Lawline:  Counseling the Local Food Movement Part 1
Upcoming SlideShare
Loading in...5
×

Like this? Share it with your network

Share

Lawline: Counseling the Local Food Movement Part 1

  • 1,610 views
Uploaded on

This presentation was given on October 24, 2013 to Lawline. It is Part 1 or a 2 Part series on "Counseling the Local Food Movement." It gives and overview and background of direct farm marketing,......

This presentation was given on October 24, 2013 to Lawline. It is Part 1 or a 2 Part series on "Counseling the Local Food Movement." It gives and overview and background of direct farm marketing, cottage food operations, liability and insurance. You can listen to the presentation and get a FREE CLE from Lawline here: http://bit.ly/15609Rj

  • Full Name Full Name Comment goes here.
    Are you sure you want to
    Your message goes here
    Be the first to comment
No Downloads

Views

Total Views
1,610
On Slideshare
1,543
From Embeds
67
Number of Embeds
4

Actions

Shares
Downloads
1
Comments
0
Likes
1

Embeds 67

http://rinckerlaw.com 60
http://cloud.feedly.com 4
http://core.traackr.com 2
http://www.rinckerlaw.com.php53-14.ord1-1.websitetestlink.com 1

Report content

Flagged as inappropriate Flag as inappropriate
Flag as inappropriate

Select your reason for flagging this presentation as inappropriate.

Cancel
    No notes for slide
  • This is very restrictive

Transcript

  • 1. Part 1: Counseling the Local Food Movement Lawline October 24, 2013 By Cari B. Rincker, Esq.
  • 2. My Background • Grew up on a beef cattle farm in Central Illinois • Education – A.S. in Agriculture from Lake Land College – B.S. in Animal Science from Texas A & M – M.S. in Ruminant (Beef Cattle) Nutrition from University of Illinois
  • 3. My Background • J.D. from Pace Law School (2007) – Certificates in Environmental Law & International Law • Associate at Budd-Falen Law Offices in Cheyenne, Wyoming (2008-2009) – Environmental Law, Property Law, Land Use & Federal Lands – Worked with “cowboys” Cattle branding in Casper, Wyoming
  • 4. My Background • Have my own food and agriculture law practice in New York City • Chair of the American Bar Association, General Practice, Solo & Small Firm Division’s Agriculture Law Committee • My food and agriculture client base – Farmers to ranchers – Small to mid-size agri-business – Food entrepreneurs
  • 5. Overview • Direct Farm Marketing • Cottage Food Operation Law • Liability • Insurance
  • 6. Direct Farm Marketing
  • 7. What is Direct Farm Marketing? • Direct farm marketing refers to a method of marketing when a farmer sells his/her farmgrown food product directly to the consumer instead of a wholesaler or retailer. • Types: – – – – Farmers’ markets Roadside stands On farm stands Community Supported Agriculture (“CSA”) • Subscribers for a fruit, vegetable, dairy, meat, egg, and/or homemade product share (e.g., pies) (C) Cari Rincker, 2013 7
  • 8. Advantages of Direct Farm Marketing • It allows farmers to sell the food they raise directly to consumers eliminating the middle man (thus, giving the farmer a greater portion of the revenue); • It offers consumers a way to buy fresh local farm products directly from the producer; • It keeps dollars spent on farm products in the local community; • It helps facilitate consumer education in local agriculture industries; and • It helps a consumer build a relationship directly with the agricultural producer. (C) Cari Rincker, 2013 8
  • 9. Overview of Direct Farm Marketing Sarah A. Low and Stephen Vogel, “Direct and Intermediated Marketing of Local Foods in the United States,” USDA Economic Research Service Report 128 (November 2011). • Based on a 2008 Agriculture Resource Management Survey (C) Cari Rincker, 2013 9
  • 10. So What Exactly is “Local Food?” • In the ERS study, directto-consumer and intermediated marketed channels (e.g., farm-torestaurant, school, grocery store) were considered “local foods.” • Please note that there is not legal definition for a “local food.” (C) Cari Rincker, 2013 10
  • 11. Historical Trends in Direct Farm Marketing • Between 1978 to 2007, 5.5% of farm sold food direct to the consumer – 0.3% of total farm sales – Peak in 1982 due to the 1976 Farmer-to-Consumer Direct Marketing Act • Fostered direct marketing • Provided technical assistance to farmers via agriculture extension • Between 1992 and 2007, the number of farmers selling direct to consumer increased by 58% – $1.2 billion (77% increase) ERS article at 2 (C) Cari Rincker, 2013 11
  • 12. Direct-to-Consumer Outlets • Types: – – – – Farmers’ markets Roadside stands On- farm stand Community Supported Agriculture (“CSA”) • 2008 Study – 71,200 farms • 81% small local farms (less than $50K gross sales) • 14% medium-sized farms ($50K$249,999) • 5% large farms ($250K +) – $877 million in sales ERS article at 3-4 (C) Cari Rincker, 2013 12
  • 13. Intermediated Outlets • Types: – Farm-to-restaurant – Farm-to-grocery store – Farm-to-institution (school or government) • Data: – 13, 400 farms – $2.7 billion in sales (compare to direct-toconsumer - $877 mil) ERS article at 3 (C) Cari Rincker, 2013 13
  • 14. Table 1 Summary Item Medium Farms ($50K-$249,999 gross sales) Large Farms ($250K + gross sales) Number of Farms with 86, 726 Local Food Sales 15,202 5,301 Ave. Ratio of Local Food Sales to Total Sales 68.8% 67.2% 57.5% Direct-to-Consumer Only 72.1% 46.5% 31.0% Intermediated Channels Only 11.3% 10.4% 37.1% Average dollars marketed through either direct or intermediate per farm $9,768 $72,312 $352,375 ERS article at 5 Small Farms (less than $50K gross sales) (C) Cari Rincker, 2013 14
  • 15. Summary Points • Small farms are more likely to market direct-to-consumer because it is more difficult to generate enough volume for distributors and institutions that demand higher volumes of food • Intermediated outlets require less labor • Roadside stands and farmers’ markets accounted for about 80% of the direct to consumer outlets • On average, farmers traveled 30.7 miles to the farmers’ market • Consumers acquaint the public face of “local foods” with farmers using directto-consumer outlets – But 60% of local food passes through intermediate channels (C) Cari Rincker, 2013 ERS article at 4-7 15
  • 16. Table 2 : Marketing Channels Item Small Farms (less Medium Farms ($50K- Large Farms than $50K gross sales) $249,999 gross sales) ($250K + gross sales) Roadside Stands 34.1% 24.9% 23.7% Farmers Markets 34.6% 24.9% 23.7% On Farm Stores 8.3% 17.4% 15.7% CSAs 1.1% 2.5% 1.4% Intermediated Outlets 22.0% 29.3% 45.0% ERS article at 6 (C) Cari Rincker, 2013 16
  • 17. What Commodities are Being Produced? Sales Vegetable, Fruit and Nuts Livestock and Field Crops Other (C) Cari Rincker, 2013 ERS article at 7 17
  • 18. Vegetable, Fruit and Nut Farms • Operate fewer acres while generating higher gross sales per acre than field crop or livestock farms – Average of 149 acres yielding $590 per acre – Average U.S. farm is 349 acres yielding $304 per acre • East vs. West • Soil Type (C) Cari Rincker, 2013 18
  • 19. Table 3: Farms with Local Food Sales vs. Non- Local Food Sales Item Farms with Local Food Sales Farms with No Local Food Sales Ages of Primary Operator 57.2 57.8 Beginning Farmers (less than 10 yrs of experience) 25.4% 23.3% Years of Experience* 23.4 25.9 Years of Education* 14.0 13.2 Internet Use* 69.9% 63.4% *Statistically Significant (P < 10% or less) ERS article at 8 (C) Cari Rincker, 2013 19
  • 20. Table 3: Farms with Local Food Sales vs. Non- Local Food Sales Item Farms with Local Food Sales Farms with No Local Food Sales Farming as Primary Occupation* 58.3% 44.6% Full-time equivalent operator 1.3 jobs per farm* .9 One or both spouses work off-farm job 57.3% 61.4% Average off-farm labor income* 36,739 44,196 *Statistically Significant (P < 10% or less) ERS article at 8 (C) Cari Rincker, 2013 20
  • 21. Local Food Operators • 30% more likely to list his/her primary occupation as farming • Household members devote more time to farming – 40% more operator work to farming = 1.3 full-time equivalent • Full-time equivalent is 2,000 hours annually – Earn 17% percentage less in off-farm income • Less time to work an off-farm job ERS article at 8-9 (C) Cari Rincker, 2013
  • 22. Location of Farms Selling Local Food • Regionally – Highest in Northeast, West Coast, and around selected metropolitan areas – Neighborhood effect – More popular in regions that produce fruits and vegetables • West Coast, for example, produces 56% of U.S. vegetables, fruits, nuts and specialty crops • West coast has long standing farmers’ markets dating back to 1970’s • 85% of West Coast local sales were through intermediated channels – Concentration of young farmers in the West Coast ERS article at 10-11 (C) Cari Rincker, 2013 22
  • 23. Location of Local Food Sales • Highest in Urban areas – 50% local food sales in metropolitan counties (e.g., NYC) – 30% local food sales adjunct to metropolitan counties (e.g., Long Island) • Why – Population – Dense farmers’ markets – Access to labor/ transportation networks – Infrastructure • Larger local food farms are more likely to be located in remote, rural areas (50.1%) ERS article at 12 (C) Cari Rincker, 2013 23
  • 24. Summary Stats • Marketing of local foods grossed $4.8 billion in 2008 – Mostly intermediated channels • Small farms with $50K or less in annual sales accounted for 81% of local food sales – More likely to use direct farm marketing methods – 10% exclusively used direct marketing methods • Large farms represented 5% of all local food sales – Averaging $770K in local food sales per farm – 93% of the value of local food sales marked through intermediate channels (C) Cari Rincker, 2013 24
  • 25. Direct Farm Marketing of Food Products • Contract Law • What can be sold in New York via Direct Marketing • Sanitation requirements • Community Supported Agriculture • Farmers’ Markets (C) Cari Rincker, 2013 25
  • 26. Contract Law • Typically, direct marketing transactions take place with oral agreements – Agriculture is a handshake culture • However, Article 2 of the Uniform Commercial Codes applies to the Sale of Goods – Section 2-201 of UCC requires to be in writing for the sale of goods over $500 in order to be enforceable – Food lawyers can (and should) be hired to write simple, straightforward contracts for direct marketing transactions (C) Cari Rincker, 2013 26
  • 27. What Can be Sold via Direct Marketing? • This is a state law issue. Differences from state to state. • In New York, farms are permitted to sell the following products direct-to-consumer so long as they are not considered a “retail food store” under Article 17 of NY Agric. & Mkts Law: – – – – – – Unprocessed fruits and vegetables, Eggs (if clean and refrigerated at 45° F), Grains, Legumes, Honey, and Maple Syrup. See New York State Department of Agriculture, “Sanitary Regulations for Direct Marketing,” available at http://www.agriculture.ny.gov/FS/industry/sanitary.html. (C) Cari Rincker, 2013 27
  • 28. What Can be Sold via Direct Marketing? • Additionally, NYSDAM permits direct marketing farm businesses to sell certain highly perishable products like meat and dairy products (including hard and soft cheeses), if the products are: – Processed at an approved food processing facility; – Prepackaged and properly labeled; and – Kept at required cold temperatures to prevent spoilage or contamination. See New York State Department of Agriculture, “Sanitary Regulations for Direct Marketing,” available at http://www.agriculture.ny.gov/FS/industry/sanitary.html. (C) Cari Rincker, 2013 28
  • 29. What Cannot Be Sold via Direct Farm Marketing? • Home-canned or jarred fruits and vegetables, pickled products, sauces, relishes and other low-acid foods (unless manufactured "under an approved processing method at an inspected facility); • Cream, custard, pumpkin, meat or other single-crust pies or cream or cheese-filled baked goods (unless prepared in an approved, inspected baking facility, packaged and properly refrigerated); and • Any other prepared foods made with highly perishable ingredients for immediate consumption or reheating (unless manufactured and vended under proper food processing and vending licenses). See New York State Department of Agriculture, “Sanitary Regulations for Direct Marketing,” available at http://www.agriculture.ny.gov/FS/industry/sanitary.html. We will talk about cottage food operation law in a little bit. (C) Cari Rincker, 2013 29
  • 30. NYSDAM Inspections • Even though farmers selling directly to consumers are subject to a food safety inspection from NYSDAM, if the producer is only selling raw fruits/veggies, eggs, grains, legumes, honey and/or maple syrup, then NYSDAM typically will only inspect these products if it receives a consumer complaint. • Farmers selling more highly perishable products are inspected more often by NYSDAM. (C) Cari Rincker, 2013 30
  • 31. Processing Roadside stands, on-farm outlets and farmers’ markets may not use packaging, cutting, slicing or portioning of fruits and vegetables, meat, dairy products or ready-to-eat food unless the proper sanitary conditions are met for “retail food stores” under Circular 962 “Rules and Regulations Relating to Retail Food Stores” (C) Cari Rincker, 2013 31
  • 32. Farmers Markets (C) Cari Rincker, 2013 32
  • 33. The Definition of a Farmers’ Markets • According to Prof. Neil Hamilton, a farmers’ market is: – Farmers selling produce and food they raise or create, – To individual customers, – At a temporary location, often on public property (e.g., street or parking lot), – On a periodic basis (typically once or twice a week), – For a set period of time (typically 3 to 4 hours), – During the local growing season (usually 5 or 6 months), and – Operated by a government or non-profit organization. (C) Cari Rincker, 2013 33
  • 34. Market Rules • Farmer-Vendors usually receive a copy of the Market Rules (or “Statement of Rules” for the Farmers’ Market) – It is the contract between the farmer and farmers’ market • Discusses all the key terms – – – – – Application process Rent/Fees Approval of vendors and products Carrying crafts Whether farmers can sell products raised by other farms – Category of products allowed – Transfer/Change in ownership (C) Cari Rincker, 2013 34
  • 35. Market Rules • Market Rules (Cont.) – Enforcement Process – Farm Visit/Inspection – Special food sanitation/safety requirements – Whether sampling is allowed – Indemnification Clause – Length of the market (typically a 5-6 mo. Span) – Location of the farmers’ markets – Who is the Market Manager? – Market operational procedures – Organizational structure – Necessary permits/documentation – Whether peddlers are allowed (reselling food purchased at wholesale) (C) Cari Rincker, 2013 35
  • 36. Market Rules • Market Rules (Cont.) – Proof of Insurance – Farmers’ list of products that will be sold – Whether prepared or processed food may be sold – Logo use of the Sponsor – Criteria for selecting vendors – Nutrition programs (e.g., SNAP, WIC) – Alternative Dispute Resolution – Payment – Choice of Law (C) Cari Rincker, 2013 36
  • 37. Questions for Vendors to Consider Before Joining a Farmers Market • Who sponsors the farmers’ market? • How long has the farmers’ market been established? • What is the expected crowd for the farmers’ market (quantity of people and geographic reach)? • What is the application fee and/or procedures? See Neil Hamilton, “Farmers’ Markets Rules, Regulations and Opportunities” (June 2002) and NEIL HAMILTON, THE LEGAL GUIDE FOR DIRECT FARM MARKETING (1999). (C) Cari Rincker, 2013 37
  • 38. Questions for Vendors to Consider Before Joining a Farmers Market • Do vendors pay seasonally, monthly or weekly flat fees and/or a percentage of gross sales? • Who owns/rents the land on which the farmers’ market is located? • Who is responsible in case of slipand-fall accidents or injuries to shoppers? • Which areas of the farmers’ market get the most traffic? See Neil Hamilton, “Farmers’ Markets Rules, Regulations and Opportunities” (June 2002) and NEIL HAMILTON, THE LEGAL GUIDE FOR DIRECT FARM MARKETING (1999). (C) Cari Rincker, 2013 38
  • 39. Questions for Vendors to Consider Before Joining a Farmers Market • Who has the authority to decide which farm sets up in which location? Is there an additional fee for preference? • Is the market a “producer only” market or does the market allow for wholesale peddlers or sale of food raised by other farmers? • Can vendors provide free samples to consumers? See Neil Hamilton, “Farmers’ Markets Rules, Regulations and Opportunities” (June 2002) and NEIL HAMILTON, THE LEGAL GUIDE (C) Cari Rincker, 2013 FOR DIRECT FARM MARKETING (1999). 39
  • 40. Questions for Vendors to Consider Before Joining a Farmers Market • What is the penalty (if any) for violating a market rule? • What is the penalty, if any, for missing a market day? • If a vendor is forced to leave the market or is unable to continue to participate, is any portion of the fee/rent refundable? • What are the dispute resolution procedures, if any? In other words, what are the procedures if there is an alleged violation of the market rules? See Neil Hamilton, “Farmers’ Markets Rules, Regulations and Opportunities” (June 2002) and NEIL HAMILTON, THE LEGAL GUIDE (C) Cari Rincker, 2013 FOR DIRECT FARM MARKETING (1999). 40
  • 41. Questions for Vendors to Consider Before Joining a Farmers Market • Does the market have all the necessary local business permits and/or licenses? • Can the vendor ask for copies of said permit and/or licenses? • Is the farmers’ market approved to participate in the WIC Farmers’ Market Nutrition Program (“FMNP”)? See Neil Hamilton, “Farmers’ Markets Rules, Regulations and Opportunities” (June 2002) and NEIL HAMILTON, THE LEGAL GUIDE FOR DIRECT FARM MARKETING (1999). (C) Cari Rincker, 2013 41
  • 42. Questions for Vendors to Consider Before Joining a Farmers Market • What food products may be sold at the farmers’ market (e.g., meat, poultry, eggs, homemade processed foods)? • Does the farmers’ market itself carry its own insurance in case of accidents? • What type of insurance does the farmers’ market expect vendors to have (e.g., 1 mil. face value of commercial insurance) and what proof of insurance must be provided to the market? See Neil Hamilton, “Farmers’ Markets Rules, Regulations and Opportunities” (June 2002) and NEIL HAMILTON, THE LEGAL GUIDE FOR DIRECT FARM MARKETING (1999). (C) Cari Rincker, 2013 42
  • 43. Questions for Vendors to Consider Before Joining a Farmers Market • Are there special food labeling requirements other than what is already required under New York and federal law (if applicable)? • How quickly are Electronic Benefit Transfer (“EBT”) payments received? • What does the farmers’ market do to help promote both the farmers’ market and its vendors? For example, will the vendors be listed on its website? See Neil Hamilton, “Farmers’ Markets Rules, Regulations and Opportunities” (June 2002) and NEIL HAMILTON, THE LEGAL GUIDE FOR DIRECT FARM MARKETING (1999). (C) Cari Rincker, 2013 43
  • 44. Questions for Vendors to Consider Before Joining a Farmers Market • Do the market rules require the farmer to actually attend the market or can vendors send employees/independent contractors to do the selling? • Does the farmers’ market require the farmer/vendor to submit a plan before the market season begins listing what produce will be sold and in what approximate volume? • Can the market officials visit a vendor’s farm to inspect the operation and/or its records? See Neil Hamilton, “Farmers’ Markets Rules, Regulations and Opportunities” (June 2002) and NEIL HAMILTON, THE LEGAL GUIDE FOR DIRECT FARM MARKETING (1999). (C) Cari Rincker, 2013 44
  • 45. Community Supported Agriculture (C) Cari Rincker, 2013 45
  • 46. CSA Agreements • Rarely Used (Should be used more often) • Contract between the farmer and the subscriber • It should state – – – – – – How long is the growing season Types of share(s) How is a share defined Price/ Payment Methods Delivery or pick-up Subscriber’s sharing both risk and reward of harvest – Forfeited products – Communication – Volunteer Requirements (C) Cari Rincker, 2013 46
  • 47. Cottage Food Operation Law
  • 48. Interaction Between Article 20-C Licenses and Cottage Food Operations in New York New York applies an “exemption approach” to cottage food operations by exempting home-processed food from the typical requirements of a commercial kitchen under Article 20-C of the NYS Agric. & Mkts § 251-z-1 et sec. (C) Cari Rincker, 2013 48
  • 49. Regulation of Food Establishments • States have the primary authority over the health and wellbeing of their residents – Thus, state and local governments establish laws addressing the production of food at “food establishments” (C) Cari Rincker, 2013 49
  • 50. What is a “Food Processing Establishment” in New York? • “*A+ny place which receives food or food products for the purposes of processing or otherwise adding to the value of the product for commercial sale…” See NY Agric. & Mkts § 251-z-2[1]. – Exemptions: • Establishments that process/manufacture food that are sold exclusively at retail for consumption on the premises; • Bottled water facilities; • Establishment which are covered by Article 4 (Dairy Products), Article 4-A (Frozen Desserts), Article 5-B (Sale of Meat), Article 5-D (Sale of Poultry and Poultry Products), Article 17-B (Licensing of Food Salvagers) and Article 21 (Milk Control); • Establishments under federal meat, poultry or egg product inspection; • Establishments that are engaged solely in the harvesting, storage or distribution of one or more raw agricultural commodity; • Home-based processed food if certain conditions are satisfied. (C) Cari Rincker, 2013 50
  • 51. Applying for an Article 20-C License • If a food entrepreneur does not fit under the cottage food operation exemption in New York and must obtain an Article 20-C license, section 251-z-3 sets forth application requirements which include proof of the following: – That he/she has good character; – That he/she has adequate experience or competency; – That the establishment has adequate facilities and equipment for the business conducted; and – That the establishment can maintain cleanliness so that the product will not be adulterated. • The applicant must also pay $400 every 24 months. • The license period varies according to the applicants last name as set forth in the statute. (C) Cari Rincker, 2013 51
  • 52. Suspending or Revoking Licenses • Under Section 251-z-5, NYSDAM may decline to grant a new license or renewal, suspend or revoke an Article 20-C license based on one of the following reasons: – False or misleading statement in the application; – Insufficient facilities or equipment to maintain adequate sanitation for activities; – Establishment is not maintained in a clean and sanitary condition; – Maintenance of the establishment is such where the food (product) may be adulterated; – Establishment has failed or refused to produce requisite records or other information sought; – The applicant/licensee or any officer, director, partner or owner of 10% or more shares, or any other person in management, has failed to comply with the statute; or – The applicant/licensee, officer, director, partners, stockholder, or any other person in management has been convicted of a felony. (C) Cari Rincker, 2013 52
  • 53. Requirements of 20-C Licensees • Record Keeping: Under Section 251-z7, licensees are required to keep such records as required by NYSDAM. • Inspections: Under Section 251-z-8, NYSDAM must have access to inspect the premises during all reasonable hours “where food or food products are being manufactured, packaged, processed or stored, or where food or food products are being bought, sold or handled.” • Education: Licensees are required to complete an approved food safety education program under Article 20-C. (C) Cari Rincker, 2013 53
  • 54. Cottage Food Operation Law CARI B. RINCKER AND PAT B. DILLON, “FIELD MANUAL: LEGAL GUIDE FOR NEW YORK FARMERS AND FOOD ENTREPRENEURS” (2013). (Chapter 22). Harvard Food Law and Policy Clinic, “Cottage Food Laws in the United States” (August 2013). (C) Cari Rincker, 2013 54
  • 55. Cottage Food Operation Law • Growth in small-scale food production, including individuals producing nonpotentially hazardous foods made in their home kitchen outside of expensive permitting and licensing procedures – Many states have exemptions for cottage food operations (C) Cari Rincker, 2013 55
  • 56. Cottage Food Operation Law • Advantages – Provides community residents with locally produced food – Encourages food production if creating cost-effective outlets to create value-added products from excess fruits and vegetables – Increases money that stays in the local economy (C) Cari Rincker, 2013 56
  • 57. West: • Alaska • Arizona • California • Colorado • Montana • Nevada • New Mexico • Oregon • Utah • Washington • Wyoming East: • Delaware • Maine • Maryland • Massachusetts • New Hampshire • New York • North Carolina • Pennsylvania • Rhode Island • South Carolina • Vermont • Virginia Allow Cottage Food Operations South: • Alabama • Arkansas • Florida • Georgia • Kentucky • Louisiana • Mississippi • Texas Midwest: • Illinois • Indiana • Iowa • Michigan • Minnesota • Missouri • Nebraska • Ohio • Tennessee • Wisconsin 57
  • 58. States that Don’t Allow for Cottage Food Operations • • • • • • • • • Connecticut District of Columbia Hawaii Idaho Kansas New Jersey North Dakota Oklahoma West Virginia Harvard at 5 (C) Cari Rincker, 2013 58
  • 59. Survey of U.S. Cottage Food Operation Law • Although 2/3rds of the states have cottage food operation law, there is little uniformity among the laws • Some states restrict home-based food processing activities to a very narrow category of processors, such as onfarm only – Delaware, see Del. Code Tit § 3 100. – Kentucky, see Ky. Rev. Stat. §§ 217.13637. – New Hampshire, see N.H. Rev. Stat. § 143A:12 – Rhode Island, see R.I. Gen Laws § 2127-6.1 Harvard at 6 (C) Cari Rincker, 2013 59
  • 60. Rhode Island …“farm home food manufacture and the sale of products of farm home food manufacture at farmers’ markets, farmstands, and other markets and stores operated by farmers for the purpose of the retail sale of the products of Rhode Island farms” provided that “the farm home food products [are] produced in a kitchen that is on the premises of a farm.” See R.I. Gen Laws § 21-27-6.1 (Emphasis added) Harvard at 8 (C) Cari Rincker, 2013 60
  • 61. Survey of U.S. Cottage Food Operation Law • Some states cap the allowable sales at a low amount, such that inhome processing activities can only be a hobby and not a viable launching pad for a traditional food processing business – See Minn. Stat. 28A.15(10)(a) (restricting sales to $5K) (C) Cari Rincker, 2013 61
  • 62. Survey of U.S. Cottage Food Operation Law • Some states are relatively easy to find with clear requirements while other states’ cottage food laws are hidden with no clear direction – New York’s cottage food operation law is found online at the NYS Department of Agriculture & Markets’ website (C) Cari Rincker, 2013 Harvard at 6 62
  • 63. How Cottage Food Operation Laws Are Passed • Usually, it starts with legislation. Then the statute directs a state government agency to enact regulations – Example: Maryland passed a cottage food operation law in 2012 • Maryland Department of Health was directed to adopted regulations. See Md. Code § 21-220.1. • However, some states establish cottage food rules through regulations only – Example: Georgia’s regulations were adopted by the Georgia Department of Agriculture. See Ga. Comp. R & Regs § 40-7-19-.01-.10 • Sometimes cottage food law is implemented through an agreement between a state department of agriculture and state department of health and then posted on the website – Example: North Carolina, New York Harvard at 7 (C) Cari Rincker, 2013 63
  • 64. FDA Model Food Code • FDA has established a “model food code” that may be adopted by the states – Does not allow for any processing to take place outside of commercial kitchens. See FDA Food Code § 1-201.10 – States that have adopted this FDA Food Code in its entirety did not have an exemption for cottage food operations, unless it adopted one • Example: Missouri said that local government may allow for home-based food processing. See Mo. Cod Regs. Title 19 § 20-1.025(1)(B)(5). (C) Cari Rincker, 2013 64
  • 65. FDA Model Food Code • Usually states that all locations where food is produced or sold for pay are “food establishments” – Subject to licenses, permits, sanitation requirements, inspections, and commercial kitchen requirements – There are a few important exemptions to this definition of “food establishments” • Charity bake sales and religious events – Required, by law, to inform the consumer that the products were made in an unregulated and uninspected home kitchen – Allows for the production of non-potentially hazardous goods (e.g., baked goods, jams, jellies, granola, popcorn, coffee, and tea) Harvard at 9 (C) Cari Rincker, 2013 65
  • 66. 5 Typical Restrictions for Cottage Food Operations Types of Cottage Food Products Allowed Limits on Where Cottage Food Products Can Be Sold Required Registration, Licenses and/or Permits Limits on Total Sales Food Labeling Requirements (C) Cari Rincker, 2013 66
  • 67. Types of Food Products Allowed • Typically restricted to foods that are “not potentially hazardous.” – Some states just say “not potentially hazardous” – Most states enumerated these foods Example (Arkansas) “…non potentially hazardous foods, including without limitation: (A) Bakery products, (B) Candy, (C) Fruit butter, (D) Jams, (E) Jellies, and (F) Similar products specified in rules adopted by the [Arkansas] Department of Health.” See Ark. Code § 20-57-201(1) Harvard at 10 (C) Cari Rincker, 2013 67
  • 68. Types of Foods Allowed California also enumerates allowed goods: – Baked goods without cream, custard, or meat fillings, such as breads, biscuits, churros, cookies, pastries, and tortillas; – Candy, such as brittle and toffee; – Chocolate‐covered nonperishable foods, such as nuts and dried fruit; – Dried fruit; – Dried pasta; – Dry baking mixes; – Fruit pies, fruit empanadas, and fruit tamales; – Granola, cereals, and trail mixes; – Herb blends and dried mole paste; – Honey and sweet sorghum syrup; – Jams, jellies, preservers, and fruit butter that comply with federal standards for fruit butter; – Nut mixes and nut butters; – Popcorn; – Vinegar and mustard; – Roasted coffee and dried tea; Cal. Health & Safety Code § 114365.5 – Waffle Codes and pizelles. Harvard at 10-11 (C) Cari Rincker, 2013 68
  • 69. Types of Foods Allowed • Some states have more specific allowances or restrictions – Wisconsin’s “pickle bill” only allows for processed fruits and vegetables that meet a certain pH value, such as pickled fruits and vegetables, sauerkraut, salsas, chutn eys, jams, jellies, and applesauce. • See Wis. Stat. § 97.29(2)(b)(2). – Vermont only allows for baked goods, breads, cakes, pies or other food products made from flour. • See Vt. Stat. § Title 18 4451. Harvard at 11 (C) Cari Rincker, 2013 69
  • 70. FDA Code Definition of “Potentially Hazardous” • FDA Model Code has a detailed and technical definition, referring to the acidity in the food – Focus is whether the food supports “pathogenic microorganism growth or toxic formation.” – If food has potential to cause harm when not kept under proper temperature and storage conditions – Examples: • • • • • • • • • • • • Meat Dairy products Shellfish Mushrooms Low-sugar jams and jellies Cooked vegetables Low-acidity pickles and salsa Cut melons Cut tomatoes Untreated garlic-in-oil mixtures Baked goods subject to spoilage (e.g., cream-filled pastries) Raw seed sprouts (C) Cari Rincker, 2013 70
  • 71. New York Cottage Food Law Under NYS Agric. & Mkts Regulations Section 276.3(a)*3+, a “*h+ome processed food” includes “any food processed in a private home or residence using only the ordinary kitchen facilities of that home or residence which are also used to prepare food for the owner thereof, his family, nonpaying guests and household and farm employees who reside therein, but shall exclude potentially hazardous foods [as defined in the regulation] or thermally processed lowacid foods packaged in hermetically sealed containers [under Part 277] and acidified food packed in closed containers including but not limited to pickles and relishes prepared from low-acid fruits, vegetables, poultry, meat, meat products, fish or seafood.” (Emphasis added). No commercial kitchen equipment can be used (C) Cari Rincker, 2013 71
  • 72. New York Cottage Food Law • Restricted to the following goods – Bakery products (e.g., bread, rolls, cookies, cakes, brownies, fudg e, and double-crust fruit pies) for wholesale marketing or retail agricultural venues such as farms, farm stands, farmers markets, green markets, craft fairs and flea markets; – Traditional jams, jellies, and marmalades made with high acid/low pH fruits; – Repacking/blending dried spices or herbs; – Snack items such as popcorn, caramel corn and peanut brittle; and, – Candy (excluding chocolate). See NFSI-898d, “Home Processing” Fact Sheet. (C) Cari Rincker, 2013 72
  • 73. New York Cottage Food Law • If the product requires refrigeration then it is not allowed to be produced under the home processor exemption. New York views food products that may require refrigeration as potentially hazardous. Examples of prohibited items include the following: – – – – – – – – – – Fruit/ Vegetable Breads, Pickled or Fermented Foods, Cheesecake, Cream Filled Pastries, Meat, Fish, or Poultry Products, Vegetable Oils, Blended Oils, Garlic and/or Herb in Oil Mixtures, Wine Jellies, Chutneys, Fruit Butters, Cooked or Canned Fruits or Vegetables, Cheese, Yogurt, Fluid Dairy Products, and, Sauces, Salsas, Marinades. See NFSI-898d, “Home Processing” Fact Sheet. (C) Cari Rincker, 2013 73
  • 74. 3 Generally Types of Cottage Food Products Allowed Broad List of Allowed Foods Limited List of Allowed Foods Other (More Restrictive) • “non-potentially hazardous foods, including” … • “non-potentially hazardous foods, limited to …” • No home canned goods made using pressure cooker • Primary ingredients must be grown by microprocessor • Pickled products only Harvard at 11 (C) Cari Rincker, 2013 74
  • 75. Broad List of Allowed Foods • Alabama • Alaska • Arizona • California • Delaware • Florida • Georgia • Iowa • Massachusetts • Michigan • Mississippi • Missouri • Nebraska • New Hampshire • New Mexico • New York • North Carolina • Pennsylvania • Rhode Island • South Carolina • South Dakota • Tennessee • Texas • Utah • Virginia • Washington • Wyoming Harvard at 11 Limited List of Allowed Foods • Arkansas • Colorado • Illinois • Montana • Nevada • New Hampshire • Ohio (C) Cari Rincker, 2013 Other (More Restrictive) • Indiana • Kentucky • Louisiana • Maine • Maryland • Minnesota • Oregon • Vermont • Wisconsin 75
  • 76. Limits on Where Cottage Food Products Can Be Sold • Most states restrict the sale to be direct to consumers – Don’t permit sales to restaurants or other retail food establishments – Restricted to sales at: • • • • • Farmers’ markets County fairs Roadside stands On-farm stands/ Producers’ premises Community Supported Agriculture Illinois State Fair Harvard at 12 (C) Cari Rincker, 2013 76
  • 77. Limits on Where Cottage Food Products Can Be Sold • Tennessee: – “may be sold at that person’s personal residence, a community or social event, including church bazaars and festivals, flea markets, or at farmers’ markets located in this state.” Tenn. Code Ann. § 53-8-117(b) – California has two levels of cottage food operations • Class A operations – direct to consumer only • Class B operations – may also sell to restaurants and other retail food establishments See Cal Health & Safety Code § 113758(a). Harvard at 12 (C) Cari Rincker, 2013 77
  • 78. Limits on Where Cottage Food Products are Sold Direct to Consumer Only •Alabama, Alaska •Arizona, Arkansas •Colorado, Delaware •Florida, Georgia •Illinois, Indiana •Iowa, Kentucky •Maryland, Michigan •Minnesota, Mississippi •Missouri, Nebraska •Nevada, New Mexico •Oregon, Rhode Island •South Carolina •South Dakota •Tennessee, Texas •Vermont, Virginia •Washington, Wisconsin •Wyoming Harvard at 12 Indirect Sales Allowed Law is Silent (no (e.g., restaurants, retail food information/requirements) establishments, wholesale) • Louisiana • California • Maine • New Hampshire • Ohio • Pennsylvania (C) Cari Rincker, 2013 • Massachusetts • New York • North Carolina • Utah 78
  • 79. Additional Common Prohibitions Internet Sales Prohibited • Arkansas • Florida • Kentucky • Michigan • Nevada • New Mexico • New York • Texas • Washington Farmers’ Markets or Producer’s Premises • Alabama • Arkansas • Colorado • Delaware • Illinois • Indiana • Kentucky • Maryland • Minnesota • Nebraska • Nevada • New Hampshire • New Mexico • Pennsylvania • Rhode Island • Texas • Vermont • Virginia • Washington • Wisconsin • Wyoming (C) Cari Rincker, 2013 Harvard at 12 79
  • 80. New York Cottage Food Law • Prohibits Internet sales, but farms can use the Internet for communications and marketing – See NFSI-898d, “Home Processing” Fact Sheet. (C) Cari Rincker, 2013 80
  • 81. Why Would Some States Prohibit Internet or Mail-Order Sales? • If the product crosses interstate commerce, then it becomes subject to federal regulations – Restricting Internet sales reduces likelihood that the cottage food will cross state lines • Some states like Georgia specifically allow Internet Sales if purchased by someone in that state. (C) Cari Rincker, 2013 81
  • 82. Required Registration, Licenses, and/or Permits • States vary on whether any license or permit is required – Also vary on what is required on the license or permit application itself (C) Cari Rincker, 2013 82
  • 83. Required Registration, License, and/or Permits States that Have Requirements States with No Requirements • Alaska, Arizona • California, Colorado • Delaware, Georgia • Illinois, Kentucky • Maine, Massachusetts • Nevada, New Mexico • Oregon, Pennsylvania • Rhode Island, Tennessee • Utah, Washington • New York • Alabama, Arkansas • Florida, Indiana • Iowa, Louisiana • Maryland, Michigan • Minnesota, Mississippi • Missouri, Montana • Nebraska, New Hampshire • North Carolina • Ohio, South Carolina • South Dakota, Texas • Vermont, Virginia • Wisconsin, Wyoming Harvard at 13 (C) Cari Rincker, 2013 83
  • 84. Example of Registration, Permit or License Requirements • Alaska requires cottage food operators obtain a business license. See Alaska Admin. Code Tit. 18 § 31.012(a)(4). • Colorado requires a certificate in safe food handling and processing. See Colo. Rev. Stat. § 25-4-1614(1)(c). • Washington requires a food and beverage service worker’s permit. See Wash. Rev. Code § 69.22.030(2). Harvard at 13-14 (C) Cari Rincker, 2013 84
  • 85. Example of Registration, Permit or License Requirements • Utah requires a food handler’s permit. See Utah Code § 4-59.5(4)(a). • Pennsylvania requires inspection of homebased food kitchens. Harvard at 13-14 (C) Cari Rincker, 2013 85
  • 86. New York Requires Registration of Home-Based Kitchens • Cottage food operations must be registered with NYSDAM, Division of Food Safety and Inspection by completing FSI-989c available at http://www.agriculture.ny.gov/FS/consumer/FSI898c.pdf (last visited March 4, 2013). – No Fee • The cottage food operation must disclose to NYSDAM whether the water supply is municipal or a private well. – If the home-based processor is on a private water/well system, then he/she must have a water test analysis performed for Coliform registering with NYSDAM (no more than 3 months old). (C) Cari Rincker, 2013 86
  • 87. New York Cottage Food Law • Even though some cottage food operations are exempt from Article 20-C licensing requirements, it is still subject to NYSDAM inspection requirements and food labeling. regulations. – From a practical standpoint, this is only if there is a problem. (C) Cari Rincker, 2013 87
  • 88. Fees Associated with Permits and Licenses • Usually very cheap, if not free – New York – free – Maine - $20 • Can vary depending on the type of fee – Washington • Inspection fee- $125 • Public health review fee - $75 • Processing fee - $30 (C) Cari Rincker, 2013 Harvard at 14 88
  • 89. Limits on Total Sales • Approximately 50% of the states that allow cottage food operations have a limitation on gross sales per year – Typically between $5K and $50K • Low end ($5K limit) – Louisiana, see Law. Rev. Stat. § 4:9(B). – Minnesota, see Minn. Stat. § 28A.15(10)(a) – Wisconsin, see Wis. Stat. § 97.29(2)(b)(2)(c) • High end ($50K limit) – Texas, see Tex. Health & Safety Code 437.0001(2-b) (C) Cari Rincker, 2013 Harvard at 14 89
  • 90. Limits on Total Sales • Some states’ statutes allow for a gradual increase in sales caps – Michigan, see Mich. Comp. Laws § 289.4102(5) • 2017 - $20K • After 2017- $25K – California, see Cal. Health & Safety Code § 1137558(a). • 2013- $35K • 2014 - $45K • 2015 and thereafter - $50K (C) Cari Rincker, 2013 Harvard at 14 90
  • 91. Limits on Total Sales • Some states place limits on each eligible food item – Colorado has a $5K limit on each item, see Colo. Rev. Stat. § 25-4-161614(2)(e) • $5K for each flavor of jam • $5K for each type of cake • $5K for each type of cookie (C) Cari Rincker, 2013 Harvard at 14 91
  • 92. Limits on Sales • A few states frame their sales restriction based on weekly sales (in terms of dollars or units) – Tennessee limits sales to 100 units per week, see Tenn Comp. R. & Regs. § 0080-0411-0.20 • Unit defined as 1 package of good – Vermont restricts food sales to $125/week (=$6500/year), see VT Stat. Title 18 § 4451. (C) Cari Rincker, 2013 92
  • 93. States with Sales Limits for Cottage Food Operations $500 to $15K $15K to $25K $25K plus Other • Florida • Louisiana • Minnesota • New Hampshire • Vermont • Washington • Wisconsin • Colorado • Iowa • Maryland • South Carolina • Tennessee • Indiana • Michigan • Mississippi • Oregon • Alaska • California • Delaware • Illinois • Nevada • Texas Harvard at 15 (C) Cari Rincker, 2013 93
  • 94. States with No Sales Limits • • • • • • • • • • • • • • • • • • • • Alabama Arizona Arkansas Georgia Indiana Maine Massachusetts Missouri Montana Nebraska New Mexico New York North Carolina Ohio Pennsylvania Rhode Island South Dakota Utah Virginia Wyoming (C) Cari Rincker, 2013 Harvard at 15 94
  • 95. Food Labeling Requirements • Almost all states with cottage food laws have labeling requirements of some kind • Typical requirements include: – Name and address of the producer – Common or usual name or product – Ingredients of product in descending order of predominance by weight – Food allergens – Net weight and volume of the food product by standard measure or numerical count – Date on which the food was processed – Statement similar to the following: “Made in a home kitchen that has not been inspected by the [state] department of agriculture/health.” (C) Cari Rincker, 2013 95
  • 96. Who Does Not Have Food Labeling Requirements? • States with no food labeling requirements for cottage food – Louisiana – Montana – Vermont I took this picture while living in Montana Harvard at 16 (C) Cari Rincker, 2013 96
  • 97. New York Cottage Food Law • In New York, products made in a home-based kitchen should include the following on the label: – name and address of the home processor; – common or usual name of the food; – if the food is fabricated from two or more ingredients, the common or usual name of each ingredient in their order of predominance (except that spices, flavorings and colorings may be designated as spices, flavorings and colorings without naming each, and spices and flavorings may be designated together as flavorings); and – the net weight, standard measure or numerical count. (C) Cari Rincker, 2013 Rincker at 334 97
  • 98. Other Legal Considerations for Cottage Food Operations • May conflict with residential leases • Local zoning code may prohibit commercial activity in residential zones – Variances or special use permits should be sought • Insurance – Typically not covered under homeowner’s or rental insurance – Commercial insurance policy will cover general commercial liability (e.g., slip and fall) – Recall insurance insurance/ or products liability insurance can be obtained to cover food safety risk • Are they a sole proprietor? Should they form a LLC or limited partnership? Think about risk management for client. • Food entrepreneurs should always think about protecting their intellectual property. Rincker at 335 (C) Cari Rincker, 2013 98
  • 99. Liability
  • 100. Liability • 2 Main Types of Liability – Premises Liability – Products Liability
  • 101. Premises Liability • Applicability with Local Food – – – – – Farmers’ Markets Roadside stands Pick-Your-Own Agri-Tourism/ Agri-Tainment On-Farm Sales • • • • Livestock Produce Meat Dairy – Farm Tours – Cooking Classes
  • 102. Premises Liability • Let’s Think Back to Law School Days • Different Standards of Care – Trespassers – Children – Licensees – Invitees • This is what we’ll focus on
  • 103. Premises Liability: Invitees • Landowners owe the highest duty of care to an invitee, or members of the public that enter the land for the purpose of business dealings. • Examples include the following: (1) farmstands, (2) pick-yourown produce, (3) cooking classes, (4) on-farm horse or livestock sales, (5) corn mazes, (6) hay rides, (7) petting zoos, and (8) farm tours.
  • 104. Premises Liability: Invitees • Landowner will be subject to liability for physical harm caused by invitees by a condition on the land if he/she failed to exercise reasonable care and he/she knew or should have known about the harmful condition and it would be expected that the public would not discover the dangerous condition. – Landowners have the duty to warn invitees of potentially dangerous conditions.
  • 105. Premises Liability: Invitees • Landowners who have members of the public come on their property should use barriers to prevent the public from entering areas of the property that may be potentially hazardous. There should be signs warning invitees of potential hazards. My dog, Taylor • Landowners with pets should be particularly mindful of potential injuries (e.g., dog bites).
  • 106. Products Liability • Products liability is the legal responsibility for personal injuries and property damage caused by defective products. – Potential liability attaches to every set of hands that touch a food product until it gets to the consumer. • Farms and food entrepreneurs selling food directly to the consumer increase their likelihood for potential products liability issues.
  • 107. Products Liability • States differ in the products liability theory they employ – New York is a strict liability state. – To illustrate, if a consumer at a pick-your-own farm picks and then consumes berries and becomes ill because the berries were contaminated, a New York court will likely hold the producer strictly liable for the consumer’s injuries. Some products like meat and dairy, have more products liability risk.
  • 108. Common Risk Management Methods • Business Organizations – Limited Partnerships – Limited Liability Companies – Corporations • Insurance – We’ll talk more about this next • Food safety/sanitation
  • 109. Insurance
  • 110. Insurance is a Contract • Drafted in favor of the insurance company • Not all insurance products are the same – Food and agriculture lawyers should review insurance policies for the client to ensure there are not any concerns – Pay attention to the duties of the client under the insurance policy
  • 111. Insurance is a Contract • Insurance Company – Duty to indemnify the insured – Duty to defend the farmer/food entrepreneur in a law suit for a covered risk • Insured – Duty to pay the premium – Duty to cooperate – Duty to disclose toe the insurance company relevant information
  • 112. Duty to Defend • The insurance company’s duty to defend is carried out by hiring an attorney chosen by the company and controlling that attorney’s right to settle. • If the farmer or food entrepreneur is dead set against settling, the insurance company has the right to do so anyway. • Once the insurance company pays out its policy limits, it has no further duty to defend the farmer or food entrepreneur.
  • 113. Insurance is a Risk Management Tool • Put simply, the purpose of an insurance policy is to shift the financial risk of the food and agriculture operation to the insurance company. • The insurance company will pay any covered claim (up to the limit) and defense costs in a lawsuit (including attorneys’ fees and court costs).
  • 114. Insurance is a Risk Management Tool Clients might be tempted to save money on insurance premiums (the cost of the insurance) by hand-selecting only limited coverages that they think they are likely to need with high deductibles (the outof-pocket amount they’re responsible for if a loss occurs).
  • 115. Insurance is a Risk Management Tool Inadequate amounts of insurance that won’t pay out what the farmer or food entrepreneur will need to stay up and running if a loss occurs.
  • 116. Claims-Made vs. Occurrence Based Claims-Made Occurrence-Based • Will only cover the insured for claims made within the window of time the insurance policy is in effect so long as the claim is made within the specified time • Covers anything that happens within a certain window of time and will “pay out” regardless of when the claim is made to the insurance company Educate your client on the type of policy they have
  • 117. Pay Attention to Exclusions • An insurance contract almost always carves out exclusions from coverage. – intentional acts, such as theft by employees – assaults, – alcohol-related events • Other exclusions may relate more specifically to the type of insurance involved. – For example, a typical farmowners policy might not be adequate to insure against losses suffered from the flooding of a nearby creek
  • 118. Know the Type of Coverage Basic Coverage Broad Form Coverage Special Coverage • intended to compensate for losses from causes like fire, lightning, explosion, windstorm, hail, riot or civil commotion, aircraft or vehicle, vandalism, theft, sinkhole collapse, and volcanic action. • include all of the above and adds additional coverage for damage from causes like the weight of ice, snow, or sleet, falling objects and accidental discharges of water. • Includes the same protections in basic and broad coverage • Also offers open peril coverage under which other causes of damage are covered unless they are specifically excluded under the farm policy (e.g., flood loss).
  • 119. Types of Insurance Farmers Comprehensive Personal Liability Policy Commercial Insurance Policy Home Owners/ Renters Insurance Products Liability Insurance Auto Insurance Cyber Liability Insurance Environmental Insurance Pollution Insurance Crop Insurance Livestock Insurance Equine Insurance Special Riders (or Endorsements) The insurance puzzle
  • 120. Farmers Comprehensive Personal Liability (“FCPL”) Policy • A/k/a “Farmowner’s Insurance” • Most farms use a farmowner’s insurance policy to cover the ordinary risks of a farming operation. • This type of policy normally only covers activities ancillary to farming (i.e., not agri-tourism or cottage food operations). • Pay special attention to the exclusions section in this policy to see what is not covered. – Sale of processed vegetables or meat products at a farmers’ market or roadside stand – Injuries to the policyholder or family member – Property damage by the insured him/herself.
  • 121. Homeowner’s/ Renters Insurance • Homeowner’s insurance usually does not cover business activities. • Therefore, clients should consider a commercial policy if they have a home business office, cottage food operation, a rooftop garden, offer in-home cooking classes, or sell produce from their home.
  • 122. Commercial Insurance • A commercial insurance policy or endorsement is appropriate for operations engaging in business outside the scope of the basic farmowners’ insurance policy. – For example, most farmowners’ policies cover products liability for the sale of raw food products, whereas the commercial insurance policy may cover personal injuries (such as slip and falls and other types of injuries not related to defective products) resulting from the sale of processed food products (e.g., slicing vegetables, cutting meat products, making beef jerky). • A commercial insurance policy should be purchased if a business is being run out of a home, has agri-tourism activities, or engages in on-farm poultry slaughter.
  • 123. Products Liability Policy • Products liability policies help provide coverage for liability resulting from an illness or death due to contaminated food products sold by the purchaser. • It is highly suggested that farms involved with the direct marketing of food products to consumers, schools or restaurants have products liability insurance. • Farms selling raw milk should also consider a products liability policy.
  • 124. Crop Insurance • Federal crop insurance is subsidized by the U.S. Department of Agriculture (“USDA”) Risk Management Agency (“RMA”). • It protects the producer against crop losses due to natural disasters such as drought or flood. • It is available for nearly every type of commodity ranging from sweet corn to raisins.
  • 125. Livestock Insurance • There are two types of livestock insurance: – RMA reinsured livestock insurance (similar to the federal crop insurance program) • Natural causes only – private livestock insurance • Wider coverage, including theft • Common with horses
  • 126. Cyber Insurance • This is a fairly new type of insurance, relatively speaking, and it addresses risks associated with doing business over the Internet (or e-Commerce). • Covered risks can include privacy issues, infringement of intellectual property (trademark or copyright infringement), stolen credit card information (from PayPal, Google Checkout or other online credit card processor) or computer viruses.
  • 127. Motor Vehicle Insurance • Food and agriculture operations should pay special attention to their auto insurance policies if vehicles are used to transport goods, livestock or special equipment. • A commercial automobile policy or special rider might be needed.
  • 128. Special Riders/ Endorsements • There are many special activities on agriculture or food operations that require amendments to the underlying policies. • Examples of these special activities may include agri-tourism/agritainment, petting zoos or other activities where the public is in direct contact with animals, equine, custom farm work, on-farm poultry slaughter, production of processed foods, use of ATV’s, and the transportation of frozen genetics (e.g., embryos, semen).
  • 129. Umbrella Insurance • The name “umbrella” improperly infers that umbrella insurance adds coverage in the “holes” of existing insurance policies; instead, umbrella insurance should be viewed as a “top hat.” – It essentially raises your already existing limits and existing coverage. – For example, if you have a $1 million farmowner’s insurance policy with the $2 million umbrella, the umbrella policy would protect the farm against a $2 million court judgment. • Umbrella insurance does not “fill in holes” in your existing insurance policies – it simply increases the limits.
  • 130. How Much Insurance Coverage Does a Farm or Food Entrepreneur Need? • Depends on budget and risk appetite • Most operations should have at least $1 million – Rule of thumb: should be more than the amount of assets that you have • Depends on – Type of operation – Assets to protect – Other risk management techniques
  • 131. Food Safety Modernization Act
  • 132. Background the the Food Safety Modernization Act • Pew estimates that the U.S. spends about $152 billion on food-borne illness per year – One in six Americans (48 million people) become sick from contaminated food. – Number of outbreaks have been on the rise – Most prominent causes of foodborne outbreaks • • • • • Poultry Leafy greens Beef Dairy Fruit-Nuts “Food Safety Issues for the 113th Congress” at 1, 3. (C) Cari Rincker, 2013 132
  • 133. Background the the Food Safety Modernization Act • Congress heard the outcry from many groups on food safety – – – – – – – Parents of sick children Children of sick elderly Consumer protection groups Farmers Doctors State departments of agriculture Various segments of the food industry • Was a bipartisan issue in the 111th Congress – Yet, controversial (C) Cari Rincker, 2013 133
  • 134. Policy Reasons for the Food Safety Modernization Act • The risk of getting sick or dying from food contaminated with food pathogens (e.g., E. coli) is largely preventable by preventative measure applied at each stage of the food supply chain – Different segments of the food chain have different risks • Post 9/11, the United States has a bioterrorism risk • In 2009, Obama Administration created an inter-agency Food Safety Working Group to look at various food safety proposals (C) Cari Rincker, 2013 134
  • 135. Food Safety Modernization Act • Food Safety Modernization Act (“FSMA – pronounced Fiz-ma”) was signed into law by President Obama on January 4, 2011 – Shifts the focus from responding to contamination to preventing it • Reactive system to a proactive system – First major update to food safety law in 70 years (C) Cari Rincker, 2013 135
  • 136. Food Safety Modernization Act • FDA released proposed rules on January 2013 – Comment period ended on September 16, 2013 – We’ll be talking about the proposed rules – subject to change • Awaiting final rules (C) Cari Rincker, 2013 136
  • 137. Overview of the Food Safety Modernization Act • Requires each owner, operator or agent in charge of a food facility to identify and implement preventative controls to significantly minimize or prevent hazards that could affect food manufactured, processed, packed or held by such facility • Requires FDA to allocate resources to inspect facilities by 2018 according to the known safety risks of the facilities or food (C) Cari Rincker, 2013 137
  • 138. Overview of the Food Safety Modernization Act • Increase detection and of the response to food safety problems – FDA and USDA are required to coordinate under FSMA – Must revisit and resubmit plan every 4 years – Requires enhancement of foodborne illness surveillance systems to improve the collection, analysis, reporting and usefulness of data on foodborne illness (C) Cari Rincker, 2013 138
  • 139. Overview of the Food Safety Modernization Act • FSMA enhances a traceability system – FSMA requires the inspection of facilities and imported food to the known safety risks of the facilities for food – Establish a product tracing system to track and trace food that is in the United States or offered for import into the United States (C) Cari Rincker, 2013 139
  • 140. Overview of the Food Safety Modernization Act • Improves the safety of imported foods – Requires importers to perform risk-based foreign supplier verification activities to verify that imported food is produced in compliance with applicable requirements related to hazard analysis and standards for produce safety and is not adulterated or misbranded – Resources allocated to inspect facilities by 2018 and imported food according to the known safety risks of the facilities or food (C) Cari Rincker, 2013 140
  • 141. Overview of the Food Safety Modernization Act • Scale appropriate regulations: rejecting the “one size fits all” approach, FSMA includes options for small, mid-sized and direct market agricultural operations • Conservation practices: FSMA aims to not undermined existing on-farm conservation and wildlife practices in food production • Organic production: FSMA aims to complement, not contradict, the National Organic Program National Sustainable Agriculture Coalition (C) Cari Rincker, 2013 141
  • 142. Overview of the Food Safety Modernization Act • Value-Added Processing: FSMA reduces regulations on low-risk processing • Paperwork reduction: FSMA aims to help smaller operations by reducing unnecessary paperwork • Farm identity-preserved: FSMA allows farm identity-preserved marketing as an option in place of government trace-back control • Training: FSMA authorizes a new competitive grants program to train farmers and processors on food safety National Sustainable Agriculture Coalition (C) Cari Rincker, 2013 142
  • 143. Overview of the Food Safety Modernization Act • New FDA Powers – Order a recall of food – Detain food based only on a “reason to believe” the food is adulterated or misbranded – Suspend the registration thereby suspending the operation of any food facility • If the FDA determines that the food manufactured, processed, packed or held has a reasonable probably of causing serious adverse health consequences or death to humans or animals – Expands FDA authority over imported food (C) Cari Rincker, 2013 143
  • 144. Overview of the Food Safety Modernization Act • New FDA Responsibilities – FDA is required to review health data every two years and issues guidance documents or regulations setting contaminant-specific performance standards for the the most problematic foodborne contaminants – FDA is required to establish a product tracing system within the FDA to effectively and rapidly track and trace food (C) Cari Rincker, 2013 144
  • 145. Food Safety Modernization Act • The proposed rule mandates the establishment of two primary regulations: – Standards for produce production (The “Produce Rule”) – Food safety measures for facilities that process food for human consumption (the “Preventative Controls Rule”) (C) Cari Rincker, 2013 145
  • 146. Proposed Produce Safety Rule • Establishes science-based minimum standards for the safe growing, harvesting, packing and holding of produce on farms • Proposed new standards regulate the following areas: – Worker training, health & hygiene – Agricultural water – Biological soil amendments of animal origin – Domesticated and wild animals – Equipment, tools and buildings (C) Cari Rincker, 2013 FDA – FAQ’s 146
  • 147. Proposed Produced Safety Rules The proposed rule has specific requirements for growing sprouts – treating seed before sprouting – testing sprout irrigation water for pathogens – monitoring the growing environment for Listeria (C) Cari Rincker, 2013 147
  • 148. Proposed Produce Safety Rule • Farm fall into one of three categories: – Exempt – Modified requirements – Full requirements National Sustainable Agriculture Coalition (C) Cari Rincker, 2013 148
  • 149. Proposed Produce Safety Rule • What kind of produce? – Most fruits and vegetables in the raw / unprocessed state – Exemptions: Doesn’t apply to raw agricultural commodities that are: • rarely consumed raw – E.g., potatoes • Produced for personal or onfarm consumption • Destined for commercial processing (with documentation) – E.g., canning, bagged salads and leafy greens (C) Cari Rincker, 2013 149
  • 150. Proposed Produce Safety Rule • Another Exemption: A farm is exempt if the average annual sales during the previous 3year period is no more than $25K – This is sales not profit (C) Cari Rincker, 2013 150
  • 151. Modified Requirements • If the produce will undergo additional commercial processing that kills harmful microorganisms, then the produce is not covered – However, the farm will be subject to recordkeeping requirements and the compliance and enforcement requirements of the Produce Rule (C) Cari Rincker, 2013 National Sustainable Agriculture Coalition 151
  • 152. Modified Requirements • If the farm on average over the previous 3 years has less than $500K in gross annual sales and the majority of the food is sold directly to a “qualified end-user” (e.g., consumer, restaurant or retail food establishment) then the farmer must: – Provide the name and complete address of the farm where the produce was grown on either a food packaging label or on a sign at the point of purchase – Comply with the compliance and enforcement requirements of the Produce Rule; and – Be subject to the provisions regarding the withdrawal of the farm’s status as a partially covered (“qualified exempt”) operation. National Sustainable Agriculture Coalition (C) Cari Rincker, 2013 152
  • 153. Proposed Produce Safety Rule • FDA anticipates that the Produce Safety Rule will cover 40,496 domestic farms and 14,927 foreign farms • FDA estimates that it will cost $460 million annually for domestic farms and $170 million annually for foreign farms • FDA estimates that there will be $1.04 billion dollars in annual benefits (C) Cari Rincker, 2013 153
  • 154. Proposed Preventative Controls Rule • • A “facility” is a location that manufactures, processes, packs or holds food for consumption in the United States FDA will look at whether there are any manufacturing or processing activities – – – – – – – – – – – – – – – Irradiation Cutting/coring/chopping/slicing Canning Coating with things other than wax/oil/resin Drying that creates a distinct commodity Artificial ripening Cooking Pasteurizing/homogenizing Infusing Distilling Salting Smoking Grinding/milling National Sustainable Agriculture Coalition Freezing Slaughtering animals or post-slaughter operations (C) Cari Rincker, 2013 154
  • 155. Proposed Preventative Controls Rule • FDA looks at the type manufacturing and processing activities – Whether the farm is conducting the activities on its own agricultural products • Reduced requirements – Whether the facility is manufacturing and processing someone else’s agricultural products National Sustainable Agriculture Coalition (C) Cari Rincker, 2013 155
  • 156. Proposed Preventative Controls Rule • Proposed rule has two main points: – Requirements for hazard analysis and risk-based preventative controls; and – Revisions to existing Current Good Manufacturing Practice (“GMP”) requirements • Some facilities are subject to only one and not the other- important to see them as two different requirements National Sustainable Agriculture Coalition (C) Cari Rincker, 2013 156
  • 157. Proposed Preventative Controls Rule • Who is subject to the Hazard Analysis and Risk-Based Preventive Controls (“HARPC”)? • 3 categories – Exemptions – Modified requirements – Full requirements National Sustainable Agriculture Coalition (C) Cari Rincker, 2013 157
  • 158. Exemptions from Hazard Analysis and RiskBased Preventative Controls • Following products are exempt – – – – – Juice Seafood Dietary Supplements Alcoholic beverages Low-acid canned foods • Grain elevators and warehouses that are solely engaged in storing agricultural commodities or packaged food • Small or very small on-farm businesses that conduct certain lowrisk manufacturing and processing, packing or holding activities – Making jams and jellies – Manufacturing honey and maple syrup National Sustainable Agriculture Coalition (C) Cari Rincker, 2013 158
  • 159. Facilities Subject to Modified HARPC Requirements • Very small businesses – FDA still debating what is deciding what is considered a “very small business” • FDA proposing that if the business is less than $250K, $500K or 1 mil. must maintain records and certify that it • qualifies for the modified requirements; and • Implementing and monitoring preventative controls or complying with applicable non-Federal food safety law and must display a label or sign with the complete business address of the facility at the point of sale National Sustainable Agriculture Coalition (C) Cari Rincker, 2013 159
  • 160. Facilities Subject to Modified HARPC Requirements • If the facility on average over the previous 3 years has less than $500K in gross annual sales and the majority of the food is sold directly to a “qualified end-user” (e.g., consumer, restaurant or retail food establishment) then the facility must maintain certain records and must certify that: – It qualifies for modified requirements; and – It is implementing and monitoring preventive or complying with applicable non-federal food safety law and must display a label or sign with the complete business address of the facility at the point of sale National Sustainable Agriculture Coalition (C) Cari Rincker, 2013 160
  • 161. Proposed Preventative Controls Rule • Who must comply with the current Good Manufacturing Practices (“GMPs”)? – Only facilities that are exempt are warehouses and grain elevators that store raw agricultural commodities (including fruits and vegetables) intended for further processing National Sustainable Agriculture Coalition (C) Cari Rincker, 2013 161
  • 162. Other Legal Issues Affecting Direct Farm Marketing Endres, A. Bryan et al., “New York Direct Farm Business: A Legal Guide to Market Access” (2013). (C) Cari Rincker, 2013 162
  • 163. Questions on Being an Agriculture Lawyer • Fridays with Cari Skype Calls – First Friday of the month at 2pm ET – RSVP to cari@rinckerlaw.com – No charge
  • 164. Oh, P.S. – I Just Wrote a Book Cari B. Rincker & Patrick B. Dillon, “Field Manual: Legal Guide for New York Farmers & Food Entrepreneurs” (2013) Available at http://www.amazon.com/Fi eld-Manual-Legal-FarmersEntrepreneurs/dp/1484965 191
  • 165. Please Stay in Touch • Send Me Snail Mail: 535 Fifth Avenue, 4th Floor, New York, NY 10017 • Call Me: (212) 427-2049 (office) • Email Me: cari@rinckerlaw.com • Visit My Website: www.rinckerlaw.com • Read My Food & Ag Law Blog: www.rinckerlaw.com/blog • Tweet Me: @CariRincker @RinckerLaw • Facebook Me: www.facebook.com/rinckerlaw • Link to Me: http://www.linkedin.com/in/caririncker • Skype Me: Cari.Rincker