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Food and Farming Laws

I think about food a lot. Usually my thoughts revolve around a new recipe I want to try, a delicious meal I’ve recently enjoyed, the weeding that needs doing on the farm where I work, or how to preserve summer’s bounty for a winter full of delicious and healthy meals. And of course, as a staff member in the Produce department, I think about providing good quality food to folks who shop at the Co-op. Rarely, though, do I put on my lawyer hat and ponder federal regulations for cheesemakers, or Wisconsin state statutes about selling home-baked cookies. In reality, we all eat, and thus we are all affected by the laws governing food and farming, even if our thoughts never progress beyond the plate in front of us. Those laws fill volumes in legal libraries and are full of exacting details. What follows is hopefully a much briefer and more comprehensible summary of some recent legal issues related to growing, producing, and consuming food.

GMO Labeling Fight Continues
In a November 2013 Reader article, Dawn Matlak wrote an in-depth review of genetically modified organisms in our food supply and efforts to label them, so here I will only touch on this very contentious issue. In May of 2014, Vermont’s state legislature passed a bill requiring the labeling of foods that contain GMOs. When the law goes into effect in 2016, Vermont will become the first state with an active labeling law. Two other states have labeling laws on the books, but they contain clauses that prevent them from being triggered until a certain threshold is met. Connecticut’s law won’t take effect until another state with a population of at least 20 million passes a similar law. In Maine, labeling won’t be required until five other northeastern states pass similar laws. An initiative that was on the ballot in Oregon this past November is headed to a recount. In order to be first out of the gates, Vermont’s law must first survive a challenge in federal court. The Grocery Manufacturer’s Association and other industry groups have brought a suit against Vermont’s labeling law and both sides expect the case to go all the way to the U.S. Supreme Court. Many see it as a potential bellwether for the future of GMO labeling in this country.

2014 Farm Bill
If you’re looking for the roof under which most farm regulations dwell, the Farm Bill is a good place to start. Earlier this year, the National Sustainable Agriculture Coalition produced a rich analysis of the most recent farm bill. For links to each section of the series, see The 2014 Farm Bill produced mixed results for sustainable food and farming systems. It invests in beginning farmers, local food, organic ag, rural development, and specialty crops (including fruits and vegetables), while also supporting conservation, but fails to reform a commodity and crop insurance subsidy system in desperate need of it. Here’s a collection of the salient points.

  • Conservation and Energy: “For the first time since 1996, new wetland and soil conservation rules... will apply to any farmer who receives crop insurance premium subsidies. The bill also includes a limit on crop insurance and commodity subsidies on nativegrassland that is broken out for crop production.” The bill provides over $800 million in new funding for renewable energy programs. For the first time since it was included in the Farm Bill in 1985, however, conservation funding was cut, by a total of over $6 billion over the next 10 years.

  • Subsidy Reform: While both houses of Congress passed reforms to commodity subsidy programs with bipartisan support, the final bill did not retain these reforms, instead increasing payment levels to 150% above those set in the House and Senate. The final bill also failed to retain a modest reduction in crop insurance subsidies for millionaire farmers. Nor did the bill include a requirement for the USDA to disclose information about who receives such subsidies.

  • Local and Regional Food Systems: The bill expands funding for the promotion of farmers’ markets and local/regional food systems like distribution hubs. It also supports the use of SNAP benefits at farmers’ markets and for CSA shares. In a new development, the bill provides for “Whole Farm Diversified Risk Management Insurance,” that will provide some protection for farms traditionally excluded from the federal crop insurance program, which has been oriented towards large-scale commodity operations. Finally, the bill establishes a farm to school pilot program in eight states.

  • Beginning and Socially Disadvantaged Farmers and Ranchers: Taking a step in the right direction, the bill provides funding for the training of new farmers and ranchers. Oddly enough, especially given the inclusion of a new focus on military veterans, the bill also cuts funding for programs that benefit socially disadvantaged farmers and ranchers.

  • Organic Agriculture: Funding for the program designed to offset the annual cost of certification for organic farms was doubled and funding for organic agricultural research and marketing was renewed. The bill also improves crop insurance for organic farmers.

Backyard Livestock
If the Farm Bill is the overarching umbrella of laws, how about something closer to home and no less politically charged? Raising backyard livestock has been growing in popularity and many municipalities around the country are wrestling with just how much to allow. Madison passed an ordinance in 2004 that allowed city dwellers to purchase a permit to raise up to four backyard chickens (hens only, roosters are forbidden) as long as they have an enclosed shelter. In 2012, the city also formalized a long standing tolerance of backyard beehives by passing an ordinance governing permits, hive setbacks, and water supplies for urban beekeepers. I’ve raised both chickens and bees and encourage you to try it out. The experience is educational and fun—just be sure to respect your neighbors and follow the rules!

Food Safety Modernization Act
One of the most sweeping overhauls of our food safety regulations in many years, the FSMA was signed into law in January 2011. It was intended to shift the focus from responding to contamination to preventing it. For the first time it gave the FDA a legislative mandate to require comprehensive prevention-based controls across the food supply. FSMA focuses on food safety risks from pathogen contamination. It does not address potential risks from GMOs, antibiotic resistance, or pesticide use. The legislation breaks down as follows.

  1. Requires food facilities to evaluate potential hazards in their operations, implement and monitor measures to prevent contamination, and create a plan to take any necessary corrective actions.

  2. Requires FDA to establish science-based standards for safe production and harvesting of fruits and vegetables.

  3. Establishes inspection frequency based on level of risk, allows FDA access to records and outlines accredited lab testing for certain foods.

  4. Provides for greater oversight and enforcement ability related to imported foods.

  5. stablishes ability to impose mandatory recall if a company refuses to voluntarily recall products identified as unsafe.

  6. Provides a full exemption for farms grossing less than $25,000 annually and a partial exemption for those grossing less than $500,000 annually or selling more than half of the products directly to consumers.

In the lead-up to the passage of the FSMA, many were concerned that the regulation was too sweeping, unduly burdened small farmers and food producers, conflicted with standards established for natural resource conservation and organic food production, and wasn’t sufficiently science- and risk-based. In response to these and other concerns raised in the first round of public comments, the FDA re-proposed certain rules with modifications. The FDA is currently accepting public comments on FSMA. See for more info.

The Raw Milk Controversy
As you might imagine in a state with a rich dairy heritage like Wisconsin, raw milk is a loaded topic. According to state law all milk and milk products sold to the public must be graded and pasteurized. Sales of raw milk are limited to incidental (not part of a regular business) sales direct to the consumer on the farm where the milk was produced. In the 2013-2014 legislative session, both the Assembly (AB 287) and Senate (SB 236) introduced bills that would have allowed regular on-farm sales of raw milk by dairy producers that had registered with DATCP (Department of Agriculture, Trade and Consumer Protection). Neither bill passed.

In 2013, the prominent trial of a Loganville, Wisconsin dairy farmer named Vernon Hershberger brought national attention to the state and introduced the issue of raw milk to a wide audience. Hershberger was charged with operating a dairy plant without a license, operating a retail store without a license, producing milk without a license, and violating a DATCP holding order issued during the 2010 raid on his farm. Hershberger argued that he was not subject to state food regulations and that DATCP had no jurisdiction because he had not applied for a license and was not selling to the public, but rather distributing products to members of his private buying club, Grazin Acres, LLC. He was acquitted on all charges except violating the holding order. That conviction held up after appeal.

Hershberger and raw milk advocates state that the trial served as a platform for consumers around the country to learn about the benefits of raw milk. The farmer says that membership in his buying club has increased by 25% since the end of the trial. Meanwhile, critics and advocates seem to have reached a state of detente. No DATCP investigations have resulted in enforcement action since the trial.

This fall, raw milk advocates filed three petitions with the Wisconsin State Supreme Court seeking recognition of a constitutional right to choose what they eat and where that food comes from and to conduct business directly between farmer and consumer without government interference. While the petitions are viewed as somewhat of a long shot even by supporters, it appears this issue won’t be going away anytime soon.       

Cheese for Cheeseheads
In June 2014, the FDA sent shockwaves through the artisanal cheese community across the country by announcing that it would no longer permit American cheesemakers to age cheese on wooden boards. This followed inspections of several New York cheesemakers, citations issued for the use of wooden aging boards, and the state of New York requesting clarification from the FDA. Aging on wood boards has been practiced in Europe for hundreds, if not thousands of years. The European Union authorizes the use of wooden boards. Here at home, the FDA has deferred to states and most states have allowed the practice. Many well respected and highly awarded American cheeses, including Wisconsin standouts Pleasant Ridge Reserve from Uplands Cheese in Dodgeville and Bleu Mont Bandaged Cheddar out of Blue Mounds, are currently aged on wood.

As far back as 1993, UW food microbiologists found wooden boards to be significantly less hospitable to illness-causing bacteria than plastic boards. In a 2013 analysis of various studies on the subject, the Wisconsin Center for Dairy Research concluded that wooden boards “seem to be more effective in trapping bacteria in pores and controlling them with possible antimicrobial properties,” and that “the use of wood boards does not seem to present any danger of contamination by pathogenic bacteria as long as a thorough cleaning procedure is followed.” Despite all this, the FDA stated that the policy was not new, but rather proper enforcement of an existing policy. Moreover, the agency stated that cheesemakers importing cheese to the U.S. are subject to the same rules and inspections under FSMA, creating concern that many of Europe’s best cheeses would no longer be allowed in the U.S.

Immediately following the FDA’s announcement, the artisan cheese community, consumers, and the American Cheese Society raised an uproar decrying the policy as unnecessary and potentially fatal to the future of American cheesemaking. Within days, the FDA retreated, stating “The FDA will engage with the artisanal cheesemaking community to determine whether certain types of cheeses can safely be made by aging them on wooden shelving.” Given the importance of cheese and cheesemaking to our state, this is an issue that bears close watching.

Home-baked Goodies for Sale?
Around the country, states have differing ways of regulating the sale of food produced in someone’s home. These laws are often referred to as cottage food laws. Wisconsin doesn’t rank among the most forward thinking on the matter, but some progress has been made.

In February 2010, AB 229—referred to as the Pickle Bill—was passed into law. It allowed for limited sale of home-canned goods without a license. Previously registration with DATCP was required. The law covers fruits and veggies that are either naturally acidic or acidified by pickling or fermenting with a pH of 4.6 or lower. Some examples include pickled fruits and veggies, sauerkraut, salsas, chutneys, jams/jellies, and applesauce. Sales cannot exceed $5,000 annually and must be direct to consumer. They can only take place at community or social events, farmers’ markets, farm stands, etc., and are limited to products made in a home kitchen.

Hoping to build on the Pickle Bill’s success, cottage food advocates pushed for the passage of a similar law in the most recent legislative session. AB 182 and SB 435 were collectively referred to as the Cookie Bill. The legislation passed the Senate this past February and was referred to the Assembly Rules Committee. Disappointingly for supporters, the bill didn’t make it to the Assembly floor by the end of the legislative session on 4/3/14.

As written, the bill would have eliminated the requirement for a commercial kitchen and license for sale of “non-hazardous” baked goods (typically baked goods that don’t require refrigeration). The limit on sales would have been $10,000 annually. State Rep. Ed Brooks—one of the bill’s sponsors—mentioned opposition from lawmakers whose constituents felt the bill would give an unfair advantage to start-up companies. Supporters remain undeterred and plan to reintroduce legislation in the next session. In the meantime, if you want home-baked cookies, you’ll have to make them yourself.

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