (R-Texas) had few allies stand with him on the same issue.
In another example of food freedom bipartisanship, Democratic Reps. Pingree and Peter Welch of Vermont teamed up with Republicans Steve Womack of Arkansas and Cory Gardner of Colorado to take on a regulation the FDA proposed under a 2011 food safety law that would impose new safety standards on spent grain, which brewers often donate or sell to livestock farms.
Small-scale producers have also had the support of Sens. Jon Tester (D-Mont.) and Kay Hagan (D-N.C.), who gained major exemptions for them when the sweeping food safety overhaul was being considered in the Senate.
However, as the movement gains support inside and outside the Beltway, consumer advocates hope the trend to support small producers doesn’t outweigh efforts to make food safer.
But supporters of the movement, including Rep. Thomas Massie, the Kentucky Republican who sponsored the two raw milk-related bills and is looking to take a leadership role in the food freedom movement, insist the food safety argument is moot because industrialized agriculture is causing more problems.
“The food or farm freedom movement is really bipartisan,” Massie said. “Many consumers care not only about the safety of their food but also how it was raised. Neither party has a monopoly on healthiness, if you will, and in general this food is healthier.”
The freshman congressman, who manages his own farm where he and his wife produce grass-fed beef, grow and can fruits and vegetables and raise chickens and ducks, plans to introduce more food freedom bills in the coming months. He hopes Democrats are willing to go along for the ride.
“I sit two or three seats from the aisle in the House of Representatives because I’m always looking for Democratic co-sponsors,” he quipped.
Massie and one of his Kentucky Republican compadres, Sen. Rand Paul — an especially popular figure within the food freedom movement — have expressed interest in introducing legislation to allow all meat producers the same exemption from USDA inspections provided to poultry farmers who raise less than 20,000 birds a year.
Just before Massie was elected to office in 2012, he and Paul visited the Virginia farm of Joel Salatin where they discussed potential bills that could ease regulatory burdens on small farmers.
Salatin, who runs a diverse farming operation that includes raising chickens for slaughter, is a celebrity in the food freedom movement, having been prominently featured in Michael Pollan’s bestseller, “The Omnivore’s Dilemma: a Natural History of Four Meals,” and the Oscar-nominated film “Food, Inc.” Salatin’s own 2007 book, one of nine he’s written, “Everything I want to do is Illegal: War Stories from the Local Food Front,” has helped galvanize support for the cause.
Salatin said he first discovered the impact regulations had on small farms when he graduated from high school and decided to become a farmer himself.
“I realized that any time the government tries to get in between your lips and throat — that was a pretty drastic invasion of privacy and freedom,” he said.
By Tom Philpott
Wed Nov. 6, 2013
When President Obama signed into law an overhaul of the nation’s food safety regime in early 2011, it was clear that the system needed a kick in the pants. Recent salmonella outbreaks involving a dizzying array of peanut products and a half billion eggs had revealed a dysfunctional, porous regulatory environment for the nation’s increasingly concentrated food system.
The law, known as the Food Safety Modernization Act (FSMA), was a pretty modest piece of work when it came to reining in massive operations that can sicken thousands nationwide with a single day’s output. No surprise, since Big Food’s main lobbying group, the Grocery Manufacturers Association, notes on its web site that “GMA worked closely with legislators to craft the FDA Food Safety Modernization Act and will work closely with the FDA to develop rules and guidance to implement the provisions of this new law.” (Food and Water Watch summarizes FSMA here; Elanor Starmer lists some of its limitations here.)
Even for many supporters of food safety reform, one persistent question has long been whether the new rules would steamroll small and midsize farms. Obviously, what would be a light burden for a multinational giant like, say, Kraft Foods, could be a crushing one for a farm that sells its produce at a farmers market. To allay fears of one-size-fits-all regulations—which swirled in sometimes-wildly paranoid forms during the FSMA debate—Congress exempted most operations with sales of less than $500,000 from most of its requirements. But the proof of is in the rule-making—the process by which federal agencies, in this case the Food and Drug Administration, translate Congressional legislation into enforceable law. Congress intended its exemption to save small farms from overly burdensome regulation, but the question remained: How would the FDA put it into action?
Finally, more than two years after Obama signed FSMA, the FDA’s rule-making process appears to be nearing an end. And I’m disappointed to report that, according to decidedly nonparanoid, noncrazy observers, the proposed rules as currently written represent a significant and possibly devastating burden to small and midsize players.
If you’ll excuse the gimmick, here are four foods that could go missing if the FDA sticks to the current version of its food-safety rules.
1. The local, organic carrots in your kid’s school lunch program. Many farm-to-school programs are facilitated by what the US Department of Agriculture calls food hubs—operations that gather produce from small farmers and sell it, usually to buyers like schools, restaurants, and retailers. The USDA actively promotes them as “strong and sound infrastructure support to producers across the country which will also help build a stronger regional food system.” The USDA lists more then 100 active food hubs nationwide.
The new rules imperil food hubs in two ways. The first is through the farms that supply them. The new law’s less-than-$500,000 exemption applies only to farms that sell more than half of their produce directly to consumers. But a growing number of small farms earn a significant amount of their income selling to third-party local enterprises like food hubs and food co-ops—and if revenue from those sources exceeds half of total revenue, these farms would lose their exemption and become subject to costly requirements.
Then there’s the problem that the FDA’s proposed rules have not settled upon a definition of “very small business.” If such a definition isn’t spelled out, NSAC warns, operations like food hubs could be “regulated well beyond their risk and with compliance costs too high for them to stay in business.”
2. The kohlrabi in your farm-share box. You might be annoyed by the amount of kohlrabi (a grievously underrated vegetable) in your CSA, but probably don’t want it to disappear altogether. But because the current proposal doesn’t narrowly define “manufacturing facilities,” CSAs and other “direct farmer-to-consumer farms that do light processing activities or include produce from another farm in their boxes will be subject to inappropriate, excessive regulations designed for industrial food facilities,” NSAC states.
3. The pickles peddled by your favorite hipster farmer. Small value-added operations—like artisanal pickle and salsa makers—are also endangered by these hazy definitions. Indeed, the proposed rules “treat pickles like a dangerous substance,” NSAC reports. The FDA does not consider fermentation (pickling) or canning to to be “low-risk” activities, and thus operations that engage in them, no matter how small, will be subject to an onerous thing called the Preventative Control Rule—a set of requirements that make sense for a huge factory but not so much for the farm that produces your prized kimchi.
4. The local, organic spinach you’re hooked on. For me, perhaps the most galling aspect of the proposed FSMA rules involves compost and manure—the lifeblood of soil fertility on organic farms. Under the USDA’s organic standards for crops that come into contact with the soil, like greens, farmers can apply raw manure to soil as long as it’s at least four months prior to crop harvest. Most organic farmers I know apply manure in November and plant their first cash crops in April, harvesting some of them, like salad greens, soon after. That’s a five-to-six-month gap. The FDA’s new rules would push the limit for all farms to nine months, making the fertility programs that drive organic farming essentially illegal, and also directly contradicting the FSMA itself, which had stipulated that the new safety safety rules should not conflict with the National Organic Program, NSAC reports.
The nation deserves a food safety regime that focuses on real threats while not imposing the same regulatory burden on, say, a CSA or a diversified vegetable farm as it does a giant peanut-paste factory. As Ariane Lotti, NSAC’s assistant policy director, told me, “If the proposed regulations are finalized without changes, they will unjustifiably create barriers to sustainable and organic farming, chill the growth in local and regional food systems, and further consolidate farming into the hands of the few who can afford to comply with expensive requirements.”
The FDA is accepting public comments on its proposed rules until November 15.
By Vern Grubinger
October 2013 Issue
For many years, foods that pose significant safety risks if not properly handled have been highly regulated, including dairy, meat and seafood. Fruits and vegetables don’t pose nearly as much risk, so growers haven’t had to deal with food safety regulations aimed at fresh produce. Some growers voluntarily complied with Good Agricultural Practices (GAP) in order to satisfy their markets, but for the most part, the industry was left to take common-sense precautions to keep produce safe.
With Congress passing the Food Safety Modernization Act (FSMA), that situation has changed. Once implemented, this federal law will require many growers to spend a lot of time and resources on risk prevention. Even growers exempted from the law are likely to be affected, because over time food buyers will want documentation of similar food safety practices from all the farms they deal with.
According to the Centers for Disease Control and Prevention (CDC), about 48 million Americans get sick and 3,000 die each year from foodborne diseases. However, little of this is due to fresh produce. For example, from 1996 to 2010, there were 131 produce-related outbreaks resulting in 14,350 illnesses and 34 deaths. Thus, fresh produce accounts for about 1 percent of all foodborne disease-related deaths. While this is tragic and growers agree that more can be done to reduce food safety risks on their farms, it should be recognized that millions of pounds of fresh produce are consumed every day with hardly any problems. That said, FSMA is now the law, and growers will have to deal with its requirements, aimed at making a small risk even smaller.
The law and the rules
The FSMA law provides the framework for new food safety regulations, called rules. These are written after a law is passed, and they provide the specifics of how it will work. FSMA put the U.S. Food and Drug Administration (FDA) in charge of regulating food safety on produce farms, rather than the U.S. Department of Agriculture (USDA), which has typically regulated farm practices.
There are a variety of rules associated with FSMA, but two in particular specify what will be required of growers: the Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption (produce safety rule); and Preventive Controls for Human Food (preventive controls rule).
The draft rules are long, complicated documents, but there are many summaries available online. A good place to start is the FDA’s website: http://www.fda.gov/Food/GuidanceRegulation/FSMA. For summaries of the different sections of the rule online, visit:
National Sustainable Agriculture Coalition: http://sustainableagriculture.net/fsma
University of New Hampshire Cooperative Extension: http://extension.unh.edu/Food-Safety-Modernization-Act-FSMA
New England Farmers Union: http://www.newenglandfarmersunion.org/food-safety-modernization-act
Don’t miss the deadline
The deadline to submit comments to the FDA on the draft FSMA rules has been extended twice, to November 15, 2013. After that the FDA will finalize the rules, though it will be a few years before they’re implemented. Take the time to learn how the rules will affect your farm, and then submit your comments online.
Below are some key concepts about the proposed rule, and I have listed some specific concerns and suggestions. These are my personal opinions, not those of any organization I work for. Take time to develop your own views on these issues.
Farm versus facility
The produce safety rule applies to farms that grow, harvest, pack or hold what is termed “covered” produce. The preventive controls rule applies to facilities that manufacture, process, pack or hold human food, and those that buy and resell products grown on other farms. These facilities must register with the federal government. If you only grow, wash and trim off outer leaves, and if you only sell products you grow, then you run a farm and the preventive controls rule does not apply to you. However, if you peel, chop, combine ingredients, or buy and resell products from another farm, you run a facility or a mixed farm facility and you may be subject to this rule.
Facilities have to keep a written food safety plan, including a hazard analysis, and they will be required to keep records of preventive controls, monitoring, corrective actions and verification. There is still some confusion about what activities make a farm into a facility. Further, the scale of production that triggers designation as a facility and associated requirements is not yet set; exemptions up to $25,000 or even $500,000 have been suggested.
Many farms buy and resell products from other farms. Quite a few farms lightly process vegetables or do on-farm value-added processing. Even a minimal amount of additional paperwork will deter farms from engaging in these activities, which have been encouraged as ways to strengthen local food systems. Only farms that conduct these activities with large volumes of produce – over $1 million of sales to wholesale markets – should be regulated as facilities. Buying fresh produce in clearly labeled containers from other farms that have their own food safety plan does not increase food safety risks enough to warrant the buying farm coming under the preventive controls rule.
Covered produce is generally eaten raw, such as leafy greens, melons, tomatoes, etc. The produce safety rule does not apply to produce that is usually cooked, such as asparagus, beets, potatoes, pumpkins and sweet corn. It also does not apply to produce grown for personal consumption or consumption on the farm.
Buyers are not likely to distinguish between covered and noncovered produce and will want to see evidence of food safety risk management on all farms they purchase from. Further, since most farms grow, harvest and pack a mixture of covered and noncovered produce, these categories complicate the rule without providing significant regulatory relief to most farms. The rule requires careful separation of covered and noncovered produce. It would be simpler for the marketplace and diversified farms if FSMA simply applied to fresh produce.
Cost to growers
The FDA developed estimates for the cost of FSMA implementation. For farms with total food sales between $25,000 and $250,000, the cost is approximately $5,000 per year; farms with sales between $250,000 and $500,000 could spend about $13,000 per year; and for farms with sales over $500,000, the cost is estimated at $30,000 per year.
These are large expenses for small and medium-sized farms, especially when you consider that food sales include all types of food, while the costs are incurred only for covered produce, which may be a fraction of a farm’s total food sales. For example, many farms in my area gross just over $500,000 in food sales, and their covered produce accounts for perhaps half of that. A $30,000 hit will take a large part of their net revenues.
These high costs, in combination with the management burden of compliance, are likely to drive many small and medium growers out of the fresh produce business. It will be simpler to not grow fruits or vegetables and just have a store that sells other farms’ products. Even though many farms that sell retail or directly to retailers will be exempt from FSMA, they are likely to have similar costs if their customers or insurance agents demand analogous food safety documentation. These costs will hinder the development of local food systems that provide economic development, food security and access to fresh food for communities across the nation.
To submit comments online:
Produce safety rule: http://www.regulations.gov/#!submitComment;D=FDA-2011-N-0921-0199
Preventive controls rule: http://www.regulations.gov/#!submitComment;D=FDA-2011-N-0920-0188
If submitting online, write your comments ahead of time and save them on your computer. There is a time limit when using the Federal Register system, and you don’t want to lose what you’ve written. If your comment is less than one page, you can copy and paste it into the comment box. If it is longer, write “see attached” in the box and upload a separate Word or PDF file with your comments. Be sure to click the “submit” button! You should then see a new screen with a confirmation number.
To submit comments by mail, send them to: Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Room 1061, Rockville, MD 20852. Include the docket number in your comments; the produce safety rule is FDA-2011-N-0921, and the preventive controls rule is FDA-2011-N-0920. Mailed comments must arrive by the deadline, so send them a week ahead just to be sure.
The author is a vegetable and berry specialist with University of Vermont Extension based at the Brattleboro office.
By Wes King
Agriculture in the United States faces a significant and potentially devastating threat from sweeping new federal food-safety regulations.
As consumer demand for locally grown produce grows and the economic and public health benefits of local food systems stack up around the country, these new proposed food-safety regulations could bring all that to a screeching halt.
The Food and Drug Administration (FDA) has proposed rules implementing the Food Safety Modernization Act (FSMA) that, by the agency’s own analysis, could reverse the trend of new and beginning farmers entering the industry and force many existing farms and food businesses out of operation.
Consequently, these rules could reduce the supply of fresh, nutritious, local produce and increase our nation’s dependence on imported food.
The proposed produce rule establishes new burdensome regulatory standards that govern production practices on farms that produce fresh food for people, such as how they manage things like water and recordkeeping.
In the analysis accompanying the proposed rule, the new rules are estimated to cost the domestic produce industry about $460 million annually.
The rules, available for public comment in the Federal Register until Sept. 16, are estimated to cost farmers:
=Very small farm, $25,000-$250,000 in sales, about $4,700 per year
=Small farm, $250,000-$500,000 in sales, about $13,000 per year
=Large farm, more than $500,000 in sales, about $30,500 per year
For many farmers who are currently growing produce and for beginning farmers who are interested in growing produce for local direct or wholesale markets, the cost of compliance will be too steep.
The FDA’s analysis says “the rate of entry of very small and small [farm] businesses will decrease” as a result of the produce rules.
Former USDA Deputy Secretary Kathleen Merrigan said in a recent speech the FSMA rules have the potential to “destroy some operations.”
A bipartisan, bicameral group of legislators, in a May 28 letter to FDA Commissioner Margaret Hamburg, noted rising consumer demand for organic and locally produced farm goods has led to increased economic opportunity, often aided by substantial public investments in infrastructure.
The letter noted “the proposed FSMA rules threaten to undermine those investments.”
In passing the FSMA, Congress included many provisions intended to protect local food production and distribution from inappropriate and costly regulations.
Congress included directives for modified risk and scale appropriate requirements for farms and entrepreneurs with short supply chains and sales below $500,000.
The $500,000 sales threshold, however, applies to all food produced by the farm, not just the fresh produce that is regulated by FSMA. Corn, soybeans, cattle, pigs and eggs sold by a farm all count towards this threshold.
This means if a farm with 500 acres of field corn and around $500,000 in annual sales also has a few acres planted in mixed vegetables to sell at a local farmers market or plants a field of pumpkins for an October farm stand, those few acres would be covered by the full produce rule even if their total sales only amounted to $50,000 or less.
This would subject farmers to thousands of dollars in annual compliance costs — even if the majority of their crop (field corn) isn’t subject to the new rules.
Please submit your comments by Sept. 16 at www.federalregister.gov/articles/2013/04/26/2013-09761/standards-for-the-growing-harvesting-packing-and-holding-of-produce-for-human-consumption-extension.
To learn more about the FSMA and the potential effects of the proposed produce rule, the federal comment period and what you can do to protect diversified family farms and local food visit: http://sustainableagriculture.net/fsma/.
Farmers are distributing food via private contracts like herd shares and leasing arrangements, which fall outside the regulatory system of state and local retail licenses and inspections that govern public food sales.
By David E. Gumpert
Around the country, local farmers are selling meat, dairy products, and other dinner table staples directly to neighbors, who are increasingly flocking to the farms in search of wholesome food.
This would seem to embody the USDA’s advisory, “Know your farmer, know your food,” right? Not exactly.
For the USDA and its sister food regulator, the FDA, there’s a problem: many of the farmers are distributing the food via private contracts like herd shares and leasing arrangements, which fall outside the regulatory system of state and local retail licenses and inspections that govern public food sales.
In response, federal and state regulators are seeking legal sanctions against farmers in Maine, Pennsylvania, Wisconsin, Minnesota, and California, among others. These sanctions include injunctions, fines, and even prison sentences. Food sold by unlicensed and uninspected farmers is potentially dangerous say the regulators, since it can carry pathogens like salmonella, campylobacter, and E.coli O157:H7, leading to mild or even serious illness.
Most recently, Wisconsin’s attorney general appointed a special prosecutor to file criminal misdemeanor charges against an Amish farmer for alleged failure to have retail and dairy licenses, and the proceedings turned into a high-profile jury trial in late May that highlighted the depth of conflict: following five days of intense proceedings, the 12-person jury acquitted the farmer, Vernon Hershberger, on all the licensing charges, while convicting him of violating a 2010 holding order on his food, which he had publicly admitted.
Why are hard-working normally law-abiding farmers aligning with urban and suburban consumers to flaunt well-established food safety regulations and statutes? Why are parents, who want only the best for their children, seeking out food that regulators say could be dangerous? And, why are regulators and prosecutors feeling so threatened by this trend?
Members of these private food groups often buy from local farmers because they want food from animals that are treated humanely, allowed to roam on pasture, and not treated with antibiotics. “I really want food that is full of nutrients and the animals to be happy and content,” says Jenny DeLoney, a Madison, WI, mother of three young children who buys from Hershberger.
To these individuals, many of whom are parents, safety means not only food free of pathogens, but food free of pesticides, antibiotic residues, and excessive processing.
These consumers are clearly interpreting “safety” differently than the regulators. Some of these consumers are going further than claiming contract rights—they are pushing their towns and cities to legitimize private farmer-consumer arrangements. In Maine, residents of ten coastal towns have approved so-called “food sovereignty” ordinances that legalize unregulated food sales; towns in other states, including Massachusetts and Vermont, and as far away as Santa Cruz, CA, have passed similar ordinances.
The new legal offensive isn’t going over well with regulators anywhere. Aside from the Hershberger action in Wisconsin, and a similar one in Minnesota, Maine’s Department of Agriculture filed suit against a two-cow farmer, Dan Brown, in one of the food-sovereignty towns, Blue Hill, seeking fines and, in effect, to invalidate all the Maine ordinances. In April, a state court ruled against the farmer, and in effect against the towns; sentencing is due within several weeks, and the case could well be appealed.
May 04, 2013
By Mario Moretto
BLUE HILL, Maine — A Superior Court ruling against a Blue Hill farmer who has been selling unlabeled, unlicensed raw milk will have farmers in several Maine towns wondering about the future of local “food sovereignty” ordinances that seek to exempt them from state oversight.
Dan Brown, of Gravelwood Farm, lost a civil case on April 27, in which he was accused of violating three Maine laws: selling milk without a license, selling unpasteurized, or “raw,” milk without marking it as such and operating a food establishment without a license.
Since 2006, Brown has been selling raw milk from a farm stand located on his property. An 8- by 11-inch sign states that the milk is raw. Brown also sold his products at farmers markets after Blue Hill adopted its Local Food and Community Self Governance Ordinance in 2011.
Brown said his sales were legal under the ordinance, which exempts local food vendors from state licensure and inspection, provided they sell their products directly to consumers.
Eight other Maine towns — Appleton, Brooksville, Hope, Livermore, Penobscot, Plymouth, Sedgwick and Trenton — have also passed local food ordinances with the same or similar language.
In her order, Hancock Superior Court Justice Ann Murray ruled that Brown was not protected under the Blue Hill ordinance. It was a major boost for the argument from the Maine Department of Agriculture, who filed the lawsuit against Brown in 2011, that towns cannot simply opt out of state law.
The ruling could have an effect on the other towns with similar rules. If the state were to pursue civil action against other farmers operating without a license, their attempt to seek protection under local food rules would likely fail.
Brown sought shelter under the so-called Home Rule of the Maine Constitution, which permits a municipality to enact its own regulation when permitted to do so by the Legislature, so long as the regulation “is not denied expressly or by clear implication.”
While the Legislature has carved out an exception for small farmers who sell produce at farm stands and farmers markets, the state excluded milk products, making clear “the legislative intent that milk products be subject to stricter regulations than other products,” Murray wrote.
“It is axiomatic that a municipality may only add to the requirements of the statute, it may not take away from those requirements unless permitted to do so otherwise,” she wrote.
While the decision sets a clear precedent in Hancock County, home to five of the nine towns with local food rules, Lourie said the decision’s effect on other county courts would depend on how persuasive the presiding judge found Murray’s legal analysis.
Lourie said Murray could have ordered the town to strike the ordinance from the books, but since she didn’t, Blue Hill is under no obligation to backpedal on its assertion of a right to Home Rule. In the meantime, Brown hopes ultimately to win the case on appeal.
“Obviously this will have some effect, but to put it into perspective, this is not a final ruling,” Brown said. “Until the Superior Court makes a final ruling, I think there’s still some wiggle room.”
Jim Schatz, a selectman in Blue Hill who has supported the local food rules in town and at the State House, where several proposed laws would bolster local food sovereignty efforts, said he doesn’t anticipate conversations among selectmen about repealing the ordinance.
The ruling “shows the kind of work that needs to be done at the legislative level,” he said Friday.
Schatz stressed that selectmen are merely administrators. The ordinance was put forward by residents and approved at a Blue Hill town meeting. In towns such as Blue Hill, voters are the legislative body.
“It may be that the people interested in this ordinance come and ask for some refinement of it, but that’s not a process the selectmen would initiate,” he said. “We’re mere tools of the legislative body, which is a good place to be.”
There are bills being discussed at the committee level that would exempt local food ordinances from being pre-empted by state law, as well as a proposal to allow for direct-to-consumer sales without state oversight throughout Maine.
“We’re carefully monitoring the progress of those bills, because at this point it’s a policy question,” he said Friday.
Regardless, Lourie urged caution for farmers selling their products without licenses under the assumption their towns protect them from state law.
“The law can remain on the books, but it won’t be regarded as a defense [against civil lawsuits from the state],” he said. “Anyone who relies on it does so at their own risk. The town probably ought to repeal the ordinance because it leads people down the primrose path thinking they’re protected when they’re not.”
Brown is scheduled for a civil penalty hearing on May 16 in Hancock County Superior Court, where Murray will rule on what penalties will be levied for each of his three violations.
By Ronnie Cummins and Katherine Paul
Monsanto’s lobbyists are out in force in Vermont, lobbying politicians in the hope of scuttling H.112, Vermont’s labeling law, which would require mandatory labeling of foods containing genetically modified organisms (GMOs).
They’re repeating ad nauseum their propaganda claims that GE foods and crops are perfectly safe and therefore need no labeling, that transgenics are environment- and climate-friendly, and that genetically modified crops are necessary to feed the world.
But as consumers become wiser, Monsanto has had to resort to attacking democracy instead of merely trying to defend its indefensible products.
One of Monsanto’s major propaganda points, designed to discourage state officials from passing GMO labeling laws, is that state GMO labeling is unconstitutional. Last year, the company threatened to sue the state of Vermont if lawmakers passed a GMO labeling law.
Biotech industry lawyers claim federal courts will strike down mandatory state GMO labeling for three reasons:
1) Because federal law, in this case FDA regulations, pre-empts state law.
2) Because commercial free speech allows corporations to remain silent on whether or not their products are genetically engineered.
3) Because GMO labeling would interfere with interstate commerce.
These claims simply don’t hold up. State GMO labeling, and other food safety and food labeling laws, are constitutional. Federal law, upheld for decades by federal court legal decisions, allows states to pass laws relating to food safety or food labels when the FDA has no prior regulations or prohibitions in place.
There is currently no federal law or FDA regulation on GMO labeling, except for a guidance statement on voluntary labeling, nor is there any federal prohibition on state GMO or other food safety labeling laws.
In fact, there are more than 200 state food labeling laws in effect right now in the U.S., including a GMO fish labeling law in Alaska, laws on labeling wild rice, maple syrup, dairy quality, kosher products, and laws on labeling dairy products as rBGH-free.
It is very unlikely that any federal court will want to make a sweeping ruling that would nullify 200 pre-existing state laws.
U.S. case law does indicate that commercial free speech in certain instances allows corporations to remain silent about what’s in their products. However, federal courts have consistently ruled that when there are compelling state interests — health, environment, economic — states can require corporations to divulge what’s in their products or how they were produced.
When it comes to GMOs, states can clearly make the case for compelling state interests, according to Consumer Union’s senior scientist, Michael Hansen. He says: “There is a compelling state interest in labeling of genetically engineered foods and that is due to the potential human health and environmental impacts of genetically engineered foods.”
Hansen also argues that Codex Alimentarius, a collection of internationally recognized standards, codes of practice, guidelines and other recommendations relating to foods, food production and food safety, guarantees nations the right to implement mandatory labeling of GMO foods. The standards support the argument that GMO labels do not constitute a restriction of free trade, as long as they are applied to both domestic and international producers.
Similarly state GMO labels, as long as they do not discriminate against particular producers, but rather apply to all producers — state, national, and international — do not constitute a restriction of interstate commerce.
States and localities have the right and the power to pass their own legislation, especially when the federal government fails or refuses to act on matters of compelling interest. Although large corporations now control the federal government, we still have room to organize and govern ourselves, especially at the local level.
Vermonters are engaged in a fundamental battle, for the right to know what’s in our food, the right to choose what we buy and eat, and the right to regulate out-of-control corporations that are threatening our environment, our health and future climate stability.
Without bio-democracy there can be no democracy. Without a balance of powers between the federal government, states and local home rule, there is no republic, but rather a corporatocracy, an unholy alliance between indentured politicians and profit-at-any-cost corporations.
The battle for food sovereignty, beginning here in Vermont, is a battle we cannot afford to lose.