Transcript What is Local Food - Vermont Bar Association

Food Law: An Introduction
& How It Relates to Local Food
Vermont Bar Association, June 4, 2012
Marne Coit, Partner
Greenfield Research & Consulting LLC
www.greenfieldrc.com
Presentation Overview
I.
Background
II.
Federal Regulation of Food
a.
b.
III.
Overview of Agency Authority
Labeling
Food Law & Local Food
a.
b.
c.
What is Local Food
Legal Issues in Direct Marketing
Federal Government & Local Food
What is Food Law?
• Definition of Agricultural Law: laws that apply
to the business of farming
– Bankruptcy
– Credit
– Estate planning
– Property/Land use
– Farm workers
– Commodity programs
What is Food Law?
• Definition of Food Law: laws that apply to
food items grown/raised on farms, on farm
and beyond
– Labeling
– Food safety
– National Organic Program
– Direct marketing
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Farmers markets
CSAs
Agritourism/PYO operations
Farm stands
What is Food Law?
History:
Agricultural Law – 1980s farm financial crisis
Food Law – more recent
What is Food Law?
Keep in Mind:
• Overlap Between Agricultural and Food Law
• May be relevant federal, state and/or local laws
Presentation Overview
I.
Background
II.
Federal Regulation of Food
a.
b.
III.
Overview of Agency Authority
Labeling
Food Law & Local Food
a.
b.
c.
What is Local Food
Legal Issues in Direct Marketing
Federal Government & Local Food
Federal Regulation of Food
Basic Framework & Authority
USDA:
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Meat – Federal Meat Inspection Act
Poultry – Poultry Products Inspection Act
Egg products – Egg Products Inspection Act
National Organic Program – Organic Foods
Production Act
Federal Regulation of Food
Basic Framework & Authority
FDA:
• Everything else (including shell eggs) - Federal
Food, Drug, and Cosmetic Act
– FDA originally part of the USDA
– 1940 moved to what is now Department of Health and
Human Services
Presentation Overview
I.
Background
II.
Federal Regulation of Food
a.
b.
III.
Overview of Agency Authority
Labeling
Food Law & Local Food
a.
b.
c.
What is Local Food
Legal Issues in Direct Marketing
Federal Government & Local Food
Labeling
• Federal Food, Drug, and Cosmetic Act (FDCA)
– First passed in 1938
– Prohibits misbranded and adulterated food/drink from
entering interstate commerce
• Adulterated – contains substance that is injurious
to health
• Misbranded – if label is false or misleading
– Should be understandable by “ordinary
individual”
21 U.S.C. § 343(f)
Labeling
• Federal Food, Drug, and Cosmetic Act (FDCA)
– Requires labeling of packaged food
• name of the food
• net weight
• name and address of manufacturer or
distributor
• list of ingredients
Labeling
• Federal Food, Drug, and Cosmetic Act (FDCA)
– Nutrition Information
• Serving size
• Number of servings per container
• Calories
• Nutrients: fat, saturated fat, cholesterol,
sodium, total carbohydrates, complex
carbohydrates, sugars, dietary fiber, protein
Labeling
• Vermont Law – similar to FDCA
– Prohibits adulteration or misbranding of food
– Prohibits the sale of food that has been
adulterated or misbranded
– Is “misbranded” if labeling is false or
misleading
Labeling
• Food Allergen Labeling and Consumer
Protection Act (FALCPA)
– Requires major food allergens be identified on
label
• Includes: milk, eggs, fish, crustacean shellfish,
tree nuts, wheat, peanuts, soybeans
– Applies to packaged foods regulated under FDCA
Labeling
• Organic
– “Organic is a labeling term that indicates that
the food or...agricultural product has been
produced through approved methods that
integrate cultural, biological, and mechanical
practices that foster cycling of resources,
promote ecological balance, and conserve
biodiversity.”
USDA-AMS website
Labeling
• Organic Food Production Act of 1990
– NOP Final Rule published in 2000
• Applies to crops, livestock and other agricultural
products
• Must be produced and processed by standards
set by National Organic Program
– Synthetic fertilizers, sewage sludge, irradiation,
and genetic engineering are prohibited
Labeling
• Organic
– Farms, ranches, distributors and processors
must be inspected by certification agent
– There are more than 90 organic certification
agencies worldwide
• Example – Vermont Organic Farmers, LLC (VOF)
is the certification branch of Northeast Organic
Farming Association of Vermont (NOFA-VT)
Labeling
• Organic
– Four tiers of labeling for foods:
• *100% organic – all ingredients are certified
organic
• *Organic – at least 95% of ingredients are organic
• Made with organic ingredients – at least 70%
organic ingredients
• If product contains < 70% organic ingredients, may
specify which on ingredient label
– *May use the USDA organic seal
Labeling - Vermont
• Secretary of Agriculture, Food and Markets has authority
to
– Establish grades and standards for farm products
– Design labels for identifying these farm products
• Example: “Vermont maple syrup” shall only contain
100% maple syrup produced in Vermont
– Penalties for violation: up to $5,000 and/or up to 1
year in prison
6 VSA §§ 171, 173, 490, 498
Presentation Overview
I.
Background
II.
Federal Regulation of Food
a.
b.
III.
Overview of Agency Authority
Labeling
Food Law & Local Food
a.
b.
c.
What is Local Food
Legal Issues in Direct Marketing
Federal Government & Local Food
Food Law & Local Food
Q: What is local food? How is it defined?
A: It depends.
Food Law & Local Food
Legal Definitions
• There is no one standard legal definition
• Different definitions for different purposes
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Federal government
State/Local government
Nonprofit organizations
For-profit business
Others
Legal Definitions
• First From Federal Government: 2008 Farm Bill
– Title VI – Rural Development:
– Locally or Regionally Produced Agricultural Food
Products Loan Program:
“Locally or regionally produced agricultural food
product” means any agricultural food product that is
raised, produced, and distributed in—
(I) the locality or region in which the final product is
marketed, so that the total distance that the product
is transported is less than 400 miles from the
origin of the product; or
(II) the State in which the product is produced
7 U.S.C. § 6015
Legal Definitions
• Vermont’s Definition of “local" and "locally
grown" (for food and other goods)
– Originated within the state or
– Originated within 30 miles of where they are
sold
9 V.S.A. § 2465a
Presentation Overview
I.
Background
II.
Federal Regulation of Food
a.
b.
III.
Overview of Agency Authority
Labeling
Food Law & Local Food
a.
b.
c.
What is Local Food
Legal Issues in Direct Marketing
Federal Government & Local Food
Direct Marketing
• Most local food sales conducted through
direct marketing
– Farmers’ Markets
– Community Supported Agriculture (CSAs)
– Pick Your Own (PYO)
– Farm Stands
– Farm to School/Farm to Cafeteria
Direct Marketing
• Sales typically governed by oral agreements
• However, written contracts helpful in some
situations
– Example: if farmer selling to grocery store,
restaurant, or large institution
Direct Marketing
• Benefits of Written Contract
• Flexible Tool – can set terms to parties’ needs
• Clarifies parties’ expectations
• Provides assurance
• Aid in long-term business planning
Direct Marketing
• Possible Terms to Include
• Price
• Quantity
• Delivery
– How often, time of day, etc.
• Method of payment and terms
– Cash, Check, Invoice
• What happens if don’t have product or don’t
have enough
• Duration of deal
Direct Marketing
• Farmers’ Markets – Issues to Consider
– Establishing a Market
• Nonprofit Organizations
• Towns or Other Government Entities
– Is Permitting Needed
– Insurance
– Other applicable state/city regulations
Direct Marketing
• Farmers’ Markets – Issues to Consider
– Market Manager to Run Day-to-Day
Operations, including:
– Allocating stall space to vendors
– Fee collection
– Resolving disputes
– Farm inspections
– Opening the market for the day
Direct Marketing
• Farmers’ Markets – Issues to Consider
– Market Rules Can Include:
• When market opens
• How stall space is determined
• Fees
• What can be sold
• producer-only vs. outside goods/products
• produce vs. crafts
• Signage
• Parking
Direct Marketing
• Farmers’ Markets – Vermont
– Legal definition: when 2 or more vendors
gather to sell agricultural products
– As of 2010:
• 87 summer markets
• Total reported gross sales $7,993,334
–Agricultural products: $4,974,775
Direct Marketing
• Milk
– FDA’s Grade “A” Pasteurized Milk Ordinance
(PMO)
• First written in 1924; most recent update in
2011
– Covers: processing, packaging, and sale of
Grade "A" milk and milk products
– However, states regulate sales of raw milk
Direct Marketing
• Vermont: Raw Milk (updated 2009)
– Sales permitted for personal consumption
– Can only be sold from the farm
• Can’t sell or sample anywhere else
– Must comply with sanitation standards
– Recordkeeping requirements
• Example: maintain list of customers and one year
of transactions (customer name, date, amount
purchased)
– Labeling requirements
Direct Marketing
• Vermont – Raw Milk
– Two-tiered regulatory scheme
• Tier 1: 50 quarts/day or less
– May deliver if meet requirements of Tier 2
• Tier 2: 51-160 quarts/day
– Annual inspection
– Milk must be tested 2x/month
– Must register with Agency of Agriculture
– May deliver to customers home if
purchased in advance
Presentation Overview
I.
Background
II.
Federal Regulation of Food
a.
b.
III.
Overview of Agency Authority
Labeling
Food Law & Local Food
a.
b.
c.
What is Local Food
Legal Issues in Direct Marketing
Federal Government & Local Food
Federal Relationship to Local Food
• Example: Nutrition Programs
– Account for almost 80% of farm bill budget
– Programs Include:
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Supplemental Nutrition Assistance Program
Senior Farmers Market Nutrition Program
National School Lunch Program
Women, Infants, and Children (WIC) Farmers’
Market Nutrition Program
• Fresh Fruit & Vegetable Program
Federal Relationship to Local Food
• Supplemental Nutrition Assistance Program
(SNAP)
– Federal assistance program to help lowincome households pay for food
– Administered by the states
– Eligible foods include: bread, cereal, fruits,
vegetables, meats, fish, poultry, dairy
products, and seeds and plants which
produce food
– May be used at farmers’ markets
Federal Relationship to Local Food
• Supplemental Nutrition Assistance Program
(SNAP)
– Nationally:
– 2007: 26 million participants vs. Today: 46
million participants
– FY 2007: $33 billion vs. FY 2011: $76 billion
– Vermont:
– FY 2011: Vermont received $134,856,526 in
federal funding for SNAP
– On average, 92,038 individuals/month
participate
Federal Relationship to Local Food
• Other Programs Related to Local Food
– Know Your Farmer, Know Your Food
• USDA effort to support local and regional food systems
– USDA Farm to School
• Grants
– Farm to School Grant Program
– Farmers Market Promotion Program
– Community Food Projects
– Sustainable Agriculture Research & Education
Current Issue:
Is Our Current System For Regulating Food
Effective?
Additional Resources
• Vermont Agency of Agriculture Food and Markets:
www.vermontagriculture.com
• Vermont Farmers Market Association:
www.vtfma.org
• Northeast Organic Farming Association of Vermont
(NOFA-VT): www.nofavt.org
• Farmers’ Legal Action Group, Inc.: www.flaginc.org
• USDA: www.usda.gov
• Food Research and Action Center: www.frac.org
• National Agricultural Law Center:
www.nationalaglawcenter.org
Legal Disclaimer
This information is for general informational purposes only and is not to be
construed as legal advice or legal opinion. Use of this information does not
create an attorney-client relationship nor establish the protections of such a
relationship.
www.greenfieldrc.com
Food Law: An Introduction
& How It Relates to Local Food
Vermont Bar Association, June 4, 2012
Marne Coit, Partner
Greenfield Research & Consulting LLC
www.greenfieldrc.com