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Food Law Bits and Pieces, January 20 – 23

January 22, 2015


  • The Hill has its list of five food policy topics that should be addressed in the State of the Union speech.
  • The National Law Review reports on a recent ruling by a federal judge in Washington holding that manure, when not used as a soil amendment,  may be considered “solid waste” under the federal Resource Conservation and Recovery Act.
  • The New York Times exposes horrific treatment of animals at a USDA-funded research facility in Nebraska, where scientists are studying techniques to improve livestock yields. If you eat meat you are probably morally obligated to read this, but it’s a bummer.
  • According to a survey conducted by Oklahoma State University, consumers want labeling of foods containing “DNA” in roughly the same percentage as those who want labeling of GMOs. Just as with the old “dihydrogen monoxide” gag, the study reveals more about the scientific ignorance of the sample set than it does about the need or rationale for mandatory GMO labeling.
  • Geek-out on a favorite food law topics of ours: geographic indicators. A Georgia grower of vidalia onions took the state to court to prevent the commissioner of agriculture from enforcing a “no earlier than” packing date meant to keep immature vidalias off of store shelves.
  • After California’s new size regulations on poultry battery cages came into effect in January 2015, it looks like the cost of eggs is going up within the state.
  • More people want to ban raw milk than marijuana according to TIME.
  • Via NPR, the more broken down your chicken is, the more likely it will be contaminated with salmonella. Whole birds are relatively the “cleanest”. Parts and quarters are less so. We are not likely to buy ground chicken anytime soon.

Food Law Bits and Pieces, January 12 – 16

January 15, 2015








  • Eater.com has a long-form piece on a pastured foie gras farmer in Georgia. Friends call him “Chicken Jesus.” Money quote: “If I start doing this thing and it’s bad, like it seems like the geese are getting hurt or I’m not comfortable with it then, man — it’s over. I shut it down and I just have Christmas geese to sell. On the other hand, if I feel good about the process and it works, then I have Christmas geese and foie gras to sell.”
  • Paula Marshall, CEO of Bama Companies, during the keynote speech at the Northwest Food Processors Expo, says that workers who are treated fairly and encouraged to have a sense of ownership in the business are more scrupulous about food safety.
  • The USDA announced a new round of Beginning Farmer and Rancher Development grants with a total amount of $18 M, 5% of which is earmarked for military veterans transitioning into aiculture.
  • Business Insider has some very cool info graphics from the USDA’s livestock census, which shows you where all the meats live.
  • Earlier in the week, Jason participated in a panel discussion at the annual Farm Bureau Federation convention on behalf of The Farmer Veteran Coalition. Farm Bureau covered the event in its publication. You can listen to a podcast of the event here.
  • Capital Press writes on a lawsuit presenting a constitutional challenge to the Idaho “ag gag” law.
  • While we are on the subject, four people were arrested in Utah for photographing a hog farm from a public road, but then charges were dropped according to Food Safety News.  The hog farm produced under contract for Smithfield.
  • Think Progress reports on Senator Chuck Schumer as he calls for more pressure to be put on food warehouses.
  • Medical News Today discusses a study that attempted to quantify the minimum amounts of common allergens that can trigger reactions:  “In the 10% of participants who were most sensitive to food allergens, the team found that between 1.6-10.1 mg of hazelnut, peanut and celery protein needed to be consumed to trigger an allergic reaction, while 27.3 mg of fish and 2.5 g of shrimp protein were required to produce a response.
  • Government officials in the US and EU can now agree on two things: one, Putin is a creepy menace, and two, raw milk is potentially dangerous.
  • The Wall Street Journal reports on the passing of “Toystory”, a champion Holstein bull and sire to an estimated 500,000. Ave atque vale, you prodigious inseminator.

Legal Assistance for Military Veterans in Farming

January 13, 2015

UnknownFarming and food production can involve a variety of complicated legal transactions. Professional advice is essential at innumerable points during a farmer’s career. The Farmer Veteran Coalition now has a resource for farmer-veterans who have questions about contracts, product liability, labeling law, trademarks, or any other issue they may face. In cooperation with our firm, The Farmer Veteran Coalition can now offer a range of free legal services to military veterans who have previously registered with the Coalition.

Jason is a former Judge Advocate and veteran of the United States Marine Corps, as well as general counsel to the Coalition. This law firm is committed to the successful transition of military veterans into the agriculture industry, and we are very proud to support the superb work of the Farmer Veteran Coalition.

If you are a military veteran with legal questions about your farm business, you can contact info@farmvetco.org, or you can contact Foscolo & Handel PLLC directly at (888) 908 – 4959 or at info@foodlawfirm.com.

The Coalition supports the efforts of farmer-veterans across the country. If you are a fellow attorney willing to provide pro bono services to veterans in your jurisdiction, send an email to jason@foodlawfirm.com and introduce yourself! We can refer veterans to you as the need for local counsel arises.

Listeria outbreak linked to apples serves as reminder of the liabilities food businesses can face

January 12, 2015

by Lauren Handel

The recent outbreak of Listeria monocytogenes linked to commercially-produced caramel apples, has been traced to the apple distributor, Bidart Brothers of Bakersfield, California. As of January 9, 2015, the outbreak has caused 32 people to become infected in 11 states and contributed to three deaths. Bidart Brothers and three manufacturers of caramel-covered apples have issued recalls.

imgres-3Events like this remind us that food — even a product as seemingly innocuous as an apple — can be dangerous. For that reason, it is critically important that growers, manufacturers and other sellers of food products employ rigorous food safety practices to try to prevent hazards and plan ahead to be able to effectively recall products in the event that something goes wrong.

It is also important to understand that, no matter how careful a food manufacturer or supplier may be, it can be held strictly liable for all damages caused by contaminated food. Strict product liability means liability without regard to fault. In other words, an injured party may recover without having to prove negligence or intentional wrongdoing. The only way for a business to protect itself from such liability is to have insurance and contracts that appropriately put the responsibility for losses on the party that caused the harm. Food manufacturers and sellers, therefore, should make sure that their business liability insurance includes adequate product liability coverage and that their agreements with suppliers and customers include enforceable indemnification and insurance provisions.

What We Are Reading This Week

January 8, 2015


  • NewsboyIt’s a busy week for food law in the courts. A federal judge heard arguments in the lawsuit challenging Vermont’s GMO labeling law. And a judge in California overturned that state’s ban on foie gras.
  •  National Law Review has a summary of the FDA’s four Proposed Supplemental Rules that revise the agency’s prior proposed rules that implement the Food Safety and Modernization Act (FSMA). The supplemental rules were proposed in September, but an article like this is always timely.
  • Baylen Linnekin’s latest Reason article on the 2014 year-end review of important food law and policy issues.
  • Food Safety News FDA Warning Letter Roundup, with a couple of fish businesses leading the pack.
  • The New York Times had an article last week about loopholes in the regulation of GMOs.
  • The Atlantic’s article on the decriminalization of marijuana and the resulting conflicts between federal and state law.
  • A majority of American’s want more restaurant menu labeling.
  • Craft brewers are running out of trademark-able names for their beers.
  • Texas company recalls 35,000 pounds of Australian lamb because it was not presented to USDA FSIS for inspection at the port of entry.
  • Food producer voluntarily recalls chili mix because the label did not disclose an allergenic ingredient. The allergen was inadvertently included in the product because an ingredient supplier did not disclose the use of a peanut protein in its spice mix. It’s indemnification time.
  • Via the New York Times, ambitious start-ups are filling gaps in the local food economy for functions like logistics, web brokers, and food hubs.
  • Oregon is beginning to draft its hemp farming regulations.
  • A lengthy one for the weekend, a story of a San Joaquin Valley farm that is running out of water, via the California Sunday Magazine.
  • A re-reading of Food Law & Policy: The Fertile Field’s Origins and First Decade because it’s awesome.

Food Law on the Road

January 6, 2015

Wrath GrapesLauren, obviously vying for the Northeast Organic Farming MVP award for 2015, will be speaking at NOFA Mass on January 10, NOFA New Jersey January 24, and NOFA New Hampshire on January 31.

Jason is headed to the American Farm Bureau Federation Annual Convention in San Diego, California from January 11 – 13 to participate in a panel discussion as General Counsel to the Farmer Veteran Coalition.

Standards for Confining Farm Animals Initiative

January 5, 2015

tlp799273Officially named the Standards for Confining Farm Animals initiative, California’s Prop 2 has kicked off in January 2015. The initiative is the result of a November 2008 referendum with 63% of the votes in favor and 37% against. As of January 1, 2015 a chapter has been added to Division 20 of the California Health and Safety Code to prohibit the confinement of certain farm animals in a manner that does not allow them to turn around freely, lie down, stand up, and fully extend their limbs. The measure deals with three types of confinement: veal crates, battery cages, and sow gestation crates.

Nicole Civita, of Counsel to Foscolo & Handel PLLC

December 1, 2014


-by Nicole Civita

Upon their arrival in the United States, my great-grandparents began farming a piece of land in what is now New York City’s borough of Queens. Over the course of my grandfather’s life, American agriculture – and the way we relate to food – changed dramatically. As a child, he snuck eggs from the chicken coop and ate them immediately, unwashed and raw. He chased his escaped hogs down Metropolitan Avenue. He woke before the sun to tend a bevy of vegetable crops and fruit trees. As an adult, he continued to cultivate a small patch of land in our backyard, growing the most succulent tomatoes and plentiful pole beans I’ve ever encountered. In his final years, when his bones were too creaky for gardening, he grumbled loudly and often about the endless acres of soybeans surrounding his retirement village: “What’s all this for? And how are we supposed to feed ourselves?”

As a food lawyer, I ask those same questions – loudly and often. I consider it my calling to work on behalf of the intrepid individuals who are trying to change the face of modern farming, fix food, and nourish the next generations.

I am fortunate to be on the faculty of the LL.M. Program in Agricultural and Food Law at the University of Arkansas School of Law, where I get to track the latest developments in food law and policy, analyze how the law shapes our food system, and push for a more equitable, just, and sustainable food future.  As the Director of the University of Arkansas’s newly formed Food Resiliency Initiative, I facilitate interdisciplinary analysis of food system challenges to assure that healthy, adequate food is available and accessible to all – and that farmers and food producers can do well by doing good. I also work with experts in diverse fields to propose full-scope, actionable policy solutions that support responsible, resilient, and just agrifood systems – those that are able to withstand both short term disruptions like market fluctuations and acute natural disasters, as well as long term challenges like climate change, population growth, biodiversity loss, and chronic disease. My work puts me right at the intersections between food and public health, conservation, disaster-preparedness, business and economics, land tenure, fair labor standards, community development and planning, sovereignty, and social justice.  It’s a gratifying place to work.

Today, I am excited to announce that I will be putting my food systems expertise into practice. By working of counsel with Foscolo & Handel PLLC, I look forward to providing concrete and strategic support to stakeholders throughout the food chain. I am eager to help my clients understand the network of legal authorities that frame their farming operations and food businesses. I offer a deep understanding of the individual and systemic challenges that farmers and food businesses face and aim to help my clients explore innovative, efficient solutions.

I couldn’t ask for better colleagues in this effort. Jason, Lauren, and Michele bring a dynamic balance of creativity and exactitude to the practice of law. I am grateful for the opportunity to collaborate with them and contribute to their work, which is both grounded and ground-breaking. Together, we can help you navigate the legal requirements and minimize the risks inherent in the important and delicious work of putting food on the table.

For legal services, reach me at: nicole@foodlawfirm.com / 917-572-8073

For information about the Food Recovery Project, Food Resiliency Initiative, or my academic work: nmcivita@uark.edu / 479-575-2456.

Road Trip Roundup: Farmer Veteran Coalition Events

November 21, 2014

I was in Normal, Illinois on November 13, 2014, speaking at the Local and Regional Food Summit. The event was sponsored by the Illinois Farm Bureau, the Illinois Department of Agriculture, and Heartland Community College.

I was there to announce the launch of a partnership between the Illinois Department of Agriculture and the Homegrown by Heroes marketing campaign. Homegrown by Heroes is a trademark that can be affixed to agricultural products grown by farmers who are veterans of the United States Armed Forces. The program is managed by the Farmer Veteran Coalition (FVC) of Davis, California.

Illinois became the very first state in the country to partner with FVC to help promote the mark through its state department of agriculture. Effective immediately, farmer veterans growing within the state of Illinois will qualify to use the Homegrown by Heroes logo in conjunction with the Illinois Product logo. This dual certification will give Illinois retail consumers two compelling reasons to purchase a farm product bearing the mark – it’s local and its veteran-grown.

Special thanks to Cynthia Haskins of Illinois Farm Bureau for the amazing effort to get FVC and Illinois Department of Agriculture together for this marketing program.

This firm created the legal framework for the Homegrown by Heroes program and the licensing required to manage it. I gave the presentation on behalf of the Farmer Veteran Coalition’s Michael O’Gorman, who could not attend due to his presence at FVC’s National Stakeholders Conference in Des Moines, Iowa.


Said Stakeholders Conference was my next destination after Illinois. With the help of Drake University Law School, who hosted the event, FVC brought together various groups from across the country working within the farmer-veteran movement. I was there in part to present the preliminary plans to create statewide chapters of the Farmer Veteran Coalition throughout the United States and its territories.

As a veteran, I get a particular satisfaction out of my involvement with FVC. I get to meet amazing people like Calvin Riggleman of Big Riggs Farm, Mickey Clayton of Dot Ranch, Chris Holman of Nami Moon Farms, and so many more. When I hear how hard these vets work, how much they love what they do, and the extent to which they experience farming as rehabilitative, I cannot help but be inspired by them.

Finally, I passed through Chicago-O’Hare Airport 3 times in 4 days, and each time I absorbed some free Vitamin D by the lights of the indoor edible garden by Gate G.

FDA Changes Produce Safety Regulations to Exempt More Small Farms

November 19, 2014

by Lauren Handel

In late September 2014, FDA issued revised versions of its proposed produce safety regulations under the Food Safety Modernization Act (FSMA). Of particular relevance to farms with small produce operations, the revisions significantly change which farms would be covered by or exempted from the rules.

As initially proposed, the Produce Safety Rule would have exempted any farm with total food sales of not more than $25,000 on average, per year during the previous three years. Thus, a farm with very small fruit and vegetable sales of $25,000 or less annually would not have qualified for the exemption if its combined annual sales of produce and all other foods (such as grains, dairy, meat or processed foods) exceeded $25,000. In response to criticisms that the rule would have served as a disincentive for diversification of farming operations, FDA has revised the exemption criteria so that only produce sales are counted toward the $25,000 limit.

Similarly, FDA has proposed to count only produce sales, rather than sales of all food, in determining whether a farm is a “small business” (defined as having average annual produce sales not exceeding $500,000) or “very small business” (defined as having average annual produce sales not exceeding $250,000). Under FDA’s proposal, small businesses and very small businesses will have three years and four years, respectively, to comply with the final Produce Safety Rule after it takes effect, whereas all other covered farms will have only two years to comply.

While these revisions make good sense, they do not go as far as some commenters had hoped in that all produce sales, and not just sales of “covered produce,” will be counted in the dollar limits. A covered farm is subject to the Produce Safety Rule’s requirements only with respect to its “covered produce” operations. Covered produce is, generally, fruits and vegetables that are likely to be consumed raw and that will not undergo a kill-step in processing. Thus, for example, a farm that sells less than $25,000 per year of leafy greens and tomatoes (covered produce) will have to comply with the Produce Safety Rule with respect to the greens and tomatoes if it also sells enough potatoes (not covered produce) to bring its total annual produce sales above $25,000.

FDA’s revisions also do not satisfy critics who argued that the eligibility criteria for the qualified exemption (known to many as the Tester-Hagan Amendment) should, likewise, be based on sales of produce or covered produce, rather than sales of all food. Under the Tester-Hagan Amendment, a farm is eligible for a conditional exemption from most requirements of the Produce Safety Rule if its total food sales are less than $500,000 on average, per year, and more than half of its food sales are directly to consumers and/or to restaurants or food retailers located in the same state or not more than 275 miles from the farm. While it would be logical to base eligibility for this qualified exemption on produce sales, rather than sales of all food, FDA cannot make that change unless Congress amends the FSMA statute.

FDA’s revisions also make significant changes to the Produce Safety Rule’s requirements for water quality testing, the use of raw manure soil amendments, and the process for withdrawing and reinstating a farm’s qualified exemption. As these rules will have an enormous impact on covered farms, it is critical that farmers understand what the regulations will require and participate in the rulemaking process. I encourage farmers to read the proposed Produce Safety Rule, as well as the revisions. Interested parties may submit comments on the revisions to FDA by December 15, 2014.