Lawline: Counseling the Local Food Movement Part II


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This is the presentation that I gave to Lawline on November 18, 2013. I discuss the proposed regulations under the Food Safety Modernization Act, the National Organic Program, Right-to-Farm law, backyard chickens and urban apiaries, direct meat marketing, on-farm poultry slaughter and Article 5-A licenses, and volunteer farm labor. You can obtain a Free CLE credit at

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Lawline: Counseling the Local Food Movement Part II

  1. 1. Part 2: Counseling the Local Food Movement Lawline November 18, 2013 By Cari B. Rincker, Esq.
  2. 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. 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. 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. 5. Overview • Food Safety Modernization Act • National Organic Program • Direct Meat Marketing • On Farm Poultry Slaughter • Agriculture Districts and the Right to Farm • Urban Agriculture • Volunteer Farm Labor
  6. 6. Food Safety Modernization Act
  7. 7. 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
  8. 8. Food Safety Modernization Act • FDA released proposed rules on January 2013 • Awaiting final rules (C) Cari Rincker, 2013 8
  9. 9. 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”)
  10. 10. 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 FDA – FAQ’s
  11. 11. Proposed Produce Safety Rule • Farms fall into one of three categories: – Exempt – Modified requirements – Full requirements National Sustainable Agriculture Coalition
  12. 12. 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 on-farm consumption • Destined for commercial processing (with documentation) – E.g., canning, bagged salads and leafy greens
  13. 13. Proposed Produce Safety Rule A farm is exempt if the average annual sales during the previous 3-year period is no more than $25K – This is sales not profit
  14. 14. 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 National Sustainable Agriculture Coalition
  15. 15. 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
  16. 16. 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 Freezing Slaughtering animals or post-slaughter operations National Sustainable Agriculture Coalition
  17. 17. Proposed Preventative Controls Rule • FDA looks at the type of 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
  18. 18. 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 otherimportant to see them as two different requirements National Sustainable Agriculture Coalition
  19. 19. 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
  20. 20. 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 low-risk manufacturing and processing, packing or holding activities – Making jams and jellies – Manufacturing honey and maple syrup National Sustainable Agriculture Coalition
  21. 21. 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
  22. 22. 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
  23. 23. National Organic Program • Harrison Pittman et al., “A Legal Guide to the National Organic Program”, The National Agriculture Law Center (January 2011) available at program.pdf (last visited September 29, 2013). – NALC has a great online law library on a myriad of legal topics affecting the food and agriculture industry (“Reading Room” tab online)
  24. 24. National Organic Program • Congress enacted the Organic Foods Production Act (“OFPA”) in 1990 – to create “national standards governing the marketing of certain agricultural products as organically produced products,” – assure consumers that “organically produced products meet a consistent standard,” and – facilitate “interstate commerce in fresh and processed food that is organically produced.” • OFPA directed the U.S. Department of Agriculture (“USDA”) to establish national standards for organic production and handling Pittman at 1
  25. 25. National Organic Program • On December 21, 2000, USDA published the final rule that created the organic standards – Directed that it be administered by the USDA Agriculture Marketing Service (“AMS”) • As of October 21, 2002, for a producer or handler to sell, label or represent that an agricultural product is “organic” then he/she/it must comply with NOP standards – Limited exceptions Pittman at 1
  26. 26. NOP Applicability • Exceptions to NOP certification requirements – 1. Production or handling operation that has a gross income from sales totaling $5K or less • Primary direct-to-consumer and indirect markets • Still must comply with applicable organic production and handling requirements – Doesn’t have to submit an organic system plan • Must also comply with labeling requirements for exempted operations • Cannot be used as ingredients in processed products identified as “organic”? 7 CFR 205.100(a)
  27. 27. NOP Applicability • Exceptions to NOP certification requirements – 2. Handling operation that only handles agricultural products containing less than 70% organic ingredients by total weight • Must comply with the standards for avoiding the commingling and contact of organic products with prohibited substances • Labeling standards for excluded operations and multi-ingredient packaged products with less than 70% organic • Record-keeping requirements for exempted operations 7 CFR 205.101(a)(3)
  28. 28. NOP Applicability • Exceptions to NOP certification requirements – 3. Handling operation that identifies ingredients as “organic” only on the information panel only • Must comply with the standards for avoiding the commingling and contact of organic products with prohibited substances • Labeling standards for excluded operations and multi-ingredient packaged products with less than 70% organic • Record-keeping requirements for exempted operations 7 CFR 205.101(a)(4)(i)-(iii)
  29. 29. NOP Applicability • 2 main exclusions from NOP certification – 1. handling operations that sell only “organic” products that are packaged or otherwise enclosed in a container before the operation receives or acquires the product and it remains in the same package – 2. retail food establishments that process on the premises “raw and ready-to-eat” food from products that were previously labeled as organic. 7 CFR 205.101(b)
  30. 30. Recordkeeping Requirements Certified Operations Exempted Operations Excluded Operations
  31. 31. Recordkeeping Requirements • Certified Operations – Must maintain records that relate to the “production or handling of agricultural products sold or labeled as organically produced” for five years beyond the date the records are created. – The records must include a detailed history of the substances applied to the operation’s fields or agricultural products, the names and addresses of the persons who applied the substances, the dates and rates the substances were applied, and the method used to apply the substances. – They must also be sufficient to demonstrate that the operation has complied with all applicable NOP requirements. – The records must be available during normal business hours to representatives of the Secretary, the State official governing a State’s organic program, if applicable, and the certifying agent for inspection and copying. 7 USC 6511(d) and 7 CFR 205.103
  32. 32. Recordkeeping Requirements • Exempted Operations – Must maintain records sufficient to demonstrate that ingredients identified as “organic” were organically produced and handled and to verify the quantities produced from those ingredients. – The records must be kept for at least three years after they are created. • USDA Representatives and the state official governing a state organic program must be allowed access to the records for inspection and copying during normal business hours. 7 CFR 205.101(c)
  33. 33. Recordkeeping Requirements • Excluded Operations – Confusing and unsettled – the comments state, in pertinent part, that “*e+ach exempt, excluded, and certified operation should maintain the records which demonstrate compliance with the Act and the regulations applicable to it and . . . establish . . . that the exempt, excluded, or certified operation is and has been in compliance with the Act and the regulations.”
  34. 34. Allowed and Prohibited Substances, Methods and Ingredients • For a certified operation to sell, label, or represent a product as “organic,” it must produce or handle the product without the use of synthetic substances and ingredients, unless the substances or ingredients are specifically listed as allowed on the national list of approved substances (“National List”). – A “synthetic” is “*a+ substance that is formulated or manufactured by a chemical process or by a process that chemically changes a substance extracted from naturally occurring plant, animal, or mineral sources, except that such term shall not apply to substances created by naturally occurring biological processes.” 7 CFR 205.105 and 7 USC 6502(21)
  35. 35. Allowed and Prohibited Substances, Methods and Ingredients • Certified operations must also produce and handle products without the use of prohibited nonsynthetic or nonagricultural substances unless on the National List • There are certain vaccines, for example, that can be used for limited purposes that are on the National List 7 CFR 205.105 and 205.2
  36. 36. Allowed and Prohibited Substances, Methods and Ingredients • Cannot use an “excluded method” – Methods used to genetically modified organisms – Influence their growth and development by means that are not possible under natural conditions • Cell fusion, micro/macro-encapsulation and DNA technology (e.g., gene deletion, gene doubling, introducing foreign genes) – Excluded methods do not include the use of traditional breeding, conjugation, fermentation, hybridization, in vitro fertilization, or tissue culture
  37. 37. NOP Organic Production and Handling Standards • Organic System Plan – A producer or handler of a production or handling operation seeking certification must submit an “organic system plan” to its certifying agent or, if applicable, to the governing official of its state’s organic program. – An “organic system plan” is a plan of management of an organic production or handling operation that has been agreed to by the producer or handler and the certifying agent and that includes written plans concerning all aspects of agricultural production or handling” as set forth in OFPA and the final rule’s organic production and handling requirements. • Including recordkeeping procedures • Describe management practices 7 USC 6513
  38. 38. Land Requirements • Any field or farm parcel from which harvested crops are intended to be sold, labeled, or represented as ‘organic,’ must not have had any prohibited substances applied to it for the three years preceding the harvest of the crop • The field or farm parcel must also “*h+ave distinct, defined boundaries and buffer zones such as runoff diversions to prevent the unintended application of a prohibited substance to the crop or contact with a prohibited substance applied to adjoining land that is not under organic management.” 7 CFR 205.202(b)-(c)
  39. 39. Soil Fertility and Crop Nutrient Management Practice Standards • Under the soil fertility and crop nutrient standards, a producer must “select and implement tillage and cultivation practices that maintain or improve the physical, chemical, and biological condition of soil and minimize soil erosion.” • A producer must also manage crop nutrients and soil fertility by rotating crops, using cover crops, and by applying plant and animal materials to the land. 7 CFR 205.203(c)
  40. 40. Seeds and Planting Stock Practice Standard • A producer must use organically grown seeds, annual seedlings, and planting stock in their operations – There are some limited exceptions… 7 CFR 205.204(a)
  41. 41. Crop Rotation • A certified organic producer must implement a “crop rotation” practice into its operation – Example: Corn and Beans 7 CFR 205.2
  42. 42. Livestock Production • Livestock products intended to be sold, labeled or represented as “organic” must be produced from livestock raised in organic management conditions from the last third of gestation or hatching – 3 exceptions • Poultry – from second day of life • Milk- dairy animals with 1 year of organic handling • Breeder livestock- at the time of birth 7 CFR 205.236
  43. 43. Livestock Feed • Must be given a feed ration that is composed of organic agricultural products – Includes grains, hay, silage, pasture and fodder – Note that organic does not necessarily mean grass fed 7 CFR 205.2
  44. 44. Livestock Health and Well-Being • Required to establish and maintain preventative livestock health care practices – Must administer vaccines and other veterinary biologics when needed • Must allow “for exercise, freedom of movement, and reduction of stress” appropriate for the livestock species – Must accommodate the animal’s natural behavior Pittman at 21-22
  45. 45. Temporary Variances • Under certain circumstances, producers and handlers can obtain temporary variances from the – – – – – – – – – – – • soil fertility and crop nutrient management standard; seed and planting stock standard; crop rotation standard; crop, pest, weed, and disease management standard; origin of livestock standard; livestock feed standard; livestock health care practice standard; livestock living conditions standard; organic handling requirements; facility pest management standard; and the commingling and contact with prohibited substance prevention standard. The Secretary may issue a temporary variance due to natural disasters, “*d+amage caused by drought, wind, flood, excessive moisture, hail, tornado, earthquake, fire, or other business interruption*,+” and for certain research purposes. 7 CFR 205.290(a)(1)-(3)
  46. 46. NOP: Labels, Labeling, and Market Information • 4 Labeling Categories – 100% Organic – “Organic” – “made with organic _______” – Products with less than 70% organically produced ingredients • Percentage is determined by weight in solid form Pittman at 27
  47. 47. Labeling Categories: 100% Organic • For a raw or processed product to be sold, labeled, or represented as “100 percent organic,” it must contain 100 percent organically produced ingredients. • Products in this labeling category may display “on the principal display panel, information panel, and any other panel of the package and on any labeling or market information” pertaining to the product – the term “100 percent organic” to modify the name of the product, and – the term “organic” to identify the organic ingredients contained in products containing two or more ingredients. Pittman at 28
  48. 48. Labeling Categories: Organic For a raw or processed product to be sold, labeled, or represented as “organic”– the second labeling category– it “must contain at least 95 percent organically produced raw or processed agricultural products.” – The remaining ingredients in the product must be organically produced, unless they are either commercially unavailable in organic form or are “nonagricultural substances or nonorganically produced agricultural products produced” in accordance with the National List requirements. Pittman at 28-29 (C) Cari Rincker, 2013 48
  49. 49. Labeling Categories: made with organic ___________ • Multi-ingredient products that are comprised of at least seventy percent but less than 95% organic ingredients fall within the third labeling category, “made with organic (specified ingredients or food group(s)).” – Example: Candy bar “made with organic peanuts” Pittman at 30
  50. 50. Labeling Categories: 70% Organic ingredients The organic ingredients contained in products falling within the fourth labeling category, “products with less than 70 percent organically produced ingredients,” must have been produced and handled in accordance with the organic production and handling requirements. – The packages of products in this labeling category are prohibited from displaying the USDA seal.
  51. 51. NOP Certification • 6 Basic Requirements – Comply with all the OFPA and NOP production and handling stands – Create, implement and annually update and organic system plan – Allow a certifying agent to conduct on-site inspections – Maintain records – Make payments to the certifying agent – The person must notify the certifying agent when there is an application of a prohibited substance or change in the operation
  52. 52. NOP Compliance • If certified operation knowingly sells or label a product that is organic when it did not comply with the standards: – Suspension or revocation of certification – Civil penalties up to $10K per violation – Administrative hearings Pittman at 50
  53. 53. Direct Marketing of Meat Products Martha Goodsell and Dr. Tatiana Stanton, “A Resource Guide to: Guide to Direct Marketing,” Cornell University Cooperative Extension (January 2011).
  54. 54. Federal Meat Inspection Act Are the animals amenable? • Amenable • Amenable Livestock- Cattle, sheep, goats • Amenable poultry- chickens, turkey, ducks, geese, guineas, ratites (ostrich, emus, and rhea), squabs • Nonamenable – not subject to the Federal Meat Inspection Act • Game animals and birds • Even if a farmer raises a domesticated species, it is still considered non-amenable Cornell at 11
  55. 55. Federal Meat Inspection Act • Requires imported meat products to have inspection requirements equivalent to the U.S. requirements – Must remain in the original packing the country of origin and foreign establishment number of the label Cornell at 15
  56. 56. Custom Exempt Slaughterhouses • May offer slaughtering services without federal inspection and oversight – Should not be confused with state slaughterhouses that are inspected by state officials • For the owner themselves or their household – Must be stamped “Not for Sale” • Custom-exempt plants are inspected periodically Cornell at 19 My family would harvest our 4-H projects and steers– example of custom slaughter
  57. 57. Nonamenable Slaughtering and Processing Facilities • There are specialized state facilities that conduct butchering and processing for nonamenable animals – In New York, must obtain an Article 5-A license – Higher standards than conventional customexempt plants • Example: hot water at 180° F vs. 170° F Cornell at 21
  58. 58. Selling Meat Direct to the Consumer • In New York, all red meat from amenable species must be slaughtered at a USDA inspected facility – Some states allow for state- inspected slaughter facilities if sold intrastate
  59. 59. On Farm Poultry Slaughter CARI B. RINCKER AND PAT B. DILLON, “FIELD MANUAL: LEGAL GUIDE FOR NEW YORK FARMERS AND FOOD ENTREPRENEURS” (2013). (Chapter 23) (pp 339346) Bliven, Lynn et al., “On-Farm Poultry Slaughter Guidelines,” Cornell University Cooperative Extension (July 2012).
  60. 60. On Farm Poultry Slaughter • General rule: poultry must be slaughtered in a USDA inspected facility – Poultry Produce Inspection Act (“PPIA”) • 1000 Bird Limit Exemption: New York poultry producer who processes and sells less than 1000 chickens or 250 turkeys – 1 turkey = 4 chickens Combinations are okay Ex: 50 turkeys & 800 chickens =
  61. 61. 1000 Bird Exemption • Additional Requirements – Must be chickens and turkeys that he/she raised on the farm; – Poultry farmer does not engage in the buying or selling poultry products other than those produced from poultry raised on his/her farm; – Slaughter and processing are conducted under sanitary standards, practices and procedures that are sound, clean, not adulterated or misbranded, and fit for human food; – Poultry producer keeps the required records; and, – Poultry does not move into interstate commerce. Rincker at 339-340
  62. 62. 1000 Bird Exemption • Slaughter and processing must be done on site – Poultry farmer may own their own equipment or rent a Mobile Poultry Processing Unit (“MPPU”) Rincker at 340
  63. 63. 1000 Bird Exemption • It is per farm, not per farmer – Example: farm partnership formed between Grandpa (400 chickens), daughter (200 chickens) and two sons (400 chickens), and 1 grandson (100 turkeys) – the farm enterprise is not eligible for the 1000 Bird exemption • It is recommend by the NYS Department of Agriculture & Markets that the poultry be sold direct to the consumer
  64. 64. 1000 Bird Exemption • Food label must include: – Product name and description; – Inspection Legend and Establishment Number (for farms processing under this exemption, it should say “Exempted – P.L. 90-492); – Net weight statement (includes “packed on” date, “sell by” date, “net wt lb.”, “price per lb”, and net weight); – Name and address of the farm; and, – Safe handling statement (if processed under on-farm exemption, then label must say “Exempt P.L. 90-492”). • If there is a nutritional claim, then a Nutritional Facts Panel must be included
  65. 65. Safe Handling Instructions
  66. 66. Producer/Grower 1000 Bird Limit Exemption • Processing Guidelines – Water used in processing, cleaning and sanitation, in chilling tanks and ice manufacture should be potable and must be tested annual to determine potability; – Any approved sanitizing agents for use on food contact surfaces must be used in prescribed concentrations and methods; – Any agents (including lubricants) used on equipment maintenance must be food grade; – The on-farm processing facility must be managed in a manner that protects the environment (e.g., surface and groundwater, and soils).
  67. 67. Good Manufacturing Practices (“GMP’s”) • • • • • • • Provide Training for Processing Personnel Establish Health & Hygiene Policies Maintain a Clean Processing Environment Control Pests Control Access to the Processing Facility Provide Potable Water Securely Store Processing Equipment, Utensils, Supplies & Materials • Manage Processing Wastes
  68. 68. (Sanitation) Standard Operating Procedures (“SOP’s” “SSOP’s”) • Site Management & Pest Control • Personnel Health & Hygiene • Pre-Operational Inspection & Sanitation Schedule • Daily Operational Sanitation Maintenance • Chill Tank, Giblet Chill Containers & Refrigeration Temperature Monitoring • Post-Operational Sanitation Schedule
  69. 69. Hazard Analysis Critical Control Point (“HACCP”) Plan Even though a HACCP Plan is not required for birds slaughtered and processed under the Producer/Grower 1000 Bird Limit Exemption it is highly recommended • 7 Steps of HACCP – – – – – – – Access food safety hazards associated with all areas of your product Determine Critical Control Points (“CCP’s”) Establish the Critical Limits for each CCP Establish Monitoring Procedures for CCP’s Establish Corrective Actions to be taken when CCP’s are not in control Establish Record-Keeping Procedures Establish Verification Procedures to determine that the system is working
  70. 70. Article 5-A Licenses in New York • If a farmer harvests more than 1000 birds yet stays in intrastate commerce in New York, this farmer does not have to harvest the poultry in a USDA inspected facility if the farm obtains an Article 5-A license – This is Article 5-A under the New York Agriculture & Markets Law Rincker at 342
  71. 71. Article 5-A Licenses in New York • Exclusions – Bona fide farmer who butchers his own domestic animals or fowl on his farm exclusively for use by the farmer and his/her household – A custom slaughterer • This is where animals are delivered by the owner for slaughter for use in the household of the buyer (i.e., cannot sell the meat or carcass) – 1000 Bird Exemption – Any person who donates the poultry to a charitable or not-forprofit organization Rincker at 343
  72. 72. Article 5-A Licenses • 2 year license - $200 application • NYSDAM must be satisfied with the equipment and sanitation • NYSDAM may inspect the premises • A drawing must be submitted included the specifications of the facility • Inspection results must be posted on the premises
  73. 73. Land Use & Zoning
  74. 74. Agriculture Districts Article XIV, Section 4 of the NYS Constitution provides for the policy of New York to encourage the development and improvement of its agriculture lands for the production of food and other agricultural products
  75. 75. Agriculture Districts • Article 25-AA of NY Agric. & Mkts Law – “Local governments, when exercising their powers to enact and administer comprehensive plans and local laws, ordinances, rules or regulations, shall exercise these powers in such manner as may realize the policy and goals set forth in this article, and shall not unreasonably restrict or regulate farm operations within agricultural districts in contravention of the purposes of this article unless it can be shown that the public health or safety is threatened.” Section 305-a.
  76. 76. Agriculture Districts • Among other advantages, farms located in agricultural districts are typically exempt from many local and state regulations including State Environmental Quality Review (“SEQR”) and some building codes for building construction. – Farms located in agriculture districts should be free of overly restrictive land use regulations. (C) Cari Rincker, 2013 77
  77. 77. Right-to-Farm Law • Nearly every state around the U.S. has a Right to Farm law • Right-to-Farm laws bar nuisance suits against farmers and ranchers using sound production practices in agricultural districts (C) Cari Rincker, 2013 78
  78. 78. Right to Farm • Under section 308[1], NYSDAM issues opinions upon request on “sound agricultural practices” • NYSDAM may consider: – operation of farm equipment – proper use of agricultural chemicals and other crop protection methods – direct sale to consumers of on-farm products – agricultural tourism • NYSDAM may consult with USDA and/or Cornell
  79. 79. Right to Farm • Upon issuance of an opinion, NYSDAM must publish a notice in a newspaper in the surrounding area. See NY Agric. & Mkts § 308[2]. • If the farmer is conducting a sound agricultural practice on any land in an agricultural district and subject to an agricultural assessment, then said practice is not considered a private nuisance. See NY Agric. & Mkts § 308[3].
  80. 80. NYSDAM Determination of Unreasonably Restrictive Laws • Whether the requirements will: – adversely affect the farm operator’s ability to manage the farm operation effectively and efficiently; – restrict production options which could affect the economic viability of the farm; and – cause a lengthy delay in the construction of a farm building or implementation of a practice; the cost of compliance for the farm operation affected • Affect the availability of less onerous means to achieve the locality’s objective. • Relevant standards established under State law and regulations.
  81. 81. Right to Farm at the Local Level • NYSDAM encourages localities to provide for a Right to Farm exemption in its local land use law – “*n]othing contained herein shall be deemed to limit the right to farm as set forth in Article 25-AA of the NYS Agriculture & Markets Law....” • Local laws oftentimes provide that no “sound agricultural practice” as defined in Article 25-AA shall be deemed prohibited under the ordinance or subject to its permit requirements.
  82. 82. Right to Farm Disputes • Can be resolved for free through the New York State Agriculture Mediation Program (“NYSDAM”) between the farmer and the neighbor
  83. 83. Backyard Chickens • Cities that allow for the use of backyard chickens may place specifications on the following: – number of hens, – setbacks for coops/pens, – number of roosters (if allowed at all), – neighbor consent, – pest control, and – feed storage.
  84. 84. Beekeeping • Local zoning ordinances that allow for urban apiaries may post regulations for the lot size and setbacks • Beekeepers may still be subject to tort liability – People v. McOmber
  85. 85. Examples of New York Ordinances with Urban Livestock • Albany- no livestock allowed Chapter 115, Article VIII, § 115-31: No person shall keep, harbor, or shelter any farm animal or fowl within the City of Albany. For purposes of this article, farm animal or fowl shall include cows, cattle, horses, ponies, donkeys, mules, pigs, goats, sheep, chickens, ducks, geese, or other animals or fowl usually known as "farm animals or fowl," but not solely limited to the aforementioned and not including common household pets. Guide to Urban Farming at #29
  86. 86. Examples of New York Ordinances with Urban Livestock • Buffalo Cont. Chapter 341, Article II, § 341-11.1: It shall be lawful for any person to keep, permit or allow any domesticated chicken hens ** *under the following terms and conditions: A. No more than five chicken hens shall be allowed for each singlefamily dwelling or multifamily dwelling. B. No chicken hens shall be allowed in multifamily complexes, including duplexes, without the expressed written consent of the owner of the building and all tenants residing in the building other than the applicant. C. No chicken hens shall be allowed without the express written consent of all residents residing on property adjacent to that of the applicant. Guide to Urban Farming at #29
  87. 87. Examples of New York Ordinances with Urban Livestock Cont. • Buffalo D. No roosters shall be allowed. E. Chicken hens are to be restricted to the rear or backyard of any lot in a residential zoning district or the rear or backyard of a residential use in all other zoning districts. F. Chicken hens shall be kept as pets and for personal use only; no person shall sell eggs or meat or engage in chicken breeding or fertilizer production for commercial purposes. G. Persons wishing to keep chicken hens within the City of Buffalo must obtain a license from the Office of the City Clerk after payment of an annual fee of $25, and after inspection and approval of the coop and cage that chicken hens are to be kept in by an Animal Control Officer, pursuant to § 341-11.4 hereof. Guide to Urban Farming at #29
  88. 88. Examples of New York Ordinances with Urban Livestock • Buffalo Chapter 511, Article XXII, § 511-115: It shall be unlawful for any person to stable, keep as a pet, or permit to remain any cloven-footed or hoofed animal, such as, but not limited to, cows, goats, horses, pigs, or sheep, on any lot or premises within a residential district or business district as classified under Chapter 511 of the Code of the City of Buffalo, and in no case shall such animal be kept on the same lot or premises with a dwelling. Guide to Urban Farming at #29
  89. 89. Examples of New York Ordinances with Urban Livestock • Geneva Chapter 77, Article I, § 77-2: No person shall keep or harbor any bees in the city. Any beehive used or occupied by bees is hereby declared to be a nuisance; and it shall be unlawful to keep or maintain any such hive in the city. Guide to Urban Farming at #29
  90. 90. Examples of New York Ordinances with Urban Livestock • Geneva Chapter 77, Article I, § 77-3: No person shall keep or harbor any chickens, ducks, geese or other domesticated fowl in the city except in the AR, Agricultural Residential Use Districts and F Industrial Use Districts and not closer than 200 feet to any house, except the owner's, apartment building, church, school, hospital or any other building customarily used or occupied by human beings, such as but not limited to stores, hotels, restaurants, offices and factories. Guide to Urban Farming at #29
  91. 91. Examples of New York Ordinances with Urban Livestock • Geneva Chapter 77, Article I, § 77-4: No person shall keep or harbor any cattle, horses and sheep in the city except as follows: – Cattle, horses and sheep may be kept in the city in the AR, Agricultural District if maintained not closer than 100 feet to any house except the owner's, apartment building, church, school, hospital or any other building customarily used or occupied by human beings, such as but not limited to stores, hotels, restaurants, offices and factories. – Every person maintaining animals as permitted in Subsection A of this section shall keep clean and sanitary every shed, barn or structure housing said animals. – Every such shed, barn or structure shall be thoroughly cleaned at least once every 24 hours and refuse from the same shall, when collected, be kept in airtight containers until disposed of in accordance with any other provisions of this Code. Guide to Urban Farming at #29
  92. 92. Examples of New York Ordinances with Urban Livestock • Geneva Chapter 77, Article I, § 77-5: No person shall keep or harbor any goats, pigs or swine in the city; and it shall be unlawful to keep or maintain any goat pen, pig sty or other building for the housing of goats, pigs or swine. Guide to Urban Farming at #29
  93. 93. Examples of New York Ordinances with Urban Livestock • New Rochelle Chapter 89, Article VI, § 89-16: The Council of the City of New Rochelle hereby finds that the keeping, permitting, harboring and/or raising of farm animals, including but not limited to those of the equine, swine, bovine, ruminant and avian species on parcels of land with inadequate size and setbacks within the jurisdiction of the City of New Rochelle causes offensive odors which interfere with the quality of life of the public, property values and the public health, safety and welfare of the community. Guide to Urban Farming at #29
  94. 94. Examples of New York Ordinances with Urban Livestock • North Tonawanda Chapter 57, § 57-2: From and after the enactment of this ordinance, it shall be unlawful for any person, firm or corporation to harbor or maintain any animals or livestock within the limits of the City of North Tonawanda, New York. This section shall not be construed to apply to slaughterhouses and abattoirs that are covered in the provisions of other city ordinances. Guide to Urban Farming at #29
  95. 95. Examples of New York Ordinances with Urban Livestock • Rochester Chapter 30, Article I, § 30-12: No person, firm, association or corporation shall bring into, keep, hold, offer for sale, sell or kill or allow to be kept, held, offered for sale, sold or killed in the City of Rochester any live animals, except animals for show or exposition purposes only, and except white mice, white rats, cats, dogs, horses, mules and donkeys. Guide to Urban Farming at #29
  96. 96. Examples of New York Ordinances with Urban Livestock • Rochester No person, firm, association or corporation shall bring into, keep, hold, offer for sale, sell or kill or allow to be kept, held, offered for sale, sold or killed in the City of Rochester any chickens, geese, ducks, doves or pigeons, turkeys or other animals or owls, except persons holding a poulterer's license, without having a license therefor issued by the Chief of Police and under and pursuant to the provisions of this chapter; provided, however, that no license shall be required for any animals or fowls in transit through the said City; and provided, however, that nothing herein contained shall apply to slaughterhouses, cattle yards or any place where any cattle or swine are killed or dressed; and provided, however, that nothing herein contained shall apply to any cattle, sheep or swine brought into the City and directly transported to a slaughterhouse or cattle yard. Guide to Urban Farming at #29
  97. 97. Examples of New York Ordinances with Urban Livestock • Syracuse Chapter 16, Article XVIII, § 12-62: No person shall keep within the city of Syracuse any animal which is deemed to include a reptile, bird and/or an animal of a species which is wild, ferocious, fierce, dangerous, poisonous or naturally inclined to do harm*… • In Chapter 16, Article XVIII, § 12-63, wild, ferocious, fierce, dangerous, and poisonous animals, birds and reptiles are defined to include cows, guinea hens, goats, sheep, and swine, excluding Chinese Potbelly pigs. Guide to Urban Farming at #29
  98. 98. Examples of New York Ordinances with Urban Livestock • White Plains Title V, Chapter 5-2, Article I, § 5-2-1: A. No live chickens, geese, ducks or other fowl shall be kept in the city unless they are securely enclosed in such a manner as to prevent them from straying from the premises of the person owning them. Title V, Chapter 5-2, Article I, § 5-2-2: A. It shall be unlawful for any person to allow any livestock which is under his ownership, care, custody or control to run at large. Guide to Urban Farming at #29
  99. 99. Examples of New York Ordinances with Urban Livestock • Yonkers Chapter 65, § 65-23: No person shall keep, cause or allow to be kept on, in or about any premises or property any poultry, fowl or other birds, except as hereinafter provided: – It shall be lawful to keep for purposes of sale live poultry in a live poultry market. Guide to Urban Farming at #29
  100. 100. Volunteer Farm Labor
  101. 101. Volunteer Labor on Farms/ CSA’s • Types – “Work Share” or “Half Work Share” – Travel-Based Volunteers – Informal Worker Shares – Casual Volunteers
  102. 102. “Compensated” Farm Volunteers • Minimum Wage? – Fair Labor Standards Act (“FLSA”) – definitions of “employee” and “volunteer”
  103. 103. “Compensated” Farm Volunteers • Analysis: – Is the volunteer working in expectation of compensation? – Is the volunteer displacing employees? – Does the volunteer give the food business a competitive advantage? – Is the farm offering educational benefits?
  104. 104. Is the Farm Exempt from Federal Minimum Wage? • If a farm utilizes fewer than 500 man-days of labor in any calendar quarter of the previous year then they are exempt from federal minimum wage requirements – 29 U.S.C. § 213(a)(6), 29 C.F.R. Part 780 Subpart D. – If volunteers are considered employees, then they contribute to the man-day calculation.
  105. 105. Insurance • Workers Compensation • Farm liability and commercial insurance policies typically exclude coverage for “employees” • Commercial insurance will likely cover unpaid volunteers but not “compensated” farm volunteers
  106. 106. Questions on Being an Agriculture Lawyer • Fridays with Cari Skype Calls – First Friday of the month at 2pm ET – RSVP to – No charge
  107. 107. I Just Wrote a Book Cari B. Rincker & Patrick B. Dillon, “Field Manual: Legal Guide for New York Farmers & Food Entrepreneurs” (2013) Available at eld-Manual-Legal-FarmersEntrepreneurs/dp/1484965 191
  108. 108. 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: • Visit My Website: • Read My Food & Ag Law Blog: • Tweet Me: @CariRincker @RinckerLaw • Facebook Me: • Link to Me: • Skype Me: Cari.Rincker