“Tennessee Welcomes You” sign at the state border

On July 1st Senate Bill 693 (SB 693), also known as the Tennessee Food Freedom Act, went into effect as law. SB 693 is a major step in expanding consumer access to homemade food in Tennessee and keeping more of the food dollar in the state. State Senator Frank Niceley sponsored the bill; Representative Justin Lafferty was the sponsor of companion legislation House Bill 813 (HB 813).

SB 693 allows the unregulated sale of all food that does not require time or temperature control for safety (including fermented foods) by homemade food producers direct to the consumer or “a third-party vendor, such as a retail shop or grocery store.” Sales can be made to the consumer remotely through telephone or internet order. Deliveries of homemade food can be made through third-party carriers; all transactions under SB 693 must be in intrastate commerce only.

The production and sale of homemade foods is exempt from all “licensing, permitting, inspection, packaging…laws of this state, except when the department of health is investigating a reported foodborne illness.” The only requirement under the bill is the disclosure through labeling or other communication (depending on the food sold and the type of transaction) of the following information: the producer’s contact information, the name of the food item, its ingredients, and the statement: “This product was produced at a private residence that is exempt from state licensing and inspection.”

Prior law allowed the sale of “not potentially hazardous” foods (mostly the same foods that can be sold under SB 693) by the producer without a permit directly to the consumer only; further, the producer was subject to inspection and other requirements under the old law. The deregulation of the production and sales of homemade foods along with the now legal third-party sales of these items should increase the number of homemade food producers as well as consumer access substantially. Food buyers clubs, food hubs, and mom-and-pop stores are all possible venues for the sales of homemade food

Niceley has made a huge impact on the fortunes of small farmers in Tennessee. In 2009 he was the sponsor of a bill legalizing the distribution of raw milk through cowshare agreements; he followed up on that success in 2012 by getting an Attorney General’s opinion that it was legal to distribute other raw dairy products through a cowshare arrangement as well. In 2019 he sponsored a successful bill legalizing the retail sale of raw butter by licensed dairies.

In 2014 Niceley sponsored a bill adopting the federal poultry exemption enabling farmers to process up to 20,000 birds a year; the state has since expanded that exemption by policy to include rabbit processing on the farm. In 2017 he sponsored a bill adopting the federal exemptions on custom slaughter and on non-amenable species—the latter exemption allows the sale of meat from animals such as bison and domestically raised deer that are slaughtered and processed at a custom facility. That same year he also sponsored a bill that exempted from licensing and inspection food buyers club and other entities that distribute the products of farmers.

A fifth-generation cattle farmer himself, Niceley is largely responsible for Tennessee having one of the strongest local food systems in the country. He is the legislator small farmers across the state most turn to when they have a regulatory issue.

With the looming engineered shortages in the conventional food supply, it is critical to deregulate the production and sale of locally produced foods. Shortening the supply chains and enabling communities to be more self-sufficient in food production is a way to fight back against corporate tyranny and the threat of food scarcity. All 50 states have Cottage Food laws, with some states such as Wyoming and Montana allowing the unregulated sale of nearly all foods other than meat; illnesses attributed to producers operating under cottage food and food freedom laws are almost nonexistent. States like Tennessee and laws like its Food Freedom Act can be a model going forward for deregulation in other states.

Congratulations to Senator Niceley, Representative Justin Lafferty, Weston A. Price Foundation chapter leader and lobbyist Shawn Day, and others who worked in support of the bill for their success!

Photo Credit: Andrey Krav via iStock.com

The post Tennessee Food Freedom Act Now Law appeared first on Real Milk.

Help Support Maine Right to Food (Nov. 2nd Referendum)

National opposition is working to defeat the constitutional protection of freedom of food choice and food security in Maine. The vote next Tuesday (Nov. 2nd) is a bellwether of things to come on your freedom to produce and obtain the foods of your choice. The same forces will be working to restrict freedom of choice in your state; Maine’s fight is your fight. [Click here to view Action Alert – Please donate at RightToFoodForMaine.org/donate]—donations received by 10pm EST Monday can still go toward radio spots running throughout Election Day on Tuesday.

Real vs Synthetic Food in Maine

On November 2nd, Maine voters will decide Question 3, a referendum to adopt a right to food amendment to the state constitution to enshrine the right to grow, raise, harvest, produce and consume the foods of their choice.

The resolution is a common sense protection of a basic fundamental right–something that is especially needed with supply chain disruptions and the deprivation of fundamental health freedoms throughout the country over the past year and a half. According to the New England Food Vision (nefoodvision.org) webpage, “Where Are We Now“, the New England region imports 90% of its food and 15% of the residents in the region are food insecure (i.e., “regularly do not have enough to eat”).

The vote should be a lock, but powerful interests from outside the state led by the Humane Society of the United States (HSUS) are lobbying against the resolution. The national opposition has now turned Question 3 into a bellwether for freedom of food choice and food security elsewhere in the U.S. The opposition has significant investments in synthetic food which it is pushing on the consumer; less access to real food increases potential market share for synthetic food.

Question 3 on the Maine referendum election ballot reads:

Do you favor amending the Constitution of Maine to declare that all individuals have a natural inherent and inalienable right to grow, raise, harvest, produce and consume the food of their own choosing for their own nourishment, sustenance, bodily health and well-being?

The amendment would add a right to food to the Declaration of Rights in Article 1 of the Maine Constitution. Article 1 would be amended to read:

Section 25 Right to food. All individuals have a natural, inherent and inalienable right to food, including the right to save and exchange seeds and the right to grow, raise, harvest, produce and consume the food of their own choosing for their own nourishment, sustenance, bodily health and well-being as long as an individual does not commit trespassing, theft, coaching or other abuses of private property rights, public lands, or natural resources in the harvesting, production or acquisition of food.

There is in-state opposition to the proposed amendment from organizations such as Maine Farm Bureau and the Maine Municipal Association, but the lead opponent to the measure is HSUS. According to its 2020 annual report, the nonprofit (based in Washington, DC) has $322.3 million in assets; in 2020 HSUS received $214.4 million in revenue, with $39.6 million dollars earmarked for “public policy and enforcement”[1]. HSUS has hired Preti Flaherty, one of the most influential lobbying firms in Maine to help it defeat the proposed amendment.

The stated reason HSUS opposes the right to food is that the measure doesn’t adequately protect animal welfare. In a flyer the non-profit released titled Vote “No” on Question 3, the Misleadingly “Right to Food” Amendment HSUS claims, “The measure could also be used to thwart companion animal cruelty investigations. If, for example, a person was torturing a dog or cat (or any other animal) they could simply claim that they are raising the animal for food and possibly be shielded from prosecution”[2]. To this point HSUS has not mentioned specific incidences of animal cruelty that the amendment would prohibit prosecution of; it has only brought up hypothetical cases.

Proponents of the amendment point out that its language does not provide an absolute right to food and that the measure does not conflict with existing animal welfare laws. One supporter of the measure commented, “Industrial operations make up 5% of the farms in the United States, yet they receive roughly 95% of animal and safety violations not local Maine farmers. So now the lobbyists of these nonprofits want to divert resources meant to combat industrial meat abuses toward oppressing individual small farmers in Maine?”[3]

Another DC-based nonprofit working with HSUS in lobbying against the measure is Animal Wellness Action (AWA), a corporation founded by former HSUS CEO Wayne Pacelle in 2018 [4]. Pacelle has been quoted saying, “We are going to use the ballot box and the democratic process to stop all hunting in California. Then we will take it state by state”[5]. AWA is currently running ads on The Voice of Maine radio station urging people to “vote no on 3 if you care about animals or the environment.”

When HSUS brought Pacelle in as CEO in 2004, the nonprofit increasingly worked on opposing hunting [5] and stopping or significantly reducing the use of animals in agriculture [6]. A look at its leadership provides evidence that its opposition to the Maine amendment is not based as much on animal welfare as it is pushing synthetic food on the people of Maine. The weaker the rights of Maine residents to raise their own livestock and produce their own (traditional) food, the greater the potential market share for synthetic food.

One name comes up more than any other in HSUS leadership and that is McKinsey & Company. McKinsey has been advising governments, military and corporations for over 90 years; McKinsey’s clients include 90 of the world’s 100 biggest companies [7]. It also manages a $12 billion hedge fund that has been used to assist its clients in increasing profits [8].

One HSUS board member is an active partner at McKinsey; another is a former principal for McKinsey, and the Chief Operating Officer for HSUS is a former partner at McKinsey [9].

The McKinsey Center for Agricultural Transformation partners with governments, donors and companies “to improve evidence-based planning and set priorities for accelerating agricultural transformation” [10].

McKinsey works with European biotech companies to expand markets for their products [11]. It was brought in as a consultant [12] to promote the Alliance for a Green Revolution in Africa (AGRA) which the Bill and Melinda Gates Foundation started in partnership with the Rockefeller Foundation [13]. The Gates Foundation previously hired McKinsey to assist in implementing vaccine drug trials in Africa [14].

AGRA is pushing changes to seed laws that protect patented seeds and penalize seed trading [15]. McKinsey has been developing policy plans for AGRA and organizing lobbying meetings between agricultural investors and government representatives in African countries [16]. McKinsey is promoting policies in Africa to encourage land-spreading of sludge and industrial waste by farmers [17], consolidation of farmland control, and increased use of AI in farming [18]. Over the past 5 years McKinsey has actively promoted the value of synthetic meat products manufactured by the corporations Beyond Meat [19] and Impossible Foods [20]. Impossible Foods CEO, Pat Brown, has publicly stated, “We have a simple mission: to replace the use of animals as a food production technology, globally, by 2035” [21].

Aside from the McKinsey influence on HSUS, another Humane Society board member is the co-founder and managing partner of Rethink Food LLC [22]. That company is a venture fund investing in agriculture technology, processing and consumer package goods. Rethink Food partners include Goldman Sachs, JP Morgan, McKinsey and Impossible Foods [23].

For its own part, HSUS–along with Tyson Foods and Bill Gates–invested venture capital in Beyond Meat in 2016 [24,25]. Since that time, both HSUS and AWA have been actively promoting Beyond Meat as a solution to animal welfare concerns [26].

The result of the Maine referendum on Question 3 will be a harbinger of things to come in other states. Will governments protect the freedoms of individuals to produce their own food and help build community food systems and resiliency or will well-financed corporations and foundations be successful in further restricting access to nutrient-dense, real food?

Maine’s fight is your fight. You can support the Maine effort to strengthen freedom of food choice by donating via PayPal to Right to Food for Maine at RightToFoodForMaine.org/donate.

It’s not too late to help. Your contributions will go towards purchasing print ads and radio spots to counter the message of well-financed interests from outside Maine who want to reduce freedom of food choice and prevent a constitutional right to food from getting a foothold anywhere.

Consider this rebuttal to the opposition published by The Ellsworth American [27]:

Federal laws, such as the Animal Welfare Act of 1966, the Humane Slaughter Act of 1958 (amended in 1978), The Preventing Animal Cruelty and Torture Act of 2019 and the Endangered Species Act would still apply, contrary to the opposition argument that a yes vote would open the door to animal cruelty and abuse.

Opponents also say the measure will not “fix” Maine’s food-related problems, including hunger. Fair enough, but that’s not the point. A constitution lays out the foundation. From there, we build.

REFERENCES [last updated 10/30/2021]
[1] The Humane Society of the United States (HSUS), & The Humane Society International (HSI). (2021). 2020 Annual report: Achievements for animals. (PDF, p. 31). https://www.humanesociety.org/sites/default/files/docs/HSUS-HSI_AR2020_LR.pdf

[2] HSUS. (2021). Vote “No” on Question 3, the Misleadingly “Right to Food” Amendment. (PDF). https://www.realmilk.com/wp-content/uploads/2021/10/HSUSNoRightoFoodsheet-flyer-MaineQuestion3.pdf

[3] Davis, D. (2021, October 21). The right to grow, eat the food we choose. Sun Journal. https://www.sunjournal.com/2021/10/21/the-right-to-grow-eat-food-we-choose/

[4] Animal Wellness Action. (2020). Our team. (webpage). http://animalwellnessaction.org/our-team
      Screenshot (2021, October 29) of Wayne Pacelle as AWA founder and former HSUS CEO posted at https://www.realmilk.com/wp-content/uploads/2021/10/AWA-WaynePacelle-founder-2021-1029.png

[5] Robinson, S. (2014, May 20). Trahan: The rise of the animal rights movement. Maine Wire. https://www.themainewire.com/2014/05/trahan-rise-animal-rights-movement/

[6] HumaneWatch.org. (2016, January 26). 10 Things you should know about HSUS. http://humanewatch.org/10-things-you-should-know-about-hsus
      Updated PDF: HumaneWatch.org. (2020, February). 10 Things you should know about HSUS. https://humanewatch.org/app/uploads/2020/04/10Things_April2020.pdf

[7] McKinsey & Company. (2021) About us: McKinsey today. (webpage). Accessed October 29 at https://www.mckinsey.com/about-us/overview/mckinsey-today

[8] Forsythe, M. (2019, February 19). As McKinsey sells advice, its hedge fund may have a stake in the outcome. The New York Times. https://www.nytimes.com/2019/02/19/business/mckinsey-hedge-fund.html

[9] HSUS. (2021). Board of directors. (webpage). Accessed October 29 at https://www.mckinsey.com/about-us/overview/mckinsey-today
      Board of Directors (see Frankleton, Kumar & Patrick) PDF posted at https://www.realmilk.com/wp-content/uploads/2021/10/HSUS-BoardofDirectors-fromMcKinsey-2021-1029.pdf

[10] McKinsey Center for Agricultural Transformation. (2021). How we help clients. (webpage). McKinsey & Company. https://www.mckinsey.com/industries/agriculture/how-we-help-clients/mckinsey-center-for-agricultural-transformation

[11] Le Deu, F, & Santos da Silva, J. (2019, August 23). Biotech in Europe: A strong foundation for growth and innovation. McKinsey & Company. https://www.mckinsey.com/industries/life-sciences/our-insights/biotech-in-europe-a-strong-foundation-for-growth-and-innovation

[12] Malkan, S. (2021, September 9). 200 Organizations ask Gates Foundation to stop funding ‘failed’ green revolution. The Defender. Children’s Health Defense. https://childrenshealthdefense.org/defender/gates-foundation-stop-funding-failed-green-ag-revolution/

[13] Loffredo, J., & Greenstein, M. (2020, July 8). Why the Bill Gates global health empire promises more empire and less public. The Grayzone. https://thegrayzone.com/2020/07/08/bill-gates-global-health-policy/

[14] Loffredo, J., & Greenstein, M. (2020, July 8). “Guinea pigs in the Global South”. Why the Bill Gates global health empire promises more empire and less public. The Grayzone. https://thegrayzone.com/2020/07/08/bill-gates-global-health-policy/

[15] Curtis, M. (2016, June). “Powerful and profitable monopolies” (p.18). Gated Development – Is the Gates Foundation always a force for good? 2nd ed. (Report). Global Justice Now. https://www.globaljustice.org.uk/wp-content/uploads/2016/06/gjn_gates_report_june_2016_web_final_version_2.pdf
      Report (PDF) download link at https://www.globaljustice.org.uk/resource/gated-development-gates-foundation-always-force-good/

[16] Klawitter, N. (2021, June 9). Agrarian alliance AGRA: Empty promises for Africa’s farmers. The Limited Times. https://newsrnd.com/business/2021-06-09-agrarian-alliance-agra–empty-promises-for-africa-s-farmers.rJWhAgAqd.html
      translated from Falsches Versprechen für Afrikas Bauern. Der Spiegel. https://www.spiegel.de/wirtschaft/agrarallianz-agra-leere-versprechen-fuer-afrikas-bauern-a-2132bf23-24c6-4b2e-bde5-a2e9020389f1

[17] Caner, D., De Clercq, D., & Taksvak, M. (2020, September 1). Needle in a haystack: Patents that inspire agricultural innovation. Kinsey & Company. https://www.mckinsey.com/industries/agriculture/our-insights/needle-in-a-haystack-patents-that-inspire-agricultural-innovation.pdf

[18] Goedde, L., Katz, J., Ménard, A., & Revellat, J. (2020, October 9). Agriculture’s connected future: How technology can yield new growth. Kinsey & Company. https://www.mckinsey.com/industries/agriculture/our-insights/agricultures-connected-future-how-technology-can-yield-new-growth

[19] Bashi, Z., McCullough, R., Ong, L., & Ramirez, M. (2019, August 16). Alternative proteins: The race for market share is on. McKinsey & Company. https://www.mckinsey.com/industries/agriculture/our-insights/alternative-proteins-the-race-for-market-share-is-on

[20] Katz, J. , & Lee, D. (2019, August 27). An incredible year for Impossible Foods. (Interview) McKinsey & Company. https://www.mckinsey.com/industries/agriculture/our-insights/an-incredible-year-for-impossible-foods

[21] Brown, P. (2019). Impossible Foods’ 2019 impact report & letter from CEO. Impossible Foods. https://impossiblefoods.com/impact-report-2019/letter-from-the-ceo
      PDFposted at https://www.realmilk.com/wp-content/uploads/2021/10/Brown-ImpactReport-2019-ImpossibleMeat.pdf

[22] HSUS. (2021). Board of directors. (webpage). Accessed October 29 at https://www.humanesociety.org/resources/board-directors#jakeman
      Board of Directors (see Jakeman) PDF posted at https://www.realmilk.com/wp-content/uploads/2021/10/HSUS-BoardofDirectors-fromMcKinsey-2021-1029.pdf

[23] Rethink. (n.d.). Corporate Partners. www.rethinkfood.org/corp
       Webpage of logos (see Goldman Sachs, JP Morgan, McKinsey, & Impossible Foods) PDF posted at https://www.realmilk.com/wp-content/uploads/2021/10/Rethink-Corp-Partners-2021-1030.pdf

[24] Pacelle, W. (2016, October 11). Beyond amazing news about Beyond Meat. A Humane World: Kitty’s Blocks Blog. (Blog). Humane Society of the United States. https://blog.humanesociety.org/2016/10/tyson-invests-beyond-meat.html

[25] Delbert, C. (2021, February 20). Bill Gates Wants Us to Eat 100% Synthetic Beef. He Has a Point. Microsoft News. https://www.msn.com/en-us/health/nutrition/bill-gates-wants-us-to-eat-100percent-synthetic-beef-he-has-a-point/ar-BB1dR02Y

[26] Pacelle, W. (2019, August 1). Where Do The Presidential Candidates Stand On Animal Protection? Animal Wellness Action. https://animalwellnessaction.org/2019/08/01/where-do-the-presidential-candidates-stand-on-animal-protection/

[27] The right to food. (2021, October 22). The Ellsworth American. (editorial). https://www.ellsworthamerican.com/opinions/the-right-to-food/

The post Real vs Synthetic Food in Maine appeared first on Real Milk.

On April 30, Governor Greg Gianforte signed Senate Bill 199 (SB 199), also known as the Montana Local Food Choice Act, into law. Senator Greg Hertz (R-Polson) sponsored the bill. The new law goes into effect immediately.

SB 199 allows the unregulated intrastate sale of most homemade foods from producers to informed end consumers including all raw dairy products if the producer keeps no more than “five lactating cows, 10 lactating goats or 10 lactating sheep” on the farm for the production of milk. There are limited testing requirements for raw milk producers. Producers can sell poultry under the Act if they slaughter and process no more than 1,000 birds during a calendar year and comply with federal recordkeeping requirements.

Livestock producers and homemade food producers may sell “meat and meat products processed at a state-licensed establishment or a federally approved meat establishment” but only if they have obtained a temporary food establishment permit.

Producers must inform the end consumer that the homemade food they are selling has not been licensed, permitted, certified, packaged, labeled nor inspected. Sales and delivery under SB 199 can take place at a farm, ranch, home office, “traditional community social event” (the term includes farmers markets) as defined by the bill, or another location agreed to between the producer and/or the producer’s agent and the informed end consumer.

The bill states that a state or local government agency cannot require “licensure, permitting, certification, packaging, labeling, or inspection that pertains to the preparation, serving, use, consumption, delivery, or storage of homemade food or a homemade food product….” SB 199 does not prevent a state or local health officer from inspecting a producer selling homemade food if the “officer is investigating a complaint based on an illness or an outbreak suspected to be directly related to that homemade food or homemade food product.”

Given his business background, Hertz is one of the last people you would expect to sponsor a bill like SB 199, having owned and operated grocery stores the past 30 years. He sponsored a similar bill as a state representative in 2017, but the legislation died in the Senate after passing in the House. A difference this time around was that Montanans have a legislature and governor that are more in line with the “live and let live” liberty-minded views of its people; a supporter of the bill spoke at the House committee hearing on SB 199 about rugged individualism and a culture of self-sufficiency being part of the Montana way of life. In the past, Montana has had a government that favored a regulatory scheme closer to California’s than neighboring Wyoming’s. Hertz commented that a cottage food bill which passed into law in 2015 was fifty pages long.

Hertz did a masterful job moving the bill through the legislature. There was strong opposition to the bill from organizations such as the Montana Milk Producers Association, the Montana Department of Livestock (DOL), the Montana Medical Association, the Montana Veterinary Medical Association, public health officials and several sustainable agriculture nonprofits. If someone had only seen the committee hearings and known nothing else about SB 199, it would have been easy for them to believe the bill wasn’t going to pass. Hertz was able to overcome the opposition by successfully lobbying committee members one on one until he had the votes he needed. He characterized SB 199 as a jobs bill, and that message helped carry the day. The support for the bill eventually overwhelmed opponents. The state legislative website tallies up for each Bill the proponents and opponents who contact it; over 1,500 people contacted the site In support of SB 199 making it the fourth most popular bill this session—only 53 opposed.

The most contentious part of the bill was the legalization of raw dairy sales. Something proponents had in their favor was that SB 199 marked the fifth consecutive session a raw milk bill was before the legislature and at least some legislators were getting tired of having to consider the issue over and over again. Hertz said during the House committee hearing on the bill, “We need to put the raw milk discussion behind us.” He pointed out that in states like Wyoming and Maine that have also adopted food freedom bills (in Maine at the local level with 80 towns passing food sovereignty ordinances), there hasn’t been a single foodborne illness outbreak even though there is no limit on the herd size in either state. One other factor in favor of legal raw milk sales was testimony at the committee hearings that only 45 Grade A dairies remain in Montana.

In addition to Hertz, much credit for the passage of SB 199 is due Chris Rosenau, an activist from the Bitterroot who has spent thousands of uncompensated hours working for legalization of raw milk sales in Montana. In 2017 Rosenau was instrumental in the state government’s adoption of a policy allowing the distribution of raw milk through Montana securities law. She has worked for legalization of raw milk sales since that time and was able to gather substantial support for SB 199 through her work for the advocacy group Raw Milk Montana.

DOL tried to kill the bill by posting a fiscal note claiming the meat and poultry provisions as originally written in SB 199 would cost Montana its state meat inspection program and over $1 million a year in funding from USDA. Hertz amended the meat and poultry language, successfully addressing that concern. DOL had some of the more onerous requirements in the country for producers processing poultry on the farm under the federal 1,000-bird exemption. The number of farmers processing under that exemption should increase significantly.

With the accelerating deterioration of quality in the conventional food supply, passage of bills like SB 199 is becoming more important. In his testimony on the bill before the House Human Affairs Committee, Hertz said, “We have traded our health, our food security, our local economy for highly processed foods, all in the name of food safety,”

When it comes to health, food safety, food security, and local economies, locally produced food is superior to industrial food in every respect. Congratulations to the people of Montana for the passage of SB 199.

Originally published on 10 May 2021 under title, “Montana Food Freedom Bill Now Law.”

The post Montana Local Food Choice Act Now Law appeared first on Real Milk.

For the fourth time in 2 years, the North Dakota Department of Health (NDDH) is trying to water down the state cottage food law, also known as the 2017 North Dakota Food Freedom Act (FFA). The FFA allows the unregulated sale by producers direct to consumers except those foods that have either meat or raw dairy as an ingredient. NDDH has issued proposed regulations that would make illegal the unregulated sale of a number of foods that are currently legal under the 2017 law. In doing so, NDDH is overstepping its authority and is arguably hurting food safety; the proposed regulations are not about food safety–they are about control.

The FFA clearly states, “Notwithstanding any other provision of law, a state agency or political subdivision may not require licensure, permitting, certification, inspection, packaging, or labeling that pertains to the preparation or sale of cottage food products under this section….” Under the FFA, “cottage food product” means “baked goods, jams, jellies, and other food and drink products produced by a cottage food operator”; it was the NDDH that actually convinced the legislature to adopt this definition for the FFA. The legislature initially included the unregulated sale of raw dairy products in the FFA but pulled those foods out of the bill. The FFA excludes the sale of any uninspected products made from meat. There is no exclusion on any other foods in the FFA.

Shortly after the legislation passed in 2017, NDDH issued a guidance document for the FFA that prohibited the sale of a number of foods other than meat and raw dairy. FFA supporters didn’t abide by NDDH’s interpretation of the law; in 2018 the department followed up with proposed rules that would have again banned the unregulated sale of foods that are legal under the FFA. When food freedom proponents and members of the legislature defeated that effort, NDDH through its allies in the legislature introduced a bill in the 2019 session to roll back the FFA. The legislation, Senate Bill 2269 (SB 2269), as introduced would not only have prohibited the unregulated sale of a number of legal foods but also would have banned the unregulated sale of all drink products. The House of Representatives eventually killed the bill. SB 2269 represents the only legal attempt NDDH has made to dilute the FFA.

The proposed regulations have a number of the same changes that were in the bill that the legislature rejected. Among other things, the bill would have changed the law by making the unregulated sale of low-acid canned foods such as carrots, beets or beans illegal. The rules would prohibit the sale of unrefrigerated foods unless they are frozen–foods such as banana cream pie, potato salad, and carrot and celery sticks would all be affected. The proposed rules define “frozen foods” as foods maintained at temperatures no higher than zero degrees Fahrenheit.

The FFA allows the sale of all foods subject to time and temperature control other than those with meat or raw dairy as an ingredient. The proposed rules would limit the sale of time-and-temperature-control foods to baked goods (e.g., cream pies that are “frozen”) and home processed fresh-cut fruits and vegetables that are either “dehydrated or freeze-dried” or “blanched and frozen” ( i.e., no longer fresh).

The FFA specifically states that no government agency can require licensure for anything pertaining to the preparation of cottage food products, but that is what NDDH is trying to do in prohibiting the unlicensed sale of many foods that are currently legal to sell without a license. There are also labeling and certification requirements elsewhere in the proposed rules, both in violation of the FFA.

Beyond the proposed rules exceeding NDDH’s authority, what makes the department’s action a waste of taxpayer dollars is that in the two-plus years the FFA has been in effect, there has not been a single case of foodborne illness attributed to a producer operating under the state cottage food law. Cottage foods are thriving in the state, bringing in an estimated $1.5 million per year for producers and their families.¹ The rules are a “solution” in search of a problem.

The experience of other states allowing the unregulated sale of time-and-temperature-control foods is similar to North Dakota. Towns in Maine have allowed the selling without regulation time-and-temperature-control foods direct from producer to consumer other than meat and poultry as far back as 2011 under local food sovereignty ordinances; no case of foodborne illness has been attributed to any producer operating under the ordinance. Under the Wyoming Food Freedom Act, producers in that state can sell any food product other than meat without regulation; in the 4-1/2 years since the law went into effect, no one operating under the Act has been found to make anyone sick. The same goes for the Utah Homemade Food Act which went into effect over a year-and-a-half ago, that Act allows the sale of all foods other than meat and raw dairy from the producer direct to the consumer without regulation.

The track record in these states indicates that NDDH’s proposed rules would hurt food safety in North Dakota if they become law. Some producers currently selling under the FFA will not be able to afford the cost of compliance if a license is required for the foods they sell require; others currently producing safe and nutritious food will stop if the law requires them to get a license because they don’t want a government inspector in their home kitchens. Fewer local producers will likely result in more purchases of industrial food which has a higher rate of foodborne illness outbreaks then foods produced under the FFA. The more producers operating under the cottage food law the better the public health is served. Instead of trying to dilute the FFA, there are ways NDDH could be spending taxpayer dollars productively to work with cottage food producers. Farmer LeAnn Harner, a leader in the North Dakota Food Freedom Movement, pointed out that the department could help provide education, equipment, and free testing of recipes to cottage food producers.² The more cottage food producers there are, the safer the food supply, the stronger the local economy, the more self-sufficient communities will be in food production, and the better the health of North Dakota residents.

NDDH has a chance to be an agency that promotes the production and sale of nutritious food rather than being a bureaucracy that restricts it or, in the words of North Dakota Representative Daniel Johnston (R-Kathryn), “the Department of Control”.³

North Dakota residents have until October 12th to comment on the proposed rules. It is important to call and or email NDDH asking that they withdraw the proposed rules. The phone number for the Division of Food and Lodging is 1-701-328-1291 or 1-800-472-2927; the email address is foodandlodging@nd.gov.

Please take action now.

If you are a producer affected by the proposed rules, let NDDH know what products you sell and how the Food Freedom Act has helped your business.

Consumers should let NDDH know what healthy nutrient-dense products the Food Freedom Act has enabled them to purchase direct from producers.

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[1] Harner, LeAnn. “Testimony of Cottage Food Rules”. North Dakota Department of Health hearing on proposed rules, Bismarck, North Dakota. October 2, 2019.

[2] Ibid.

[3] Dura, Jack. “North Dakota Department of Health accused of ‘arrogance’, confusion in proposed cottage food rules”, Bismarck Tribune, October 2, 2019. Accessed at https://bismarcktribune.com/news/local/govt-and-politics/north-dakota-department-of-health-accused-of-arrogance-confusion-in/article_d800a478-ac7d-5a88-8a6c-2f841cf81b96.html

</ br> photo by XXX from Pixabay

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The way FDA is interpreting these regulations, many local food producers will be under FDA‘s jurisdiction and subject to inspection by the agency, possibly even including a home kitchen producing cottage foods. The biggest potential problem for local food producers is not going to be the HARPC requirements but rather the CGMP mandate.

HARPC–Who Is Exempt?
HARPC does not apply to any business manufacturing, processing, packing or holding food that is not required to register with FDA as a “food facility.” There are a number of exemptions from the registration requirements; the exemption most applicable to local food producers would be the one for “farms” and “retail food establishments.“⁵

“Farm” is defined, in part, as “an operation under one management in one general physical location devoted to the growing of crops, the harvesting of crops, the raising of animals (including seafood) or any combination of these activities.⁶ The term “farm“ also includes “packaging and labeling raw agricultural commodities when these activities do not involve additional manufacturing/processing. Farmers growing/raising and selling raw milk, eggs, raw honey⁷, whole fruits and vegetables⁸, meat from amenable species (cattle, hogs, sheep, goats and poultry)⁹ or any combination of the above foods would qualify as a farm and be exempt from the registration requirement. The farmer/producer selling any processed fruits and vegetables (with one exception)¹⁰, any products processed from raw milk, maple syrup¹¹ or any meats from non-amenable species (e.g., rabbit, bison, deer, elk)¹² would result in the loss of the “farm“ exemption from registration.

If the farm business doesn’t qualify as a “farm“, it can still be exempt from the registration requirement if it qualifies as a retail food establishment. A business qualifies as a retail food establishment if over half of the “annual monetary value of its sales of food products are direct to consumers.¹³ This would include sales of all food products sold by the farmer/artisan not just food products that the business produced.

For those not aware of the “farm” or “retail food establishment” exemption who have registered with FDA, it is recommended—if your business qualifies as a farm or retail food establishment—that you contact FDA and request that it cancel your registration. If FDA independently verifies that your business is not required to register, it will cancel your registration.¹⁴

Those registering with FDA as a food facility with less than $1 million in annual sales are eligible for a “qualified facility” exemption from the HARPC requirement.¹⁵ To obtain the exemption, eligible facilities must submit form FDA 3942a to the agency by December 17, 2018 (those facilities starting up their business after September 17, 2018, must submit the same form before beginning operations).¹⁶ According to FDA’s Outreach Info Center, form 3942a will be available September 19; currently, only a draft version of the form is in circulation.

On the form, those seeking the exemption must attest that they are a qualified facility¹⁷ (e.g., a “very small business“) and either that they “have identified the potential hazards associated with the food being produced, are implementing preventative controls to address the hazards, and are monitoring the performance of the preventative controls to ensure that such controls are effective“¹⁸ or that they are in compliance with state or other applicable non-federal laws and include evidence of regulatory oversight¹⁹ (e.g., licenses, permits). Beginning in 2020, those seeking the exemption must submit form 3942a every two years.²⁰ Under certain circumstances, FDA can revoke the qualified facility exemption.²¹

CGMPs
The CGMP requirements are where FDA will directly regulate local food producers. FDA has been low-key about to whom it will apply the CGMP requirements²², but a read of the regulations indicates that FDA can apply them to local food. Unlike the HARPC requirement, small farms and local artisan producers will have no exemption from the CGMP mandate based on their revenues. Among those exempt from the CGMP are: producers exclusively under USDA jurisdiction (e.g., producing and selling only beef, pork, lamb, goat and poultry products); and farms meeting the “farm” definition discussed above. It appears all, or nearly all, other local food producers will be subject to the CGMPs. According to FDA, the CGMP requirements apply even to businesses operating only in intrastate commerce.²³

CGMPs are a one-size-fits-all regulatory scheme–easily subject to varying interpretation by inspectors–that contain requirements for personnel²⁴, plants and grounds²⁵, sanitary operations²⁶, sanitary facilities and controls²⁷, equipment and utensils²⁸, processes and controls²⁹, warehousing and distribution³⁰, holding and distributing distribution of human food by-products for use as animal food³¹, and the defect action levels³². These are requirements that state legislatures should be determining but FDA wants to regulate as much food and as many food producers as possible. Value-added products are where the money is; FDA wants to have jurisdiction over all of these products, no matter how small the food producer is.

The FDA Bootstrap
As far as is known, Congress never brought up CGMPs when the Food Safety Modernization Act was under consideration but FDA took advantage of the broad power the Act gave it to issue regulations and bootstrapped the CGMP requirements into FSMA. FDA had long contended that FDA could regulate intrastate food commerce under powers granted it by the Public Health Service Act (PHSA) to regulate communicable disease; it wasn’t until FSMA became law that the agency had the traction to do so (the CGMPs had their own Part in the Code of Federal Regulations, 21 CFR 110; FDA used FSMA to insert the CGMPs into Part 117 and 21 CFR 110 will be repealed on September 17, 2018).

The PHSA provides that:

• “The Surgeon General, with the approval of the Secretary [of Health and Human Services] is authorized to make and enforce such regulations as are necessary to prevent the introduction, transmission, or spread of communicable disease from foreign countries into the states or possessions, or from one state or position into any other state or possession. For the purposes of carrying out and enforcing such regulations the Surgeon General may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, distraction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.”

³³

That this power authorizes FDA to inspect home kitchens making cottage foods is definitely a reach. There is nothing in the PHSA or in its legislative history indicating FDA has the authority to inspect an intrastate food business when there is no credible evidence that the business is producing food under unsanitary conditions or is responsible for a foodborne illness outbreak. FDA has claimed that “due to the nationwide interrelated structure of the food industry, communicable disease may, without proper intrastate food controls, easily spread interstate.“³⁴ That statement describes the industrial food system, not the local food system. FDA should recognize the difference between the two and leave the latter alone.

In addition to being beyond its power, enforcing the CGMPs against local food is a waste of resources if FSMA is about improving food safety. Instead of spending whatever money FDA intended to budget towards inspections of intrastate food producers, why doesn’t FDA put its resources towards areas of the food sector where there are actually food safety problems, like imported food?

There are built-in incentives for small farmers and local artisans to produce safe food; those producers are feeding the same food to their families, one product recall can put them out of business, one case of foodborne illness can put them out of business. Legislatures in nearly all states have recognized this with the passage of cottage food bills that allow the direct-from-producer-to-consumer sale of a variety of foods with little or no regulation. Four states have passed food freedom bills and other legislation that allow the unregulated sale from producer to consumer of nearly all foods other than meat. There have been few, if any, cases of foodborne illness attributed to producers operating under cottage food or food freedom laws.

Will FDA actually inspect private home kitchens to make sure that the kitchens are in compliance with applicable CGMP requirements? If there were inspections, they would likely be conducted by state agencies pursuant to a cooperative agreement with FDA. So, state legislators who voted on behalf of their constituents who want to deregulate local food transactions between consumers and producers are now being told by FDA that the same state agencies that the legislators didn’t want inspecting local food producers will now be inspecting them; this even though there is little or no evidence that Congress wanted FDA to inspect these same producers for compliance with CGMPs.

FDA might not have the resources to carry out widespread inspections of local food producers, but the threat is that FDA can create a chilling effect on local food production with a small number of inspections of small farms and cottage food operations; convincing some local food producers to get out of business while deterring others from starting up operations.

There are ways to fight against FDA’s attempt to regulate all local food production. For starters, having Congress deny FDA funding to conduct inspections of those in the food business who are not required to register with the agency as a food facility. State legislatures could also require that any FSMA cooperative agreements between state agencies and FDA exclude in the agreement inspections of businesses not required to register as food facilities. Congress could also amend FSMA to clarify that those not required to register as a food facility be exempt from the CGMP requirements. Those processing, manufacturing, packing or holding food for animal consumption not required to register with FDA don’t have to comply with the CGMP mandate³⁵; FDA can apply the same standards to human food.

An immediate move FDA can make is to include additional kinds of manufacturing/processing under the definition of “farm”, enabling farmers to produce more value-added products while still remaining under the “farm” exemption. The agency is currently in the process of amending that definition.³⁶

The more local food producers there are the safer food will be in this country; applying the CGMPs to small farmers and local artisan producers is a big step in the wrong direction.

—————–
FOOTNOTES

[1] The exact definition of “very small business” in 21 CFR 117.3 reads:

Very small business means, for purposes of this part, a business (including any subsidiaries and affiliates) averaging less than $1,000,000, adjusted for inflation, per year, during the 3-year period preceding the applicable calendar year in sales of human food plus the market value of human food manufactured, processed, packed, or held without sale (e.g., held for a fee).

[bolded emphasis added]

[2] The definition of manufacturing/processing is extremely broad; 21 CFR 1.227 and 21 CFR 117.3 state the same definition:

Manufacturing/processing means making food from one or more ingredients, or synthesizing, preparing, treating, modifying or manipulating food, including food crops or ingredients. Examples of manufacturing/processing activities include: Baking, boiling, bottling, canning, cooking, cooling, cutting, distilling, drying/dehydrating raw agricultural commodities to create a distinct commodity (such as drying/dehydrating grapes to produce raisins), evaporating, eviscerating, extracting juice, formulating, freezing, grinding, homogenizing, irradiating, labeling, milling, mixing, packaging (including modified atmosphere packaging), pasteurizing, peeling, rendering, treating to manipulate ripening, trimming, washing, or waxing. For farms and farm mixed-type facilities, manufacturing/processing does not include activities that are part of harvesting, packing, or holding.

[bolded emphasis added]

[3] 21 CFR Part 117
[4] The deadline for compliance with the CGMP and HARPC requirements is September 17, 2018, for those very small businesses that manufacture, process, pack and/or hold animal food. “Very small business”, in the case of animal food, is roughly defined as those businesses with under $2.5 million in annual sales. See 21 CFR 507.3 and 21 CFR 507.5
[5] 21 USC 350d(c)(1), 21 CFR 1.226(b) and (c)
[6] 21 CFR 1.227
[7] FDA, Questions and Answers Regarding Food Facility Registration (Seventh Edition): Guidance for Industry, August 2018, pp. 10-11. Last viewed 8/30/18 at https://www.fda.gov/downloads/Food/GuidanceRegulation/UCM332460.pdf
[8] Farms growing and selling vegetables could be subject to FSMA’s produce safety standards depending on their income levels and whether the vegetables are usually cooked before being consumed. See 21 CFR 112.1-112.5
[9] Meat from amenable species is not considered a raw agricultural commodity but, since it is under USDA’s jurisdiction, a farmer selling meat from amenable species the farmer raised would not cause the loss of “farm” status.
[10] “Drying/dehydrating raw agricultural commodities to create a distinct commodity (such as drying/dehydrating grapes to produce raisins), and packaging and labeling such commodities, without additional manufacturing/processing….” — from definition of “farm”, 21 CFR 1.227
[11] FDA, Questions and Answers Regarding Food Facility Registration (Seventh Edition): Guidance for Industry, August 2018, p. 9. Last viewed 8/30/18 at https://www.fda.gov/downloads/Food/GuidanceRegulation/UCM332460.pdf
[12] Ibid., p. 21
[13] 21 CFR 1.227
[14] 21 CFR 1.241(c)
[15] 21 CFR 117.3 contains definitions and 21 CFR 117.5 gives greater detail about exemptions.

Qualified facility means (when including the sales by any subsidiary; affiliate; or subsidiaries or affiliates, collectively, of any entity of which the facility is a subsidiary or affiliate) a facility that is a very small business as defined in this part, or a facility to which both of the following apply:

(1) During the 3-year period preceding the applicable calendar year, the average annual monetary value of the food manufactured, processed, packed or held at such facility that is sold directly to qualified end-users (as defined in this part) during such period exceeded the average annual monetary value of the food sold by such facility to all other purchasers; and

(2) The average annual monetary value of all food sold during the 3-year period preceding the applicable calendar year was less than $500,000, adjusted for inflation. Qualified facility exemption means an exemption applicable to a qualified facility under § 117.5(a).

[21 CFR 117.3, bolded emphasis added]

[16] 21 CFR 117.201(c)(2)(i)(A)(b)
[17] Applicants for the exemption must have financial records from 2016-2018 to show that they are a “very small business” as defined in 21 CFR 117.3
[18] 21 CFR 117.201(a)(2)(i)
[19] 21 CFR 117.201(a)(2)(ii)
[20] 21 CFR 117.201(c)(2)(i)(C)(ii)
[21] 21 CFR 117.251
[22] FDA states on its website, “It is important to note that applicability of the CGMPs is not dependent on whether a facility is required to register.” See “FSMA Final Rule for Preventive Controls for Human Food” webpage. Last viewed 8/30/18 at https://www.fda.gov/food/guidanceregulation/fsma/ucm334115.htm
[23] 78 FR 3646, 3651
[24] 21 CFR 117.10 – employee cleanliness and disease control
[25] 21 CFR 117.20 – plant construction, condition of the grounds
[26] 21 CFR 117.35 – general maintenance, cleaning food and non-food contact surfaces, storage of equipment and utensils
[27] 21 CFR 117.37 – water supply, plumbing, sewage disposal, toilet facilities, handwashing facilities, garbage disposal
[28] 21 CFR 117.40 – equipment design requirements
[29] 21 CFR 117.80 – operational requirements for food manufacturing, and food and ingredient storage
[30] 21 CFR 117.93 – sanitary requirements for storage and transportation of food
[31] 21 CFR 117.95 – includes requirements on containers, equipment, and labeling food by-products
[32] 21 CFR 117.110 – Defect action levels. Per 21 CFR 117.3, “Defect action level means a level of a non-hazardous, naturally occurring, unavoidable defect at which FDA may regard a food product ‘adulterated’ and subject to enforcement action under section 402(a)(3) of the Federal Food, Drug, and Cosmetic Act.” [bolded emphasis added]
[33] 42 USC 264(a)
[34] 78 FR 3646, 3651 citing 44 FR 23238 at 33239
[35] 21 CFR 507.5(a)
[36] Letter from FDA Commissioner Gottlieb, July 31, 2018. Last viewed 8/30/18 at
https://www.fda.gov/downloads/Food/GuidanceRegulation/FSMA/UCM615393.pdf

Photo source at top of article: Sandrine Perez. Photo source at bottom: FSMA webpage on FDA website

The post FSMA Food Safety Regs Going Local appeared first on Real Milk.

By Pete Kennedy, Esq.

The International Association of Food Protection (IAFP) held its annual meeting July 8-11 at the Salt Palace Convention Center in Salt Lake City, Utah. The event is the world’s largest food safety conference. The IAFP meeting is where food safety professionals meet to discuss pathogens in food and ways to prevent and respond to the problems those pathogens cause. The meeting is an incubator for the one-size-fits-all food safety laws that make it more difficult for small farmers and artisan food producers to make a living. Most of the crowd at the meeting does not distinguish between the industrial food system and the local food system; the regulations the conference sets in motion are geared for industrial food production and distribution and should apply to all food production and distribution in the eyes of the majority of attendees.

Food safety is a growth industry. Globalization and deteriorating quality in the industrial food system are drivers. Over 3,500 attended this year’s meeting; FDA and USDA both sent dozens of personnel to Salt Lake City. State regulatory agencies, academia (students and faculty) and big business were all well represented at this year’s meeting. Cargill, Merck Animal Health, Smithfield, Kroger, the Grocery Manufacturers Association and Walmart were all sponsors of the event.

Food safety is about the prevention of or response to cases of acute illness; there was little mention at the meeting about nutritious or nutrient-dense food and its role in the prevention of chronic disease.

A point those at the meeting frequently discussed was the complexity of long supply chains starting with the manufacturers of ingredients used by the food producer and continuing through various phases of distribution leading to the purchase of the food by the final consumer. The talk was about difficulties in traceability and ensuring safe food along the supply chain. An antidote to this problem would be to facilitate the local production and distribution of food with its short, direct supply chain, and high level of traceability but that was a solution that was seldom, if at all, brought up at the meeting.

Presentations at the meeting included talks on recent outbreaks, developments in testing for pathogens, and various food safety processes such as HACCP. At the same time the presentations are taking place, there is a trade show where vendors showcase, among other things, the latest products for testing and sanitation measures. Also present in the same location as the trade show are posters (written summaries) of studies related to food safety that are displayed for viewing by meeting attendees. Individuals who worked on the studies are present to answer questions.

Some takeaways from the meeting:

• The FDA’s longtime plan to extend the aging requirement for raw cheese from 60 days to 90 days is alive and well. Part of the evidence for the latest push on this 90-day requirement is an FDA study on how raw gouda cheese inoculated with listeria still contained listeria after 90 days. The FDA scientists who spoke on the study at the meeting acknowledged that the raw milk used in the experiment was intended for pasteurization not direct consumption–a continuation of the agency’s refusal to recognize that raw milk for the pasteurizer and raw milk for the consumer are two different products. Two food safety professionals contacted at the meetings said privately that listeria was a bigger health threat in pasteurized cheese than it was in raw cheese. Regardless, those at the meeting overwhelmingly favor the “kill step” of pasteurization for all dairy products and for other foods.

• A high-ranking USDA official disclosed that the Office of Investigation, Enforcement and Audit (OIEA), a division of USDA’s Food Safety Inspection Service (FSIS), has undertaken an initiative to increase inspections of small and very small plants (e.g., slaughterhouses and processing facilities); there is evidence that this initiative includes inspecting small food buyers clubs selling meat to their members. The question is why? As of 2016 there were only 150 OIEA inspectors in the whole country. Few, if any, food safety problems have been attributed to small plants and very small plants much less to small private food buyers clubs. Wouldn’t it be a more productive use of resources to have the OIEA personnel increase oversight for imported meat and large USDA facilities slaughtering 300-400 cattle an hour–where there are many more food safety problems?

• A high-ranking FDA official spoke about the proposed merger of food regulation between USDA and FDA with the former taking over all food regulation The official said it could be a long process but did not dismiss the merger. The merger would likely be an improvement over the current situation; FDA policies on positive bacteria test results are more strict than either the USDA or European Union countries and lead to more cases of quality, safe food winding up in a landfill.

• One of the featured speakers at the meeting supported the universal adoption of the FDA Food Code, a burdensome regulatory scheme whose cost of compliance is difficult to afford for many small farmers and local artisans producing nutrient-dense food. The late Sue Wallis, the legislator who initially introduced the Wyoming Food Freedom Act, indicated that the main reason she introduced the legislation was to get local food producers selling direct-to-consumers as far away from the requirements of the Food Code as possible. Since 2015 four states–Wyoming, North Dakota, Utah and Maine–have passed food freedom legislation allowing for the unregulated sale of food direct to consumers. As far as is known not a single foodborne illness outbreak has been attributed to a producer operating under these laws in any of the four states.

• Bill Marler, regarded by many as the leading foodborne illness personal injury lawyer in the country, acknowledged that in his 25 years of experience he could not recall having a single client sickened by food purchased at a farmers market.

• There was lots of discussion at the meeting about the recent outbreak attributed to the consumption of romaine lettuce where 5 people died and over 200 others became ill. It turns out that the plant which processed the lettuce was subject to the requirements of the Food Safety Modernization Act (FSMA). Excessive regulation from FSMA doesn’t necessarily mean greater food safety but can mean a decline in food safety with small and midsize producers going out of business due to being unable to afford the cost of compliance.

• Out of 50 states, 46 have signed cooperative agreements with FDA, receiving federal grant money in return for carrying out inspections to enforce FSMA’s federal produce safety. An attendee at the conference from a state public health department related how her department ran out of the federal money in carrying out a cooperative agreement with FDA and had to tap into a state general fund to get more money to finish carrying out the agreement. This is not uncommon. State agencies signing cooperative agreements with FDA should have a clause in the agreement that they do not have to carry out any further duties under it if the federal money runs out.

• Most of the presentations and posters at the meeting had to do with industrial food but there were at least a couple exceptions that were favorable to local food. A USDA scientist did a presentation on pastured poultry reporting among other things that poultry fed a soy-free diet had substantially less campylobacter in their systems. There was a poster on the quality of raw milk for retail sale in Maine reporting on the low incidence of illness attributed to raw milk consumption in that state.

• The atmosphere at the meeting was friendly, a good one for engaging attendees on why locally-produced food should not be regulated the same as industrial food. Most of those attending are trained that there is only one food system. One individual who worked on a poster supporting more regulation of cottage food producers was asked if she was aware of any cases of foodborne illness attributed to the consumption of cottage foods. She said no but then added that it was because cottage foods weren’t traceable. In general there are hardly any foods that are more traceable than cottage foods.

Most cases of foodborne illness are caused by industrial food; this is true even when factoring in the market share industrial food has compared to local food. Unregulated local food producers have plenty of incentive to produce safe food: their families consume the same food they are selling, one recall can put them out of business, and one case of foodborne illness can put them out of business. Food safety regulators like dealing with short supply chains and a high degree of traceability; local food producers–regulated or not–satisfy both of these parameters

When you also factor in the amount of chronic illness the local food and industrial food systems are responsible for, there is no question the local food system is responsible for fewer cases of chronic illness even when the market share of the two systems is accounted for. Take a survey on the demand those who obtain a majority of their food from the local system make for services on the medical system versus those who obtain a majority of their food from the industrial system. Policymakers should take both acute and chronic illness into consideration when crafting food regulations and legislation. The more local food producers there are the less demand there will be on the medical system for services; food freedom laws lead to more local producers.

The IAFP meeting is a place where ideas for food safety legislation are first introduced. It can also be the place where the effort begins to convince regulators that there are two food systems and that one-size-fits-all food safety regulation doesn’t work.

Food safety professionals have done a great job improving safety in areas of the industrial food system; often when dealing with multiple producers/distributors and multiple countries in an investigation–thankless work. Laws and policies contributing to an increase in local food production would make their jobs easier.

The post A Tale of Two Food Systems appeared first on Real Milk.

Two days prior, on March 19, Herbert signed Senate Bill 108 (SB 108), legislation increasing opportunities for the permitted sales of raw milk as well as expanding consumer access to the product. It’s been some week for supporters of local food in the state. The mother-daughter team of farmers Symbria and Sara Patterson were the driving force behind both bills. Both pieces of legislation go into effect immediately.

HB 181 allows the unregulated sale of all foods within Utah except raw dairy and meat products direct from the producer to an “informed final consumer.” There are two exceptions to the prohibition on the unregulated sale of meat products. Producers can sell poultry and poultry products under the bill as long as they slaughter less than 1,000 birds a year. Producers of domesticated rabbit meat are also able to sell direct to consumers without regulation “pending approval from the United States Department of Agriculture that the state’s role in meat inspection is preserved”–approval that shouldn’t be more than a formality.

Sales under the bill can be made at a farm, ranch, “direct-to-sale farmers market”, home, office or any location agreed upon between the producer and consumer. The only requirement for producers is that they inform consumers that the food sold has “not been certified, licensed, regulated or inspected by state or local authorities.” If producers are selling at a farmers market, they must display signage indicating this information; producers selling without regulation at the farmers market must be separated from other vendors at the market.

SB 108 allows producers with a permit to deliver and sell raw milk “from a mobile unit where the raw milk is maintained through mechanical refrigeration at 41 degrees Fahrenheit or a lower temperature.” Under prior law licensed dairies could only sell raw milk on the farm or at a retail store if the dairy had a majority ownership interest in the store–only two of the state’s ten permitted dairies meet this requirement.

SB 108 also allows unpermitted dairies to sell up to 120 gallons of raw milk per month direct to the consumer on the farm. Producers selling under this exemption must comply with labeling, recordkeeping, animal health and milk testing requirements; producers must also notify the Utah Department of Agriculture and Food (UDAF) “of their intent to sell raw milk.”

Symbria and Sara Patterson have taken time off from the farm each of the last four legislative sessions to lobby for legislation they have developed promoting unregulated producer-to-consumer direct trade. The Pattersons are respectful but persistent. In 2015 they were successful in getting micro-dairy herdshare legislation passed despite opposition from Utah Farm Bureau, the state dairy industry, and UDAF. In 2016 and 2017 they worked on food freedom legislation that did not make it out of committee–showing the tremendous progress they have made in a short period of time. As the session went on, opposition to HB 181 and SB 108 steadily decreased; HB 181 passed unanimously in the Senate and SB 108 did the same in the House.

The Pattersons have put together a formidable team to work on local food legislation consisting of Representative Marc Roberts, lobbyist Royce Van Tassell and farmer/analyst Paula Milby. Roberts has been the champion of food freedom in the Utah legislature the past four years, patiently staying the course when the opposition to the bills he introduced looked to be overwhelming. He, the Pattersons, Van Tassell and Milby showed a knack this past session for crafting legislation that would minimize opposition while not compromising what they were trying to accomplish. Connor Boyack, the president of the non-profit Libertas Institute, has helped significantly since 2015.

The Pattesons received earlier funding to help their legislative work from the Farm-to-Consumer Legal Defense Fund and State Policy Network but thanks to their formation of the non-profit Red Acre Center (RAC), they are now able to pay for lobbying and other expenses related to legislative efforts through donations to RAC–among expenses is paying for a farm manager when the Pattersons are away lobbying in the capital, Salt Lake City. Their Red Acre Farm in Cedar City operates a thriving vegetable CSA and sells meat and poultry products as well. The RAC is an education and advocacy nonprofit center that holds an annual conference in January; it has quickly become part of the conversation about who the influential organizations are in Utah food and agricultural policy. The Pattersons are building Red Acre Center for the long haul to be part of the political and educational landscape of food and agriculture in the state.

An interesting dynamic in SB 108 was that the bill likely would not have passed without the support of the Utah business empire, Redmond Inc. Redmond is primarily known for its manufacture of salt but it also has a raw milk operation, Redmond Heritage Dairy, that sells raw milk in several stores Redmond owns throughout Utah. Redmond wanted SB 108 to pass so it could deliver around the state. The company was the driver behind 2007 legislation that banned herdshares while allowing the sale of raw milk retail stores by a permitted producer that held a majority ownership interest in the store selling the raw milk. The Pattersons partially rectified the ban on herdshares with the 2015 legislation legalizing micro-dairy herdshare programs; they worked with officials from Redmond on the passage of SB 108.

RAC has joined Redmond, Utah Farm Bureau, the conventional dairy industry and UDAF as a player in Utah food and agriculture legislation. For Red Acre Center it shows the success that can result when you have a few dedicated individuals that don’t take “no” for an answer.

The post Utah Raw Milk and Homemade Food Bills Now Law appeared first on Real Milk.

The FFA allows producers to sell any food (referred to as cottage foods in the legislation) without regulation except meat, dairy and foods with either meat or raw dairy as an ingredient. The FFA gave NDDoH no rulemaking power but that didn’t stop the department from trying to weaken the legislation. NDDoH convened a workgroup after the bill passed last year to draft regulations governing the FFA; the composition of the workgroup was stacked against its members that had supported the legislation.

Last month NDDoH published proposed rules that were an attempt to substitute its judgment for the legislature’s and reduce the number of cottage foods that could be sold without regulation from what the FFA allowed.

The proposed rules prohibited the sale of canned foods such as sauerkraut or pickles if their pH and/or water activity was above a certain level; nothing in the FFA contained this requirement. The rules required that producers sell only whole frozen poultry; nothing in the FFA has this limitation. Moreover, North Dakota has adopted the federal regulation governing the production and sale of poultry which allows the sale of fresh poultry, poultry parts and value-added products such as chicken pot pie and chicken broth.

The proposed regulations would also have prohibited the production and sale of certain dry goods, dehydrated and beverages such as kombucha that are all allowed under the FFA.

Opposition to NDDH was widespread. North Dakota Farm Bureau which had supported the FFA worked to get the department to withdraw the proposed rules. The national nonprofit Institute for Justice also made an impact, pointing out in a letter to NDDH Commissioner Mylynn Tufte by one of its attorneys that under the FFA a state agency could not regulate the preparation or sale of cottage food products.

Dairy farmer LeAnn Harner who heads the advocacy group North Dakota Food Freedom helped coordinate opposition to the rules, Harner, who was instrumental in the passage of the FFA, worked with legislators to move NDDoH to honor the legislative intent that there be no regulation of cottage foods.

The key legislators in getting NDDoH to withdraw the rules were Representative Luke Simons (the sponsor of the FFA) and Representative Aaron McWilliams. In a statement posted on the North Dakota Food Freedom Facebook page, Rep. McWilliams said that he and Rep. Simons had met with Commissioner Tufte along with a representative from the governor’s office and explained to them the legislative intent behind the FFA. McWilliams said, “We discussed what the role of the health department would be with cottage food producers, mainly education.”

On March 20 NDDoH issued a news release stating it was “closing the public comment period and cancelled three hearings inviting comment on proposed cottage food laws [scheduled for March 22nd and 23rd]”–meaning it was withdrawing the proposed rules.

The FFA is staying intact. The department’s bureaucratic power grab came up short.

Governor Burgum with supporters of the North Dakota Food Freedom Act

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Baker operates a custom slaughterhouse on his farm in Missaukee County, mainly slaughtering and processing chickens for some 200 families in his community. He also has a permit from MDARD enabling him to sell chicken and pork raised on his farm and each year pays a renewal fee for the permit. His plan was to keep the permit and continue sales of pork and chicken until he sold the farm.

In July Baker received a letter from MDARD stating that he was being denied a permit to conduct his custom slaughter business because he hadn’t paid his renewal fee. When Baker’s wife Jill produced the canceled check showing he had paid, the department changed its story, now claiming it was denying the permit because Baker refused to let MDARD officials conduct an inspection of his farm during a December 2015 raid of his farm, Baker’s Green Acres (BGA). MDARD had obtained a warrant to search the farm; someone contacted the department to notify it that there was a picture in a magazine story of a chef holding a ham that the story said was produced by BGA. MDARD wanted to search Baker’s premises to make sure the meat he was selling was slaughtered and processed at a USDA facility.

Baker responded to this latest accusation by explaining that he hadn’t refused an inspection but had only asked the inspectors to wait until some friends of his arrived at the farm to observe the proceedings. The inspectors decided to leave rather than wait.

On August 5 MDARD relented and renewed Baker’s permit; before the renewal, an official from the department called a farmer who relied heavily on Baker’s establishment for her meat sales and told her that she couldn’t use the facility at BGA because it wasn’t permitted.

The harassment from MDARD over the permit convinced Baker to move his timetable up on his sales of chicken and pork; on August 27 Baker decided to surrender his permit saying that MDARD’s jurisdiction over his business was like a forced partnership that he no longer wanted to have. It’s the kind of partnership where the farmer supplies the labor and innovation and MDARD supplies the red tape.

Baker said that regulation by MDARD is not about food safety but control; a belief many others hold. He pointed out that bureaucrats should not be able to use their influence to pick winners and losers. He said that he was no longer going to put his family through MDARD’s harassment.

The MDARD permit denial of BGA was retribution for Baker’s successful challenge to the ISO on feral swine issued by the Michigan Department of Natural Resources (DNR) in December 2010. The ISO, which had the strong backing of the Michigan Pork Producers Association prohibited the possession of a number of breeds of swine. When asked to clarify what the ISO meant, DNR issued a declaratory ruling establishing that whether a pig violated the ISO was not going to be determined by whether the pig was living in the wild or outside containment but rather on its physical characteristics. According to the declaratory ruling, a pig could be prohibited if it has either “curly or straight tail structure” or “either erect or folded/floppy ear structure.”

Baker, who was raising heritage breed mangalitsa pigs, filed a lawsuit challenging the constitutionality of the ISO in April 2012. DNR, through the state attorney general, responded to the lawsuit by filing a countersuit of its own, seeking to have Baker’s pigs condemned and destroyed for violating the ISO. Later, after Baker became publicly critical of Michigan Attorney General Bill Schuette for his handling of the case, DNR amended its complaint and sought a court order fining Baker $700,000–$10,000 for each pig Baker owned that it claimed was illegal.

Just weeks before the case was to go to trail, DNR changed its position on Baker’s pigs, now saying they were legal; this shift by the agency resulted in the dismissal of both Baker’s lawsuit and DNR’s countersuit in February 2014. DNR officials did not want the case to go to trial because they knew Baker would expose the declaratory ruling for the sham that it was. DNR subsequently withdrew the declaratory ruling but the ISO is still on the books to this day. As Baker has said many times, there is no evidence that there is a feral swine problem in Michigan.

Even though the focus has been more on DNR and the Michigan Pork Producers Association, MDARD was right in the middle of the creation of the ISO. Nancy Frank, state veterinarian in MDARD’s Division of Animal Industry, had a major role in the creation of the order. MDARD was also responsible for significant losses in Baker’s business because he stood up to the state. Shortly after Baker filed his lawsuit, MDARD employees started contacting restaurants purchasing pork and other products from Baker intimidating them into dropping their business with the farmer; Baker lost almost all of his restaurant accounts. MDARD also worked with the U.S. Department of Agriculture to inform slaughterhouses not to process feral swine, effectively limiting Baker’s access to those facilities.

Food produced at Baker’s Green Acres has never been accused of making anyone sick.

Baker and his family have paid the price for his successful challenge to government and industry’s attempt to create the conditions for cutting out the market share for heritage breed hog farmers. MDARD’s latest harassment was one final message to the farmer that it’s time to move on.

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Reneau, a Weston Price chapter leader and Farm-to-Consumer Legal Defense Fund (FTCLDF) member, has the right temperament and personality to take on government regulators. She doesn’t accept their general assertions of authority, contesting the regulators point by point—asking for specific citations in the law to back up their claims. She gives up ground to regulators grudgingly and is a strong believer that there is a legal distinction between the private and the public distribution of food.

Reneau, along with the Wilsons, manages the Weekly Fig, a private membership association. Among other foods, Weekly Fig distributes meats, eggs, raw dairy and baked goods to its members. On May 4, 2016, an official from TDA attempted to inspect the Weekly Fig’s facility for the storage and distribution of food. TDA had discovered Weekly Fig through the inspection of a neighboring licensed facility in the same complex. Reneau refused to let TDA conduct the inspection of the buyers club facility claiming TDA did not have jurisdiction over her operation. On June 6 counsel for TDA sent Reneau and the Wilsons a warning letter identifying violations the Weekly Fig had allegedly committed, including operating an unlicensed establishment, offering for sale raw juice, and offering for sale raw milk and raw milk products.

An informal hearing was held on the matter June 30 between a representative for Weekly Fig and TDA officials; subsequently, the department sent Weekly Fig correspondence upholding the written warnings against their unlicensed operation of a “food establishment” and their sale of raw milk, putting Reneau and the Wilsons on notice that “future violations of the same or similar sort—i.e. unlicensed operation as a food establishment or sale of raw milk—will be considered grounds for the Department to seek actions for injunction and/or criminal charges.”

With there not being favorable case law on a legal distinction between public and private distribution of food, Reneau took the legislative route to fight back against the threat from TDA. On February 8, 2017, Tennessee State Senator Frank Niceley and State Representative Kevin Brooks introduced, respectively, Senate Bill 651 and House Bill 702, legislation providing that no permit is required to operate “a farm to consumer distribution point” (e.g., food buyers club). The bills were amended to add that the facility must register with the state department of revenue for purposes of paying sales tax ¹ and must agree to only allow deliveries of meats produced by farmers who comply with the Tennessee Meat and Poultry Inspection Act; these are both existing requirements the facility is expected to comply with anyway. On May 11, 2017, SB 651SB 651 was signed into law. Reneau testified at the Senate committee hearing on the bill and, according to Senator Niceley, did a great job. FTCLDF worked on the development of the bill.

SB 651 is a big help for farmers; consumers like their convenience and will go more often to a centrally located buyers club site to spend their food dollar than they would going to a farm. Unless there was an exemption from the permit requirement, many food buyers clubs would not bother having a fixed central location for the distribution of food.

It would be great to end by saying the government is leaving Weekly Fig alone with the new law in place but that hasn’t been the case. Even though state regulatory agencies have stopped bothering the food buyers club ², for the past several months USDA’s Food Safety Inspection Service (FSIS) has been requesting that FSIS personnel be allowed to conduct an inspection of the Weekly Fig facility. FSIS has broad jurisdiction to inspect firms handling meat products but almost never uses it to inspect a facility like the Weekly Fig’s. The agency is asking for customer records detailing meat purchases and sales. The Weekly Fig’s charter prohibits the sharing of member information with anyone.

Reneau doesn’t know who made the complaint to FSIS but it doesn’t look like a coincidence the complaint was made shortly before SB 651 became law. Reneau, as she did with TDA, is contesting FSIS jurisdiction to inspect the facility by requesting that the agency give her specific citations in the law giving it the authority to inspect Weekly Fig; she is not giving FSIS an inch until it does so. To this point the agency has yet to attempt an inspection.

What Reneau and the Wilsons have done is to realize the potential consumers have to make changes in the laws governing local food. They have shown it doesn’t take many to make a difference.

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¹ Food sold for human consumption is taxable in Tennessee.

² TDA has stopped pursuing any action against the Weekly Fig over the allegation that it was selling raw milk. The Weekly Fig does not sell raw milk and raw milk products, rather it distributes them to its members pursuant to a herdshare agreement; herdshare contracts are legal in Tennessee.

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