Survey of Local Food Law Pace University, School of Law       March 13, 2013     By Cari B. Rincker, Esq.
Overview of Discussion• Cottage Food Operation  Laws• Poultry Slaughter  Regulations• Land Use & Zoning• Volunteer Farm La...
NY Cottage Food Operation Law
Article 20-C Licenses• Food processing establishments in New York  are subject to biennial license requirements  under Art...
Exemption to Article 20-C Licensing“Home Processed Food” may beexempt from Article 20-Clicensing if certain conditions are...
Definition of “Home Processed Food” Under NYS Agric. & Mkts Regulations Section 276.3(a)[3+, a “*h]ome processed food” inc...
Article 20-C License Exemption• 4 conditions must be met:     – All finished product containers are clean, sanitary and   ...
Article 20-C License Exemption•   Restricted to the following non-potentially    hazardous home processed foods:     – Bak...
Article 20-C License Exemption• If the product requires refrigeration then it is not  allowed to be produced as a Home Pro...
Inspections for Home ProcessorsEven though Home Processorsare exempt under the Article20-C license requirement, theyare st...
Food LabelingExemption to Article 20-CLicensing does notexempt the cottage foodoperation from foodlabeling requirements
Land Use & Zoning Considerations• Commercial operations in a  residence may conflict with  the local zoning code that  pro...
Insurance• Standard homeowner’s  insurance policies typically  do not provide coverage  for commercial operations  such as...
On-Farm Poultry Slaughter Regulations
Producer/Grower        1000 Bird Limit ExemptionA New York poultryproducer who processesand sells less than 1000chickens o...
Producer/Grower          1000 Bird Limit Exemption• 5 Criteria under Poultry Product Inspection Act   – The poultry produc...
Producer/Grower         1000 Bird Limit ExemptionAlthough sales and transportationof poultry products under thisexemption ...
Producer/Grower        1000 Bird Limit Exemption• Food Packaging  – Packaging materials must    be safe for its intended u...
Producer/Grower         1000 Bird Limit Exemption• Food Labeling   – New York has adopted the USDA FSIS Mandatory Labeling...
Producer/Grower        1000 Bird Limit Exemption• Processing Guidelines  – Water used in processing, cleaning and sanitati...
Good Manufacturing Practices             (“GMP’s”)• Provide Training for Processing Personnel• Establish Health & Hygiene ...
(Sanitation) Standard Operating     Procedures (“SOP’s” “SSOP’s”)• Site Management & Pest Control• Personnel Health & Hygi...
Hazard Analysis Critical Control Point           (“HACCP”) PlanEven though a HACCP Plan is not required for birds slaughte...
Article 5-A Licenses• Poultry sold intrastate not subject to the  Producer/Grower 1000 Bird Limit Exemption• Exclusions in...
Article 5-A License• Application for 2 year  Article 5-A License   – NYSDAM may request an     examination of the premises...
Article 5-A Licenses• Subject to NYSDAM Inspections    – Results may be made available to the public upon      request•   ...
InsuranceCommercialInsuranceProducts LiabilityInsurance
Land Use & Zoning
Zoning Tools Utilized to Promote    Small-Scale Agriculture Production•   Comprehensive Plans•   Zoning Ordinances•   Defi...
Backyard Chickens• Cities that allow for the use of backyard  chickens may place specifications on the  following:  – numb...
Beekeeping• Local zoning ordinances that allow for urban  apiaries may post regulations for the lot size  and setbacks• Be...
Agriculture DistrictsArticle XIV, Section 4 of theNYS Constitution providesfor the policy of New Yorkto encourage thedevel...
Agriculture Districts• Article 25-AA of NY Agric. & Mkts Law  – “Local governments, when exercising their powers    to ena...
Agriculture Districts• “Farm operation” under section 305-a, sub. 1:   – “...the land and on-farm buildings, equipment, ma...
Right to Farm• Under section 308[1], NYSDAM issues opinions  upon request on “sound agricultural practices”• NYSDAM may co...
Right to Farm• Upon issuance of an opinion, NYSDAM must  publish a notice in a newspaper in the  surrounding area. See NY ...
NYSDAM Determination of      Unreasonably Restrictive Laws• Whether the requirements will:   – adversely affect the farm o...
Right to Farm at the Local Level• NYSDAM encourages localities to provide for a  Right to Farm exemption in its local land...
Volunteer Farm Labor
Volunteer Labor on Farms/ CSA’s• Types  – “Work Share” or “Half    Work Share”  – Travel-Based    Volunteers  – Informal W...
“Compensated” Farm Volunteers• Minimum Wage?  – Fair Labor Standards Act    (“FLSA”)  – definitions of    “employee” and  ...
“Compensated” Farm Volunteers• Analysis:  – Is the volunteer working in    expectation of    compensation?  – Is the volun...
Is the Farm Exempt from Federal             Minimum Wage?• If a farm utilizes fewer than 500 man-days of  labor in any cal...
Insurance• Workers Compensation• Farm liability and  commercial insurance  policies typically exclude  coverage for “emplo...
Miscellaneous Legal Issues
Need for Farm Succession Planning• GrowNYC’s Report: ”Farmers on the Edge: An  Assessment of Greenmarket Farmers’ Needs, a...
Miscellaneous Concerns• “Guide to Farming in New York State”   – Leases - #1        • Long-term contracts   – Farm Vehicle...
Miscellaneous Concerns• Food Procurement  and Preference Laws• Environmental  Regulations  – CAFO’s/ AFO’s• Agri-Tourism• ...
Building an Agriculture Law Practice• Agriculture law is really  every kind of  law, focused towards a  specific industry•...
Building an Agriculture Law Practice• Get involved in industry  trade associations• Legal associations  – ABA, General Pra...
Think Outside the Box• What will be your  “special sauce?”  – New York Agriculture    Mediation Program  – Virtual Law Pra...
Business Networking• Find mentors• Remember that the  professional  relationships should  always be mutual• Social capital
Upcoming EventsABA Section on theEnvironment, Energy andResources (“SEER”) QuickTeleconference on Startingan Ag/Environmen...
Upcoming EventsCLE Webinar onCounselingFarmers, FoodEntrepreneurs on FoodLabeling Laws on May30, 2013 ($25 StudentRate)- A...
CLE Webinar Recordings• American Bar Association  – "Overview of Employment    and Labor Law for Farms    and Ranches”  – ...
Course: Survey to Food & Agriculture           Law Practice• July 1-5, 2013• 1 Credit Class• Open to Non-Pace  Students• S...
More Questions?• Fridays with Cari  Skype Convo  – First Friday of the    month from 2-3pm    ET  – Email me to RSVP at   ...
Please Stay in Touch• Send Me Snail Mail: 535 Fifth Avenue, 4th  Floor,      New York, NY 10017• Call Me: (212) 427-2049 (...
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Local Food Law - Pace Law School CLE

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I gave this presentation at Pace Law School on March 13, 2013. The recording is available for purchase from Pace Law School's CLE program. I touch upon several areas affecting the local food movement including cottage food operation law (or home processed food), on farm poultry slaughter regulations (including Article 5-A licenses), land use and zoning regulations including urban agriculture and the Right-to-Farm law, "compensated" volunteer farm labor, and a few miscellaneous topics including estate and succession planning for farms, farm leases, and food safety. I end my presentation with a few practical pointers for attorneys and law students who would like to start their own food and agriculture law practice.

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  • Land Use Urban AgAg DistrictsRight to Farm
  • Cottage Food Operation: Production of food products in a residential (non-commercial) kitchenNew York is one of many states that have a cottage food operation law.Cottage food law is state specific (i.e., there is no uniform standard) – there are big differences from state to state“Guide to Farming in New York State” – Fact sheet #28
  • Article 20-C has been included in your materialsFSI-303 application for food processing establishment license
  • FSI-989c – included in materialsNew York Registration If on a private water system (well), then the resident must have a water test analysis performed for Coliform, and have results in hand, before a home processor can be registered in the State of New York.
  • Commercial equipment is not considered ordinary kitchen facilitiesNote that a Home Annex will be subject to an Article 20-C license.
  • Article 20-C license is for food processorsThe 20-C exemption for home processors does not apply to direct internet sales (i.e., commercial on-line transactions). Use of the internet for communication or promotional purposes only is permissible.Home processors whose residences contain separate segregated facilities for food processing, may apply for licensing under Article 20-CAnyone who is seeking a Home Processing Exemption must contact NYSDAM to obtain a certificate – an annual water test for bacteria is required for all home processors on private water supplies. Internet sales are NOT allowed under this exemption.
  • Examples of bakery products-bread, rolls, cookies, cakes, brownies, fudge, and double-crust fruit piestempering chocolate or candy for molding or dipping is not allowed.See NFSI-898d, “Home Processing” Fact Sheet
  • See NFSI-898d, “Home Processing” Fact Sheet
  • Typically, if there is a complaintPotable water is required (municipal or treated well water)
  • A typical homeowner’s insurance policy usually does not provide coverage for commercial operations such as cottage food operations. Cottage food operators may also lose coverage on the structure/contents as a result of a loss resulting from the business (i.e. fire loss).Sample Exclusion: Liability coverage does not apply “to bodily injury or property damage because of or arising out of a business owned or financially controlled by an insured or by a partnership or joint venture of which an insured is a partner or member.”Although a commercial insurance policy will cover losses for general commercial liability (e.g., slip-and-fall), most policies do not provide coverage for products produced by cottage food operation labor. Recall coverage: Insurance coverage for product recall can be obtained, usually through a separate endorsement. Cottage food operators must evaluate their risk and the costs of insurance to determine the efficiency of maintaining the insurance.Jason’s blog – Colorado requires insurance.. New York does not. Some farmers’ market may require 1 mi.
  • Otherwise, must be harvested at a USDA facility or state-inspected facility 250 turkeys; 1000 chickens 1 turkey – 4 of another bird
  • A farmer may harvest and process chickens and turkeys that he/she raised on farm and may distribute this poultry without mandatory inspection if the following five criteria is met pursuant to under PPIA § 464(c)(4), 9 C.F.R. § 381.10(c), and 9 C.F.R. § 381.175Said exemption applies to so long as the slaughtering and processing are both completed on-site. The slaughter equipment used may be owned, rented or provided in the form of a Mobile Poultry Processing Unit (“MPPU”). Record-KeepingPoultry producers are required to keep records relating to the slaughter and sale of poultry products to consumers. USDA/FSIS or NYSDAM employees review such records to determine compliance with the 1000 Bird Limit Exemption. Please sample logs adopted from Cornell Small Farms Program, “On-Farm Poultry Slaughter Guidelines and Regulations” (June 2012), which is included in your materialsPer FarmThis exemption applies per farm – not per farmer. If a New York “farm” is harvesting more than 1,000 chickens or 250 turkeys in an on-farm slaughter facility, then it is required to have an Article 5-A License; otherwise, it must harvest its birds at a USDA processing facility.
  • Thus, a poultry farmers operating under this exemption should not sell directly to a hotel, restaurant or other type of institution.
  • Poultry products may not be packaged in a container that contains any substances that may adulterate the contents or injurious to human health. The goal is to prevent moisture loss from the meat (i.e., freezer burn) and keep air out. Packaging options for poultry products may include: freezer paper, tray wraps, plastic wraps, barrier films and meat trays, and heat-shrink bags that are not vacuumed. Cryovac packaging is not allowed under this particular processing exemption.
  • If poultry farmer makes a nutritional claim, then a nutritional label must also be included. The Department of Weights and Measures will need to certify the scales used to ensure that the digital scales are suitable for commerce accurately measure the weight in pounds. Sample Product Description from Cornell Small Farms Program, “On-Farm Poultry Slaughter Guidelines and Regulations” (June 2012), included in your materials
  • Pages 10-14 of On-Farm Poultry Slaughter Guidelines & Regulations (June 2012) Consider implementing in employee handbookHave folks sign off agreeing to policies
  • Designed to prevent the creation of unsanitary processing conditions and ensure that food products are wholesome and unadulterated. SOP’s describe how to carry out and document safe food handling and personal hygiene practices (“Good Management Practices”).Pages 15-17 of On-Farm Poultry Slaughter Guidelines & Regulations (June 2012) Print out for notes (too voluminous)
  • Pages 18-20 of On-Farm Poultry Slaughter Guidelines & Regulations (June 2012) Print out for notes (too voluminous)HACCP Plan – focuses on eliminating, minimizing or reducing food safety hazards to an acceptable level. HACCP Training Course is recommended Page 19 – identifies the process step, potential hazard, and recommended control measures
  • Custom slaughterer- person who slaughters for others when the meat is used for household use, non-paying guests and employees s/l/a they aren’t in the business of buying or selling carcasses or meat products250 turkeys; 1000 chickens 1 turkey – 4 of another bird
  • 1 NYCRR section 245.1FSI-1200 application form for “Poultry-Small Animal Slaughterhouse License”$200 application feeMust furnish evidence:Good character, experience and competencyEstablishment has adequate facilities and equipmentCleanliness of the premises can be maintainedMeat products won’t become adulterated
  • See outline for more information
  • To date, there are no known cases of food borne illness traced back to a small-scale producer slaughtering poultry on-farm in uninspected facilities; nonetheless, many New York poultry producers have trouble obtaining farm insurance coverage (including product liability coverage) for on-farm slaughter facilities. It is paramount that farmers work with their insurance agent to ensure it has proper coverage before undertaking on-farm poultry slaughter.
  • From Patricia Salkin’s materialsThe following zoning tools can be used to promote small-scale agriculture production within city limits: Comprehensive Plans. This is the over-arching plan upon which land use regulations are adopted. It is important that the comprehensive plan itself emphasize the importance of small-scale commercial agriculture production within the city limits and the promotion of locally grown food. Zoning Ordinances. If various types of urban agriculture and agri-tourism (or agri-tainment) are not addressed in the zoning ordinances/code, local governments should amend existing provisions allowing for same. Common restrictions include road setbacks, lot size, dimensions, signage size and placement, site plan requirements, screening, etc.  Definitions. Local governments should consider adding/clarifying definitions in “rooftop garden,” “community garden,” “green roof,” “small scale urban agriculture,” “animal harvesting facility,” “food distribution facility” etc. (or whatever the appropriate terms are for that locality) to ensure that the definitions are clear to the community. Uses Allowed As of Right. Zoning ordinances typically describe the permitted uses, as of right, within a given district. As such, food production should be prescribed within certain districts as a matter of right.  Accessory Uses. Accessory uses are incidental to the primary use of the building on which they are located. For example, a rooftop garden on a residential building in Brooklyn would be an accessory use. Local governments can amend zoning laws to allow small-scale production agriculture.  Special Use or Conditional Use Permits. Some local governments allow for small scale agriculture production through special use or conditional use permits. Such uses are now allowed “as of right.” Instead, they are subject to additional review by the local zoning board or legislative body. Said procedures should not be overly burdensome for the agriculture producers and should not allow for unfettered discretion by the reviewing entity. In such cases, the zoning ordinance may allow an opportunity for public input. Unique prohibitions may take place with special use or conditional use permits regulating hours of operation (e.g., on-site farm stand).  Overlay Districts. Put simply, an overlay district is used as a mechanism to preserve certain areas (e.g., historic area, hazard prevention) or promote certain types urban/suburban agriculture. Home-Based Business Regulations. Zoning ordinances should consider an allowance for small-scale home-based food processing (cottage food operations) at residential locations and on-site farmstands.
  • In People v. McOmber, 206 Misc. 465, 469-470 (NY Sup. Ct., Lewis Co. 1954) the court held that honey bees may be kept but the owner as the duty to keep the bees so that they do not “annoy, injure or endanger the comfort, repose, health or safety of any considerable number of persons or to render a considerable number of persons insecure in the use of their property.”  
  • The purpose of agricultural districts is to encourage the continued use of farmland for agricultural production. NY Agric. & Mkts § 300 etseq. sets forth agricultural districts in the State of New York. “The socio-economic vitality of agriculture in this state is essential to the economic stability and growth of many local communities and the state as a whole. It is, therefore, the declared policy of the state to conserve, protect and encourage the development and improvement of its agricultural land for production of food and other agricultural products.” See NY Agric. & Mkts § 300.
  • Article 25-AA of the Agric. & Mkts Law authorizes the creation of local agriculture districts pursuant to landowner initiative, preliminary county review, state certification and county adoption. Most counties in New York have placed agricultural land in state certified agricultural districts. While they are county-created and state-certified, towns have no authority over agricultural districts. Agricultural districts should not be confused with agricultural zoning that may exist in some towns.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.
  • Definitions on pages 30-32 in the outline from section 301
  • NYSDAM has not defined what is a “sound agricultural practice”The Right to Farm law in New York authorizes NYSDAM to issue opinions, upon request, concerning the soundness of specific agricultural practices. If the Commissioner determines that a practice is sound, it shall not constitute a private nuisance. This protects farmers in cases where neighbors or others complain about farming activities.This provision could be problematic for both the local government and farm operations. AML §308 (New York’s Right to Farm law) does not define “sound agricultural practices.” The Department does not make prospective judgments on agricultural practices and has not defined what constitutes a sound agricultural practice. Section 308 requires that agricultural practices be evaluated on a case-by-case basis. Department staff review each practice, for which an opinion is requested, on its own merit and a Commissioner’s Opinion only examines the condition and management of the practice in effect at the time of the review. Further, the absence of an opinion from the Commissioner does not mean that a particular practice is unsound.Under the procedures followed by the Department in conducting sound agricultural practice reviews, generally staff consult the landowner, neighbors, State and local agencies, pertinent literature and experts in the particular field of interest. The landowner whose practice is under review generally needs to be a willing participant for the Department to fully evaluate a practice and reach a valid conclusion as to its soundness. Information regarding management of the practice and grant of access to the farm premises is usually needed from the farmer. The review process is time consuming and generally takes from six to twelve months before an opinion is issued. To require a farmer to obtain an opinion to avoid prosecution or permitting under the local law would be unduly burdensome and, generally, unreasonably restrictive.
  • Where local standards have exceeded the State standards, the Department has, in many instances, found the local laws to be unreasonably restrictive. Each law, however, is examined on its own merits. If a local government believes that local conditions warrant standards that differ from the State’s, the Department considers those conditions in evaluating whether the local standards are unreasonably restrictive.Article 78 Appeal
  • Mediation – New York State Agriculture Mediation Program
  • The use of volunteer labor has growing popularity. Many small farms, especially CSA’s are using volunteer labor. Why Use volunteer labor? Vegetable production in particular is incredibly labor intensive. In fact, with some operations, 50% of production costs can be for labor. Some CSA farms grow between 30-50 types of fruit and vegetable limiting ability to use mechanic solutions. Hand labor can sometimes replace chemical weed control. Furthermore, it is a risk management tool for farms selling products direct to consumers. There are a limited number a risk management tools available to small farms – crop insurance can be cost prohibitive for some operations.  
  • Formal Worker Shares-Rather than paying for his or her share in cash, a worker share performs labor for the farm, generally from 4-6 hours per week for 20 to 30 weeks. Typicallyformalized through application and selection processes. Approximately 30-50% of CSA’s use worker shares. More info: Sharing the Harvest: A Citizen’s Guide to Community Supported Agriculture by Elizabeth Henderson and Robyn VanEn.WWOOFers and Other Travel-Based Volunteers-- The nonprofit organization World Wide Opportunities on Organic Farms, originating out of the UK, placement program for volunteers around the globe. After registration, a potential volunteer is permitted to search the database of farms willing to accept volunteer workers. After making contact, farmer and potential volunteer (the “WWOOFer”) negotiate a private agreement, generally to exchange labor for temporary housing and food. WWOOF-USA lists 1593 farms who accept WWOOFers. See www.wwoof.org. Informal Worker Shares-The worker share concept has expanded to include less formal arrangements where compensation is understood, but not necessarily specified to the same detail as a formal worker share program. For example, farmers’ market vendors may utilize volunteers who work in exchange for leftover produce. With CSA’s, customers may provide space and assistance distributing produce on their property in exchange for a share. These worker shares do not go through an application and selection process, instead they are chosen based on the resources they can provide to the farmer.Casual Volunteers—With expanding interest in food production, many farms are taking advantage of this opportunity by providing all manner of volunteer opportunities on their farms. Tour groups are one example: schools and churches may arrange to visit a farm and assist with a large task. Another emerging concept is the “crop mob:” a large group of volunteers that descend on a farm to accomplish a project. Generally, these individuals receive something in return for their labor such as a meal or farm products..
  • Although the FLSA defines “employ” as to suffer or permit to work, a definition which would encompass any compensated or uncompensated volunteer arrangement, Walling v. Portland Terminal Co., 330 U.S. 148 (1947) confined the definition to exclude those who, “without promise or expectation of compensation, but solely for his personal purpose or pleasure, worked in activities carried on by other persons either for their pleasure or profit.” The case opened the door for volunteers to perform labor for a business without implicating the minimum wage requirements of the FLSA. FLSA regulations define a volunteer as, “an individual who performs service for a public agency for civic, charitable, or humanitarian reasons, without promise, expectation or receipt of compensation for services rendered.” 29 C.F.R. § 553.101. This definition would exclude volunteering for a for-profit business and volunteering in return for compensation. In the context of volunteers who receive in-kind compensation but do not work for their own educational objectives, and work for a for-profit business, development of a volunteer exception to the FLSA is minimal.
  •  Is the volunteer working in expectation of compensation?Courts will explore whether the purported volunteer receives compensation in exchange for the labor, along with the individual’s motivation for accepting the sub-minimum wage compensation. Compensation may be provided as cash or in-kind services. 29 U.S.C. § 203(m). For example, providing food and shelter to otherwise homeless individuals in exchange for their labor is compensation. Tony and Susan Alamo Foundation v. Sec’y of Labor, 471 U.S. 290, 291 (1985). However, if the homeless individual primarily seeks work-related rehabilitation, and the food or shelter is provided to facilitate this goal, then although it may be in-kind compensation, the volunteer has not worked in expectation of it. Williams v. Strickland, 87 F.3d 1064, 1068 (9t Cir. 1996). Likewise, if the volunteer recovers only expenses, such as gas mileage to and from the event, the reimbursement merely enables the volunteer to deliver service and does not create an expectation of compensation. U.S. Department of Labor, Wage and Hour Division, Opinion Letter, FLSA2006-18..Courts may also consider how closely the arrangement resembles a traditional employment relationship. When volunteers receive more compensation for better performance or the equivalent of commission (Tony and Susan Alamo Foundation v. Sec’y of Labor, 471 U.S. 290, 291 (1985)), or work a traditional 8-hour day, report in for shifts, and use the same tracking system for hours worked as regular employees (Archie v. Grand Central Partnership, Inc., 997 F.Supp. 504, 535 (S.D.N.Y. 1998)) the court is more likely to find the business owes minimum wage. Is the volunteer displacing employees?Employees are displaced where a volunteer fills a role that is part of the regular, necessary complement of workers. Donovan v. American Airlines, Inc., 686 F.2d 267 (5t Cir. 1982); Archie v. Grand Central Partnership, Inc., 997 F.Supp. 504, 535 (S.D.N.Y. 1998). The displacement may also take the form of a reduction in hours for current employees. U.S. Department of Labor, Wage and Hour Division, Opinion Letter, FLSA2002-9. Also, if volunteers are doing the same work as otherwise regularly employed persons Donovan v. American Airlines, Inc., 686 F.2d 267, 272 (5t Cir. 1982), the business could continue to provide the same level of service or production without the engagement of volunteers or the court may find an employee has been displaced. Solis v. Laurelbrook Sanitarium and School, Inc., 642 F.3d 518, 530-531 (6t Cir. 2011). On the other hand, if employees supervise volunteers the court may assume that no employee has been displaced because the additional labor required for supervision makes up for any additional work the volunteer might accomplish. Solis v. Laurelbrook Sanitarium and School, Inc., 642 F.3d 518, 530-531 (6t Cir. 2011).Does the volunteer grant the business a competitive advantage?Courts have shown some willingness to carve out an exception where the use of volunteer labor does not grant a competitive advantage, even though the volunteer may displace an employee. Where a service position was created to accommodate conscientious objectors within a nonprofit organization, the court declined to find the volunteer was an employee. Penn Community Services, Inc. v. Isaacson, 450 F.2d 1306 (4t Cir. 1971). In a second situation where the entire operation would cease to exist without the volunteer opportunities filled by students and where employees served out of religious conviction, the court found the business did not operate in a regular marketplace. Solis v. Laurelbrook Sanitarium and School, Inc., 642 F.3d 518, 520, 531 (6t Cir. 2011). If educational benefits are a part of the discussion:Recognizing that some work positions can actually benefit the volunteer more than the business, courts have found that if a volunteer receives a high quality educational experience, the employer need not also provide a minimum wage. The key in this analysis is whether the individual or the business primarily benefits from the arrangement. McLaughlin v. Ensley, 877 F.2d 1207, 1210 (4t Cir. 1989); Solis v. Laurelbrook Sanitarium and School, Inc., 642 F.3d 518, 525 (6t Cir. 2011).  In assessing an educational experience, some courts have drawn a distinction between work experience alone and an educational program. Work experience, such as simply following employees on their stocking routes, constitutes poor quality education because it relates only to the specific business and not to an industry in general. McLaughlin v. Ensley, 877 F.2d 1207, 1209 (4th Cir. 1989). Adding counseling, orientation, or work progress reports to a work experience does not bring it up to the level of an educational program either. Archie v. Grand Central Partnership, Inc., 997 F.Supp. 504, 533 (S.D.N.Y. 1998). On the other hand, where interns emerge from an experiential learning position fully qualified for employment, the court is more likely to find that the pursuit primarily benefitted the intern. Donovan v. American Airlines, Inc., 686 F. 2d 267, 273 (5t Cir. 1982). Whether the balance of the benefit tips towards the intern or the business also depends on the role of volunteers in light of the employer’s overall business model. In one case illustrating this distinction, the business had three times as many volunteers as compared to regular employees and could not possibly have satisfied its service contracts without volunteers. Archie v. Grand Central Partnership, Inc., 997 F.Supp. 504, 535 (S.D.N.Y. 1998). But in a separate case where trainees provided a significant amount of the business’ useful work, the state had accredited the internship program and employees spent a significant amount of time training interns. As a result, no minimum wage was owed. See Solis v. Laurelbrook Sanitarium and School, Inc., 642 F.3d 518, 532 (6t Cir. 2011). 
  • Since the man-day threshold is sooner exceeded where the operation uses more workers for shorter work periods, a farm with a significant volunteer labor force may exceed the threshold even without full-time employees. Also, the small farm exception is limited to agricultural labor. 29 U.S.C. § 203(f), 29 C.F.R. Part 780, Subpart B. Diversified and direct to consumer farms that utilize volunteer labor may also unwittingly assign non-agricultural labor to volunteers, eliminating small farm exemption from federal minimum wage for the entire workweek in which the labor was performed. 29 C.F.R. § 780.11.
  • Workers’ Compensation State workers’ compensation statutes may exempt agricultural operations, volunteers, or small businesses, each of which may be available to a farm utilizing volunteer workers. The Workers’ Compensation Research Institute has a table available for purchase in the past that lists the agricultural, volunteer and small business exemptions available in each state. Based on the 2012 table for agriculture, 12 states have no agricultural exemption, 12 offer a total exemption, and the remaining provide an exemption based either on wages, total hours employed or number of employees, or the precise type of agricultural labor. Specific caution is needed with agricultural exemptions as the definition of agricultural labor limits its applicability. See 40 A.L.R. 6th 99, Validity, Construction, and Application of Statutory Provisions Exempting or Otherwise Restricting Farm and Agricultural Workers from Workers’ Compensation Coverage. If a workers’ compensation exemption is available based on number of employees or total payroll, volunteer hours and compensation may need to be included in the calculation.  The definition of “volunteer” as used in connection any available volunteer exception to workers’ compensation is also problematic for farm volunteers. The Wisconsin volunteer exemption for workers’ compensation, for example, is limited to,” a volunteer for a nonprofit organization …who receives from that nonprofit organization nominal payments of money or other things of value totally not more than $10 per week...,” which would not encompass a for-profit farm volunteer. Wis. Stat. Ann. § 102.07(11m). Even farms that do choose workers’ compensation may have difficulty with the payroll audit considering the non-traditional compensation structure. Anecdotally, some workers’ compensation providers have also disagreed with farmers on whether the compensated volunteer is an employee and may be eligible for coverage at all in states that exempt volunteers. Farm Liability Policies Farm liability insurance policies will generally exclude coverage for injury to “employees,” and standard forms fail to define employee in a way that would distinguish on the basis of compensation. Utilizing a common law definition of employee, the door is certainly open for denial of bodily injury claims involving compensated volunteers.   Commercial General Liability Policies Although a commercial general liability (“CGL”) policy does cover volunteer workers, they are, “not paid a fee, salary or other compensation by you or anyone else for their work performed for you,” in the Insurance Services Office CGL standard form. Compensated farm volunteers will fall outside this definition. A CGL policy also excludes bodily injury to employees, which follows the common law definition, which primarily is designed to distinguish between independent contractors, and employees rather than volunteers and employees. The outcome of a compensated volunteer injury claim on a CGL policy is unpredictable. 
  • Succession planning article All of this emphasizes the need for farm estate and succession planning. However, I noticed on Page 9 that many of the farmers complained of having ample time to “apply for loans, to look for land, to draw up succession plans.” Succession planning is easy to put off – so I get it.Book by Neil Harl “Farm Estate and Business Planning”
  • Included in your materials
  • Sanitation requirements for the direct marketing of food products is on page 42 of outline
  • “Equine Law and Horse Sense” by Julie Fershman – Michigan
  • Dr. Stan BendaJason Foscolo, Esq.Alan Fowler, Esq.Prof. Erin HawleyLeon Letter, Esq.Lindsey Peebles, Esq.Amy Salberg, Esq.Jean Terranova, Esq.The live webinar will last from 2-4pm ET.This food law CLE will cover a myriad of food and alcohol labeling issues affecting food entrepreneurs, restaurants and agriculture producers that sell their products direct to the consumer. The CLE will give an overview of the regulatory framework at the federal, state and local levels explaining the roles of various government agencies including the Food and Drug Administration (“FDA”) and U.S. Department of Agriculture (“USDA”). The CLE will also briefly discuss the following:1) Labeling of fish, meat, poultry and eggs sold in interstate commerce vs. intrastate commerce (including egg and meat grades);2) Labeling of alcoholic beverages sold in interstate commerce vs. intrastate commerce;3) Food Allergen Labeling & Consumer Protection Act; 4) FDA “Front of Package” Labels;5) Nutrient Claims; 6) National Organic Program; 7) Ambiguous and (oftentimes) misunderstood food labels (e.g., “natural”, “healthy”, “local”, “cage free”, “free range”, “pure”, “fresh squeeze”, “high fiber”, “grass-fed”, “pasture-fed”, “humane);8) USDA Process Verified Programs (e.g., Non-Hormone treated Verified Beef Cattle, Anti-Biotic Free Verified Beef Cattle, Naturally Raised); 9) Marketing Claims including FSIS Animal Raising Claims (e.g., Angus Beef); 10) Labeling for cottage food operations (i.e., home-based kitchens); 11) Labeling of Genetically Modified Organisms (“GMO’s or “GM”); 12) Labeling for kosher and halal food; and,13) Labeling in a restaurant (including nutrient content claims, health claims, dietary guidance, use of undefined terms, and ready-to-eat foods not for immediate consumption).This two-hour CLE will be comprised of approximately 100 minutes of lecture and 20 minutes of Q & A. Please stay tuned on information on how to register. Recordings will be available for purchase from the ABA.
  • This course will give a cursory overview of the laws regulating the U.S. food and agriculture system. It will touch on the various practice areas affecting production agriculture and food entrepreneurs including farm programs, disaster assistance, environmental law, financing, right-to-farm, employment/labor law, livestock sales, humane livestock slaughter, farm animal welfare, biotechnology, food safety, and the National Organic Program. This course will also touch upon some policy discussions and trends including sustainability, food labeling, urban/ suburban agriculture, food justice, and local food movement (including the direct marketing of food products such as farmers markets and Community Supported Agriculture).
  • Local Food Law - Pace Law School CLE

    1. 1. Survey of Local Food Law Pace University, School of Law March 13, 2013 By Cari B. Rincker, Esq.
    2. 2. Overview of Discussion• Cottage Food Operation Laws• Poultry Slaughter Regulations• Land Use & Zoning• Volunteer Farm Labor• Miscellaneous Topics• Starting an Agriculture Law Practice
    3. 3. NY Cottage Food Operation Law
    4. 4. Article 20-C Licenses• Food processing establishments in New York are subject to biennial license requirements under Article 20-C of NYS Agric. & Mkts § 251- z-1 et sec. – Record keeping – Inspections – Education
    5. 5. Exemption to Article 20-C Licensing“Home Processed Food” may beexempt from Article 20-Clicensing if certain conditions aremet ; however, they still must beregistered with NYSDAM’sDivision of Food Safety andInspection (FSI-989c)
    6. 6. Definition of “Home Processed Food” 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. . . .” (Emphasis added).
    7. 7. Article 20-C License Exemption• 4 conditions must be met: – All finished product containers are clean, sanitary and properly labeled. – All home processed foods produced under this exemption are neither adulterated nor misbranded. – Glass containers for jams, jellies, marmalades and similar products are provided with suitable rigid metal covers. – All home processed foods are sold only within New York State.See NFSI-898d, “Home Processing” Fact Sheet
    8. 8. Article 20-C License Exemption• Restricted to the following non-potentially hazardous home processed foods: – Bakery products 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)
    9. 9. Article 20-C License Exemption• If the product requires refrigeration then it is not allowed to be produced as a Home Processor. – 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 – Sauces, Salsas, Marinades
    10. 10. Inspections for Home ProcessorsEven though Home Processorsare exempt under the Article20-C license requirement, theyare still subject to inspection byNYSDAM
    11. 11. Food LabelingExemption to Article 20-CLicensing does notexempt the cottage foodoperation from foodlabeling requirements
    12. 12. Land Use & Zoning Considerations• Commercial operations in a residence may conflict with the local zoning code that prohibit certain commercial activities in residential zones.• Variances or special use permits may be required to operate a cottage food operation out of a home.
    13. 13. Insurance• Standard homeowner’s insurance policies typically do not provide coverage for commercial operations such as cottage food operations.• Advise clients participating in cottage food operations to look into a commercial policy and/or food recall insurance
    14. 14. On-Farm Poultry Slaughter Regulations
    15. 15. Producer/Grower 1000 Bird Limit ExemptionA New York poultryproducer who processesand sells less than 1000chickens or 250 turkeys(i.e., 1 turkey = 4 chickens)may be subject to the 1000Bird Limit Exemption underthe Poultry ProductInspection Act (“PPIA”)
    16. 16. Producer/Grower 1000 Bird Limit Exemption• 5 Criteria under Poultry Product Inspection Act – The poultry producer slaughters no more than 1,000 healthy birds of his/her own farm in a calendar year for distribution as human food; – The poultry producer does not engage in buying or selling poultry products other than those produced from poultry raised on his/her farm; – The slaughter and processing are conducted under sanitary standards, practices, and procedures that produce poultry products that are sound, clean, not adulterated or misbranded, and fit for human food; – The poultry producer keeps the required records; and, – The poultry product does not move in interstate commerce (i.e., exchange or transportation of the poultry product stays within the state of New York).
    17. 17. Producer/Grower 1000 Bird Limit ExemptionAlthough sales and transportationof poultry products under thisexemption are only required to stayintrastate, NYSDAM’s 2009guidelines suggest that farmsoperating under the 1000 birdexemption should maintain controlof its product through the saledirectly to the consumer bylimiting sales to on-farmoutlets, roadside stands, orfarmers’ markets
    18. 18. Producer/Grower 1000 Bird Limit Exemption• Food Packaging – Packaging materials must be safe for its intended use pursuant to the Food Drug & Cosmetic Act (“FDCA”) – Labels must be approved by the FDA
    19. 19. Producer/Grower 1000 Bird Limit Exemption• Food Labeling – New York has adopted the USDA FSIS Mandatory Labeling Requirements. – Following items are required to be on the principal display panel for all sales of meat or poultry sold in New York: • 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”).
    20. 20. 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).
    21. 21. 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
    22. 22. (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
    23. 23. Hazard Analysis Critical Control Point (“HACCP”) PlanEven though a HACCP Plan is not required for birds slaughtered andprocessed under the Producer/Grower 1000 Bird Limit Exemption it ishighly 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
    24. 24. Article 5-A Licenses• Poultry sold intrastate not subject to the Producer/Grower 1000 Bird Limit Exemption• Exclusions include the following: – Bona fide farmer who harvests birds for household use – Custom slaughter – Under 1000 bird-equivalent – Person or not-for-profit who donates wild game• Prohibited from cities with a population over 1 million & within 1500 feet of a residential dwelling
    25. 25. Article 5-A License• Application for 2 year Article 5-A License – NYSDAM may request an examination of the premises equipment and facilities – Complete drawing and specifications for new construction, new business and alterations of existing premises must be submitted to NYSDAM
    26. 26. Article 5-A Licenses• Subject to NYSDAM Inspections – Results may be made available to the public upon request• Sanitation and Cleanliness Requirements• Animal Health Requirements• Human Health Requirements• Animal Handling Techniques
    27. 27. InsuranceCommercialInsuranceProducts LiabilityInsurance
    28. 28. Land Use & Zoning
    29. 29. Zoning Tools Utilized to Promote Small-Scale Agriculture Production• Comprehensive Plans• Zoning Ordinances• Definitions• Uses allowed As of Right• Accessory Uses• Special Use or Conditional Use Permits• Overlay Districts• Home-Based Business Regulations
    30. 30. 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.
    31. 31. 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
    32. 32. Agriculture DistrictsArticle XIV, Section 4 of theNYS Constitution providesfor the policy of New Yorkto encourage thedevelopment andimprovement of itsagriculture lands for theproduction of food andother agricultural products
    33. 33. 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.
    34. 34. Agriculture Districts• “Farm operation” under section 305-a, sub. 1: – “...the land and on-farm buildings, equipment, manure processing and handling facilities, and practices which contribute to the production, preparation and marketing of crops, livestock and livestock products as a commercial enterprise, including a commercial horse boarding operation …, ‘timber processing’ … and ‘compost, mulch and other biomass crops’ …. – production, management and harvesting of ‘farm woodland’ – “Such farm operation may consist of one or more parcels of owned or rented land, which parcels may be contiguous or noncontiguous to each other."
    35. 35. 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
    36. 36. 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].
    37. 37. 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.
    38. 38. 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.
    39. 39. Volunteer Farm Labor
    40. 40. Volunteer Labor on Farms/ CSA’s• Types – “Work Share” or “Half Work Share” – Travel-Based Volunteers – Informal Worker Shares – Casual Volunteers
    41. 41. “Compensated” Farm Volunteers• Minimum Wage? – Fair Labor Standards Act (“FLSA”) – definitions of “employee” and “volunteer”
    42. 42. “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?
    43. 43. 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.
    44. 44. 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
    45. 45. Miscellaneous Legal Issues
    46. 46. Need for Farm Succession Planning• GrowNYC’s Report: ”Farmers on the Edge: An Assessment of Greenmarket Farmers’ Needs, and the Growing Challenges of Keeping Their Farms Viable.” – 43% of Greenmarket farmers say they will retire in the next twenty (20) years and 58% of Greenmarket farmers say that succession planning is a priority area of assistance. – According to the survey, nearly 2/3rd of Greenmarket farmers have been running their farm for over a decade. – 42% of the farmers intended to keep their property in agriculture production in the future but did not have a specific plan to do so.
    47. 47. Miscellaneous Concerns• “Guide to Farming in New York State” – Leases - #1 • Long-term contracts – Farm Vehicle Regulations - #7 – Business Plans - #12 • Business formations/ organizations/ DBA’s – Labor Laws - #18 – Payroll and Worker Documentation - #19 – Agricultural Assessments - #21 – Food Marketing Regulations - #27 – Sales Tax - #29 – Grant Opportunities - #31
    48. 48. Miscellaneous Concerns• Food Procurement and Preference Laws• Environmental Regulations – CAFO’s/ AFO’s• Agri-Tourism• Contract drafting• Food safety
    49. 49. Building an Agriculture Law Practice• Agriculture law is really every kind of law, focused towards a specific industry• Short/long term goals with practice – Begin with the end in mind – Think about personal brand – What segments of the industry do you want to work with
    50. 50. Building an Agriculture Law Practice• Get involved in industry trade associations• Legal associations – ABA, General Practice, Solo & Small Firm Division’s Agriculture Law Committee – American Agriculture Law Association• Community organizations
    51. 51. Think Outside the Box• What will be your “special sauce?” – New York Agriculture Mediation Program – Virtual Law Practice – Social Media – Unbundled Legal Services – Crossover between ag/ non-ag clients
    52. 52. Business Networking• Find mentors• Remember that the professional relationships should always be mutual• Social capital
    53. 53. Upcoming EventsABA Section on theEnvironment, Energy andResources (“SEER”) QuickTeleconference on Startingan Ag/Environmental LawPractice on April 9, 20132pm ETwww.facebook.com/rinckerlaw
    54. 54. Upcoming EventsCLE Webinar onCounselingFarmers, FoodEntrepreneurs on FoodLabeling Laws on May30, 2013 ($25 StudentRate)- ABA GP Solo AgricultureLaw Committee
    55. 55. CLE Webinar Recordings• American Bar Association – "Overview of Employment and Labor Law for Farms and Ranches” – “Counseling the Local Food Movement” – “Crop and Livestock Insurance from the Ground Up”
    56. 56. Course: Survey to Food & Agriculture Law Practice• July 1-5, 2013• 1 Credit Class• Open to Non-Pace Students• SUSAN A. SCHNEIDER, FOOD, FARMI NG & SUSTAINABILITY (2010)
    57. 57. More Questions?• Fridays with Cari Skype Convo – First Friday of the month from 2-3pm ET – Email me to RSVP at cari@rinckerlaw.com – Cari.Rincker (Skype)
    58. 58. 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

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