Next week I’ll be attending the Organic Trade Association Policy Conference in Washington, DC on April 25 and 26. Many thanks to Michael O’Goreman of the Farmer Veteran Coalition for allowing me to represent them at the Conference. Also thanks to Angela Jagiello of the Organic Trade Association for sponsoring the trip. I’m pretty pumped for the show - U.S. Representative Chellie Pingree, U.S. Representative Reid Ribble, Kathleen Merrigan, USDA Deputy Secretary, Ken Cook, President and Co-Founder of Environmental Working Group, and many more will be speaking at the Conference.
Also coming up on the LLC calendar is the Brooklyn Food Conference on May 12, where we are leading a panel on the importance of Food Law to new food businesses with the great chef and Mangalitsa grower, Michael Clampffer of Mosefund Mangalitsa.
Earlier in the week, Food Safety News ran a piece by the great Bill Marler on why we are seeing so many raw milk outbreaks lately. He was immediately referring to the Oregon outbreak vectored to Foundation Farms, and a similar outbreak in several counties in Missouri. I’ve got my Google News Alerts set to sniff out “Raw Milk” articles and I too have noticed that my daily queue is always full. A good 70% of the stories are illness-related.
Whether you are a raw milk proponent or a public health scold, Marler poses an excellent question.
Product popularity has to play a part in the increase we are seeing. For better of for worse, the market for raw milk has become the beneficiary of a die-hard group of consumers and their zeal for the product is drawing in new producers. More producers, more milk, more outbreaks – simple arithmetic.
Yet it’s still pretty shocking that raw milk producers are not doing more to turn out safer product. Besides pasteurization, vastly improved handling practices should be able to at least slow the rates of illness we are seeing.
The reason we are seeing more outbreaks also stems from ignorance of the law. Even in states where selling raw milk is legal, dairies still have to face strict liability in civil court for the harm caused by their products. If farmers had a better understanding of the almost-absolute duty the law imposes on them to make food that is safe to eat, they would either leave the raw milk business altogether or implement the technologies and practices that would lower the overall incidence of infection. The up-tick in outbreaks tells us neither is being done, and that is a shame for the farmers who may have to part with land to compensate the sick.
Cari Rincker and I will be covering some of these topics in our upcoming CLE, “Counseling the Local Food Movement“. Check us out on May 10, especially if you are an attorney who would like to begin advising some raw milk producers on the comprehensive issues they’ll have to contend with when they get into the business.
This food law thing is catching on – we have a CLE now. Through the sheer dogged determination of my colleague Cari Rincker, attorneys everywhere now have a legal education resource that will enable them to provide specialized counsel to small-scale and direct market farmers. Cari put together a very well-rounded program for the American Bar Association, covering the Food Safety Modernization Act, cottage food laws, land use in urban agriculture, food labeling guidance, and a whole bunch more. I’ll be on the panel to discuss raw milk.
If you have any desire to represent farm clients or food producers, this course is an excellent way to establish your toolkit. The live CLE will be held on Thurday, May 10, from 2:00 to 4:00 PM EST. You can view the flyer here if you would like more information on how to sign up.
I perceive that there are two reasons for the increasing media attention to fraud in the olive oil industry:
1. Food provenance is increasingly important to consumers. (See “Pink Slime”)
2. Domestic production is ratcheting-up to become a dominant force in thew world olive oil market.
Also in the news on Friday, Pompeian Olive Oil became the first olive oil importer to use the new USDA Quality Monitoring Service logo on its extra virgin olive oil products. Much like the “USDA Organic” seal, the new rules will create a special mark that may be applied to qualified olive oil products.
This has been the second time in recent history that the USDA has tweaked the standards for olive oil in an attempt to prevent fraud. In October of 2010, the USDA introduced new standards for classifying grades of olive oils. If I can overcome my reflexive disdain for new regulation, stricter quality parameters are a good thing. For the US olive oil industry to compete with cheaper imports from say, North Africa, they will have to do so on the basis of quality, purity, and freshness. Federal standards will allow domestic producers to define the “other”.
My one criticism is purely practical. It will be tough to build a brand for the new certification mark as an indicator of quality if no one is marketing the symbol itself. So far no coordinated marketing campaign has been launched to tell us how the symbol represents useful information to the consumer. It took me a while just to Google around to figure out what this mark even looks like.
There is no point to using symbols to sell product unless someone takes the time and money to explain its utility to the consumer, which is how brands are made. The USDA won’t spill the dough to market this seal of approval. If an olive oil business went through the expense, they would just create a hold-out problem for themselves. Though I hope to see this symbol tell consumers the difference between the real deal and the biodiesel, I’m skeptical.
Grist.org has now picked up the story of the Michigan Department of Natural Resources ban on hogs displaying feral characteristics. I covered the juicy bitslast week, but I left out the conspiratorial parts concerning the role played by the Michigan Pork Producers Association (PPA) in implementing the order. Via Grist:
In a recent post on Take Part, Clare Leschin-Hoar spoke with Sam Hines, executive vice president of the Michigan Pork Producers Association, who fully admits that his organization, and the massive industry they represent, is involved in the order.
Hines says they’ve trapped a number of feral pigs and have tested them for diseases, including pseudorabies.
“It’s not something that humans would get, but it’s devastating to some species of livestock. If that virus gets disseminated to the domestic or commercial swine herd in this state, we would become quarantined. It would be economically devastating to our producers,” he said.
But so far, he admits, the transfer of pseudorabies from feral pigs to domesticated hogs has not occurred.
This is the website for the Michigan Pork Producers Association. You can click through, but in order to get my point all you need to see is the banner picture from their website:
This is an aerial shot of a CAFO, over-layed on top of a picture of a packed group of landrace hogs, standing on a concrete floor behind the bars of a cage. This picture is entirely antithetical to the idea of heritage breed cultivation, and it should sum up the perspective of the organization which helped to draft the Invasive Species Order.
I am not one to entertain paranoid conspiracy theories, so I do not think the PPA sees the sale of a few heritage-bred pigs as a mortal threat to the business interests of its constituents. The commodity culture does not yet feel threatened by the minuscule market share of dispersed and disorganized heritage-breed producers. Let’s play nice and concede that their support of the Order stems from some sincere desire to protect their business from cross-over diseases which infect wild hogs.
But after looking at this picture, there can be no doubt why the DNR’s order was written with such stunning, obnoxious broadness. The Michigan PPA is proud to show pictures of CAFOs and pigs on concrete behind bars. The organization represents a commodity culture with a tin-ear for what is important to a certain type of consumer, and they will unabashedly, proudly even, put their deplorable agricultural ethos on display right on the front page. To members of the PPA, heritage breeders as weirdo dilettantes, a novelty act, and they just don’t understand the kinds of markets the heritage breeders are trying to develop. They look upon heritage producers with ridicule, if they even look at all.
You do not need to invent a conspiracy theory to resent arrogance like this. For the time being, the commodity culture is the one with a seat at the table, calling the shots and drafting the regulations. With a crew like the PPA drafting the DNR order, is it any wonder why it failed so miserably to account for the business needs of small scale farmers?
Under current federal food labeling laws, food processors can feed people ground-up beetles without having to tell them about it. Actually, they are required to disclose it on their labels, but they have to call it something that sounds innocuous.
You’ll often see “carmine” or “cochineal” on an ingredient panel, which are interchangeable names for a purple-looking dye made by processing the guts of Dactylopius coccus, a scaled cactus-parasite native to Mexico and South America. As reported by NPR last Friday, some conscientious Starbucks customers found out it was being added into their overpriced, fair trade fraps and are now understandably disgustedconcerned.
Cracked.com did a substantially more revolting bit about cochineal in the food system four years ago, Number 3 on this list:
“Carmine is made, literally, from ground-up cochineal insects, which is just a more harrowing way of saying mashed red beetles. Because you’re dying to know more, the insects are killed by exposure to heat or immersion in hot water and then dried. Because the abdomen region that houses the fertilized eggs contains the most carmine, it is separated from the rest of the body, ground into a powder and cooked at high temperatures to extract the maximum amount of color.
Then, it’s added to that yogurt you ate this morning while lording your health consciousness over the guy in the cubicle next to you who had an Egg McMuffin.”
According to the USDA, using ground beetle-abdomen is perfectly legit, so long as the extracted beetle-juice is pasteurized. 21 CFR 73.100. Great, so eating it won’t kill us, but… it’s still beetles.
Federal regulation mandates that food manufacturers label this additive as either “cochineal” or “carmine” on the product ingredient panel. These are the only acceptable words that processors are allowed to use. In other words, if it goes into your product, you must use the designer name of the coloring instead of something accurate but unpalatable like ‘beetle-dust’. It is almost as if federal regulations require food processors to be disingenuous. Thanks to this sleight of hand, unless you were an entomologist, you’d probably breeze right over the ingredient label and never know you’re about to eat beetles. If we had a truly transparent food system, our own laws would force processors to call it “dried and pulverized beetle coloring” instead of some soft trade name. But of course that would make us think twice about eating that blueberry yogurt.
Food law will mandate sanitation (by mandating pasteurization) without ever addressing the issue of whether we should eat some things in the first place.
I can’t believe it took me three days to change the title of this series to “Your Honor, My Client is a Pig.” I’m slipping.
Yesterday we talked about how the Michigan Department of Natural Resources Invasive Species Order will disproportionately affect the state’s small-scale farmers. Today we’ll talk a bit about how the Mangalitsa breeders responded to the Order and the lesson their example has for other growers.
Last spring, Mosefund Farm and I formed the American Mangalitsa Breeders Association. The typical purpose of breeders associations is to organize the genetic information farmers needs to direct the reproductive development of their animals. An association performs this function by recording the economically valuable traits of its animals in a great big herd book. They then use this database to selectively breed-up the beneficial traits into the population. Ancient technology.
Mosefund wanted to do something more ambitious. In addition to the genetic management role, we designed the Association to be a vehicle to help members jointly manage the reputation of the breed. We also wanted it to be able to intercede on their behalf whenever regulation or market forces jeopardized their interests. When one of our members alerted us to the DNR’s Order, we were lucky enough to have the perfect organization in place to respond. You can read our letter to the Michigan DNR right here.
You can also read the courteous but confusing response we received from Mr. Randy Stokes, Commissioner. Here’s the particular part that left me scratching my head:
“It is the DNR’s understanding that purebred mangalitsa swine do not exhibit characteristics listed in the declaratory ruling, other than potentially striped piglets. The Invasive Species Order would not prohibit purebred Mangalitsa swine based solely on this characteristic”
The response further blurs the rational relationship between the goal of the order and the way the Department seeks to implement it. The contradiction in the first sentence of the block quote is evidence of selective enforcement of the Order. Mr. Stokes admits Mangalitsas exhibit certain “feral” traits, but immediately explains that this single attribute will not suffice to trigger the prohibition. As we pointed out yesterday, the Declaratory Ruling did not pick a specific number of traits which would trigger the prohibition. According to Mr. Stokes, the presence of the single trait, that of piglet stripes, would not condemn a hog to destruction. This certainly seems like an arbitrary and capricious application of the Department’s enforcement power.
Legal criticism aside, however, we did achieve a favorable result for our delicious pigs without expensive courtroom pyrotechnics. Mr. Stokes has now publicly stated he does not intend the order to apply to the purebred Mangalitsas raised by our Michigan members. I would prefer to see the language of the Order amended to clarify the discrepancies I cited. His words, no matter how gracious, holds far less regulatory weight than a properly modified order. If the members agree to press on this issue, we certainly can.
I would also like to see other heritage breeders get the predictable regulatory environment they need in order to do business.
Mangalitsa growers had the forethought to create an organization that could represent them in a circumstance like this. For the farmers without an underlying organization to enforce their rights, the practical and financial dilemma for them as a class still remains. They must expend time and resources as individuals to reassert their property rights. The series this week is really about how they can fight these fights effectively and economically.
Farmers have a whole array of legal resources at their disposal they can use to scale-up their power. There is of course the cooperative, which we have posted about numerous times. The Lanham Act, where our modern trademark law comes from, has a class of trademarks that farmers can use to collectively market agricultural goods. Neither of these examples, just two among many, are revolutionary legal concepts. They are proven organizational tools that have been used for ages by Big Food to protect their interests, conduct their business, and maintain their market dominance. Small-scale farmers have equal access to them all, but they just aren’t using them yet.
In the case of the Mangalitsa growers, we used a typical non-profit structure to achieve the effective resolution in Michigan. The resources for the response were equitably borne by our entire membership. The Association multiplied the force of our complaint. None of this was exotic. None of it was expensive. We were just prepared for this kind of thing, and that made it an easy day.
The nail that stands up gets hammered down. If you grow or process food, it is time to face the realization that the laws of the industry were not written with your diminished scale in mind. Big Food treats regulatory compliance as a cost of doing business and it all factors into the retail price of their products. If small scale producers are going to operate within the food system, they will need to adopt the same view. To succeed in our regulatory environment, small-scale producers need to amplify. A cheap and highly effective way to pump it up is to aggregate, organize, and cooperate. And never turn down an opportunity to stick it to the man.
In this part of the series, we take a close look at the evolution of the Michigan regulation which now threatens the production of heritage-breed hogs within the state.
Feral hogs have become a serious problem in some parts of the country. They destroy so many crops in Texas that it is now legal for citizens to shoot them on sight. With high-capacity magazines. From helicopters. Hey, at this point it’s not about the sportsmanship. It is about eradicating a legitimately destructive blight that humans have irresponsibly loosed upon the landscape.
To avert the helicopter gunship scenario, Michigan passed the Invasive Species Order in October of 2011 to prevent the proliferation of wild hogs within its borders. The Order prohibits the possession of Sus scrofa, or in other words “wild boar, wild hog, wild swine, feral pig, feral hog, feral swine, Old world swine, razorback, eurasian wild boar, and Russian wild boar”.
The members of the Michigan Animal Farmers Association asked the Department to clarify the Order by requesting to know precisely how the Department would identify prohibited animals. In its response the DNR made it clear they would make a determination of ferality based on the phenotypic characteristics of each animal. This is precisely where the rule metastasized to adversely affect the interests of the state’s heritage breed farmers. You can read the Order as well as the subsequent Declaratory Ruling in its entirety here, but let me sum it up in pertinent part:
“In its enforcement of the [Invasive Species Order], as amended, the Michigan Department of Natural Resources will use phenotype to identify Sus scrofa and distinguish it from other species.”
The order then went on to list 9 characteristics the Department would use to identify prohibited swine. These characteristics include;
lightened bristle-tip coloration;
dark point coloration on the extremities;
coat colorations such as solid black, solid red/brown, black and white spotted, black and red/brown spotted;
light colored underfur;
a striped juvenile coat pattern;
unspecified morphology skeletal appearance;
straight tails;
erect ear structure;
and finally, the catchall – “other characteristics that are identified by the scientific community” that are indicators of ferality.
The jitters coming from the heritage breeders within the state are therefore entirely justifiable. Every heritage breed that is commercially raised exhibits one or more of these “feral” traits. Several of the prohibited characteristics are present in the purebred Mangalitsa for example, porcine royalty once served at the feasts of Habsburg princes.
How would this regulation apply to the Ossabaw Island hog for example? It exhibits plenty of phenotypically “feral” characteristics even though it is produced commercially and is infamously coveted. The Ossabaw was intentionally dumped by Spanish settlers on Ossabaw Island off of the coast of Georgia in the 16th century, where it reproduced for centuries without human intervention. It became re-domesticated only very recently by some educational institutions and a few enterprising farmers. It is now a commercially viable breed once again, much sought after by the Big Chefs.
The plain meaning of the Order and its subsequent clarification would therefore allow the Department to morph a hog of the noblest, pedigreed heritage into a nuisance. Such animals could be destroyed by government decree based on the presence of an indefinite number of physical characteristics.
It thus appears the Department composed the list of feral characteristics with complete disregard for the qualities of heritage breeds of livestock, phenotypic or otherwise. The Order prohibits the precise qualities that make them such important parts of a diversifying food system.
If one were a cynic, it might appear that the Order and its progeny display a deliberate institutional bias favoring the boring, ubiquitous landrace hogs which compose our Smithfield ham and our Oscar Mayer bacon. At the very least, it demonstrates a bureaucratic arrogance towards Michigan’s innovative farmers that are using rare genetics to make a buck, distinguish themselves in the marketplace, and do something sustainable. Either way, small-scale farmers must now, as individuals, extricate themselves from the regulatory morass at a cost that must be born across their relatively microscopic herd sizes. Regulators who draft rulings like the DNR Order should either abandon their overt favoritism or consider the impact of their rules with the small-scale farmer in mind.
Mangalitsa growers are exceptionally well organized for a livestock breeding community, so they may not share the fate of other heritage breeds under the Order. Tomorrow, I’ll post about their unique response to the DNR Order and the versatility of their collective organization which helps them to share these types of expenses.
All this week I will be posting in-depth about the Michigan Department of Natural Resources (DNR) ban on certain hog species within the state. In case you have missed a beat or two, Michigan is trying to keep its wild hog population under control by issuing a series of broadly-worded restrictions on commercial producers of swine that exhibit an arbitrary set of visual characteristics. This being America, the Land of Big Ag, the regulations disproportionately burden small-scale and independent farmers, namely those looking to inject diversity in the market by producing and selling heritage breeds. As the latest attempt by a regulatory agency to restrict an alternative agricultural practice, this is pretty newsworthy stuff if you are into food freedom, small-scale agriculture, or good food.
We begin this week-long saga with a picture of this little troublemaker here:
This corpulent fellow is a Mangalitsa, a lard type hog imported from Europe and commercially grown by a handful of dedicated and conscientious domestic breeders. He’s different. He’s sustainably raised. He’s delicious, and he must not be subjected to clumsy regulation, for he can fight back.
Mosefund Farm in Branchville, New Jersesy is now the largest breeder of Mangalitsa in the United States. They are also the ambitious visionaries behind the formation of the American Mangalitsa Breeders Association (AMBA), the non-profit corporation which represents the farmers that grow Mangalitsa. Mosefund and I created the Association to help its members collectively market the breed and collectively bear regulatory burdens, both so that Mangalitsa breeders could better compete with other breeds as well as with commodity pork. Believe it or not, this is an unfortunate truth about farming in America. Small-scale farmers actually need organizational and logistical support to share compliance costs. Growing heritage breeds is particularly challenging. For example, even the smallest farms must comply with lengthy federal regulation of breed-specific marketing claims made on product labels. Dealing with regulations like this, which were written for gigantic industrial farms, necessitates cost sharing. We envisioned the Association as the perfect vehicle for economically providing compliance advice or contesting legislation that can affect the breed.
Fortunately for the breeders of Mangalitsa, they had this organization in place when the DNR passed its rules. The first official act of the Association was to submit a letter of complaint to the Michigan DNR concerning the affect that its ham-handed regulation (see what I did there?) would have on Mangalitsa growers within the state.
Subsequent posts throughout the week will discuss the Michigan regulations themselves, as well as the moves made by the Association to protect the interests of its membership. Stay tuned…
In the past, I have voiced cautious optimism for “cottage food” laws. For one thing, most of these laws are so narrowly tailored they negate the economic advantages of in-home processing altogether. Lauren Medoff, friend, food lawyer, now a proud resident of Texas, elucidates that point in this awesome post on her state’s regulatory implementation of its cottage food law. Thesis alert! State regulators are narrowly construing the law with even stricter regulations:
Less than a year ago, a group of home cooks lobbied the Texas State Legislature to pass a law with the goal of removing homemade goods from the black market. Those cooks rejoiced when the State Senate passed SB. No. 81, also known as, the Texas Cottage Food Law. Unfortunately, the law was written too broadly and gave unlimited power to state regulators to write its implementing rules. Now, small businesses are dealing with the ill-effects of poor drafting and can only hope a lighter version of the rules appears before they are finalized indefinitely.
The intent of the Texas Cottage Food Law was to lift burdensome regulations requiring home cooks to go to through overly expensive lengths i.e. obtaining a license, just to sell homemade foods to consumers. Unfortunately, the proposed rules set to implement the law are not only difficult to comply with, but also impose unreasonable regulations that big players in the food industry do not face. Thus, the rules act as sort of an unfair trade-off: we’ll allow you to sell your goods without license or inspection, but we’re going to make it exceptionally hard for you to make a profit.
A few highlights of Texas Administrative Code Rule 229.661 include: a limit of $50,000 on annual gross income, the requirement that sales must not occur over the internet, restricting the potential success of the business, and strict labeling requirements such as a list of ingredients in descending order of predominance by net weight, including a declaration of artificial color or flavor and chemical preservatives, an accurate declaration of the net quantity of contents including metric measurements and allergen labeling that complies with FDA regulations, a statement that the food was not inspected, suggesting a lack of fitness for consumption, and the usage of permanent ink, ruling out many home printers. The regulations are so riddled with technicalities that many home business owners might also incur legal fees just to ensure compliance and avoid harsh fines or future inspection by the governement.
These rules clearly undermine the intent of the Texas legislature and will be hard for home cooks like Michele Rippey, owner of The Sugared Whisk Bakery in Rockwall, Texas, to comply with. In addition, conventional bakeries do not have to comply with the expensive labeling requirements. When asked about her feelings on the proposed rules, Michele said, “I cannot afford to pay rent on a storefront at this time and to have only had the option of starting a bigger business would’ve impacted me enough to not start the business at all. Getting these types of labels made is very expensive. It is just not fair to impose the same regulations on my in-home business as large scale businesses or require a label stating that my goods were not inspected by DSHS, as if it’s not fit for eating. It’s far too often that we see the products that are inspected by the government causing major outbreaks of food-born illness.”
Even a co-sponsor of the bill, Eddie Rodriguez, is speaking out against the harsh rules stating on his website:
“It is clear to me that these proposed rules subvert the intent of the legislation we worked so hard to pass. We were pretty clear in trying to make it easier for small business to thrive and some of these rules proposed by the state will do just the opposite. I have spoken with the Department of State Health Services and let them know I take issue with their rules and will keep an eye on the process moving forward.”
It is important that you protect your business and be in compliance with the provisions of the Texas Cotttage Food Law. Read and understand Rule 229.661 and contact your local attorney if you still have questions. Also, be aware that being in compliance with this law does not protect your business from consumer lawsuits. Food safety is governed by strict liability and is always a risk in any food sale business.
Although the comment period ended on Feb. 26, it couldn’t hurt to still write a letter voicing your concerns! Interested parties wishing to comment on these proposed rules should write to: Cheryl Wilson, Food Establishments Group, Policy, Standards and Quality Assurance Unit, Division of Regulatory Services, Environmental and Consumer Safety Section, Department of State Health Services, Mail Code 1987, P. O. Box 149347, Austin, Texas 78714-9347, (512) 834-6770, extension 2053, or by email to cheryl.wilson@dshs.state.tx.us.
(We’d like to thank Michele Rippey for her time and her insight. If you would like to chat with her about her delicious, professionally baked nom-noms, you can reach her by email at Mrippey@vt.edu)
