Local Food Legislation

By Pete Kennedy, Esq.

There are many ways state legislation can strengthen your local food system. Four primary areas to work in to pass bills are cottage foods, raw dairy products, poultry and eggs, and meat. Legislation deregulating locally produced food will keep more food dollars in your state and community, improve traceability for food safety, and make your state less reliant on industrial food.

What follows is a summary of the laws in each of the four categories as well as other areas that can help build local food systems along with legislation worth pursuing.

Cottage Foods

Cottage foods are homemade foods not requiring time and temperature control for safety (non-TCS) that producers typically make and sell direct to consumers in intrastate commerce with little or no regulation. The 2017 Food and Drug Administration (FDA) Food Code defines a TCS food as “a food that requires time/temperature control for safety to limit pathogenic microorganism growth or toxin formation”—in other words, a food that needs refrigeration.

Current Status

All 50 states currently have cottage food laws, but many states don’t allow the sale of all non-TCS foods, often limiting cottage food producers to mainly selling items such as baked goods, jams, and jellies. A number of states have a cap on cottage food producers’ annual sales (the highest caps are in Florida and Wyoming, with $250,000 being the limit in annual sales in both states). Some state laws also limit the venues at which producers can sell to consumers. Most cottage food laws have no inspection or licensing requirement, but there is usually a labeling requirement that includes a disclosure statement that the food was not produced in a state-inspected kitchen or facility.

The food safety record for cottage foods is excellent; reports of foodborne illness outbreaks being attributed to producers operating under cottage food laws are extremely rare.

Legislative Goals

Cottage food bills should preempt any local regulation from counties and municipalities. The best cottage food laws allow the sale of all non-TCS foods, including fermented foods such as sauerkraut and kombucha; these foods are categorized as non-TCS if their pH and water activity are below a certain level. The best laws also have no cap on sales, not limiting the success of home kitchens. Good laws should also recognize that direct-to-consumer sales should be expanded to as many venues as possible.

Recently, a couple of states have expanded cottage food sales to include sales of homemade non-TCS foods by third parties such as retail stores and grocery stores. States have also expanded cottage food sales to include interstate commerce as long as the food is in compliance with applicable federal law.

Since 2015, states such as Wyoming, Utah, North Dakota, Montana, and Maine have passed laws commonly known as “food freedom acts” that allow the unregulated sale of foods subject to time and temperature control. In Maine, it is not a state law but rather one only covering towns that have adopted a local food sovereignty ordinance. Wyoming [Wyo. Stat. 11-49-101-104] and Montana [MCA 50-49-201-203] have included the sale of any raw dairy products or any food with a raw dairy product as an ingredient. The Federal Meat Inspection Act applies to intrastate commerce and prohibits the unregulated sale of any meat or meat food product. However, Utah has a law allowing the sale of meat food products by licensed home kitchens (called “microenterprise home kitchens” in the law); the statutory requirements for a home kitchen are easier to meet than the requirements for a commercial kitchen [UCA 26-15c-101 through 26-15c-105].

The Weston A. Price Foundation (https://westonaprice.org), Farm-to-Consumer Legal Defense Fund (https://farm2consumer.org), and the Institute for Justice (https://ij.org) can all serve as resources for those interested in expanding their cottage food laws..

Raw Dairy Products

Raw dairy products, other than cheese aged 60 days, are the only foods banned in interstate commerce. Because states typically adopt federal laws on most foods in interstate commerce, the ban actually means they have no federal regulations to adopt on raw milk and raw milk products. As a result, there are a hodgepodge of state laws on raw dairy production and distribution.

Current Status

There are three basic ways a dairy farmer can earn revenue producing and distributing raw milk: selling raw milk for human consumption; selling raw milk for pet consumption; and distributing raw milk through a herdshare agreement (a contractual arrangement by which someone purchases an ownership interest in a dairy animal or a herd of dairy animals and is entitled through that ownership to a percentage of the milk production).

Forty-five states have legalized raw milk sales or distribution through at least one of these three avenues. The laws in the states that have legalized raw milk sales for human consumption run the gamut; some states allow only the on-farm sale of raw milk, whereas about a dozen states allow the sale of raw milk in retail stores. Some states don’t regulate the on-farm sale of raw milk; others require licensing and inspection. There are some state laws that limit the size of the herd, and there are also state laws that limit monthly production.

Around a quarter of the states allow the distribution of raw milk through herdshare agreements; these arrangements tend to take hold in states where the legislature is reluctant to legalize sales of raw milk to the general public, yet still wants to make the product available to consumers. The drawbacks of herdshare agreements are the paperwork requirements for farmers and consumers; also, many consumers only want to purchase raw milk, not own a part of a herd.

Nearly every state has a law allowing the sale of raw pet milk by a farmer who is licensed by or registered with the state department of agriculture. In practice, however, only a small number of states have actually licensed or registered farmers to sell raw pet milk. That looks to be changing, at least somewhat. In recent years, more states have approved farmers to sell raw pet milk, a trend that will likely continue.

As for other dairy products:

• The sale of cheese aged 60 days is legal in all 50 states.
• The sale or distribution of raw cream is legal in about half of the states.
• The sale or distribution of any other raw dairy product (including butter, yogurt, kefir, cheese aged less than 60 days, and ice cream) is legal in only a quarter of the states or less.

Value-added products are where the biggest profit margins lie. A raw dairy producer can double revenues by processing a gallon of milk into four quarts of yogurt. Moreover, a raw dairy product like butter has one of the better track records for safety of any food.

Legislative Goals

Even though most of the states have legalized raw milk sales and distribution, there is a need in many of those states to upgrade the law to increase consumer access. There are many ways to improve the current raw milk laws in most states as well as to legalize the sale or distribution in the five states that maintain a blanket prohibition. For example:

• If the law limits the number of cows raw milk producers can have or the number of gallons they can sell per month, introduce a bill to lift or raise the cap.
• If the state law allows the distribution of raw milk through herdshare agreements, introduce a bill to legalize the on-farm sale of raw milk.
• If the state law allows the on-farm sale of raw milk, introduce a bill legalizing delivery to the farm’s customers and the sale of raw milk at direct-to-consumer venues such as farmers markets.

For years, dairy trade groups like the International Dairy Foods Association have been vigilant in lobbying against legislation to legalize the sale of any raw dairy product, including the value-added raw dairy products that can be such a key component of a small diversified farm’s profitability. However, their opposition looks to have slowed down lately, and the number of states legalizing the sale or distribution of raw dairy products other than milk is gradually increasing.

The Weston A. Price Foundation (westonaprice.org) and the Farm-to-Consumer Legal Defense Fund (farmtoconsumer.org) can serve as resources for those interested in improving consumer access to raw milk and legalizing raw dairy products other than milk and cheese aged 60 days.

Poultry

Through the Poultry Products Inspection Act (PPIA), the United States Department of Agriculture (USDA) has jurisdiction over poultry slaughter and processing in intrastate commerce.

Current Status

About half of the states have their own poultry inspection programs; those states have federally-inspected facilities, state-inspected facilities, and custom facilities. Poultry slaughtered and processed at custom facilities cannot be sold—they can only go to the owners of the birds for consumption by either the owners, the owners’ non-paying guests, or the owners’ employees. States with their own poultry inspection programs must either adopt the federal laws governing poultry slaughter and processing or have their own laws that are “equal to” (i.e., at least as strict as) the federal requirements.

There are a number of exemptions to inspection in the federal regulations. “Inspection” in this context means that an inspector must be present when the slaughter and processing is taking place. Producers and facilities operating under the exemptions are subject to some regulation, but there are fewer requirements than for the facilities “under inspection.” All states, regardless of whether or not they have their own state meat inspection programs, have the option to adopt some or all of the federal poultry “exemptions from inspection.”

The most important exemption for small-scale poultry producers is the producer/grower exemption for the sale of on-farm processed poultry in intrastate commerce by the producer who raised, slaughtered, and processed the birds. A guidance document from USDA’s Food Safety and Inspection Service (FSIS) provides that farmers under this exemption can sell to consumers, restaurants, retail stores, hotels, and institutions such as schools, hospitals, and nursing homes. Producers under the exemption can also make value-added products (for example, broth or chicken pot pies). There are two tiers for this exemption: a 20,000-bird annual limit and a 1,000-bird limit. There is little or no regulatory oversight for producers selling less than 1,000 birds each year.

A second exemption that can help small-scale poultry farmers who sell out-of-state is the custom exemption. Under this exemption, producers can sell a live bird to the customer (or take a live bird the customer already owns) and slaughter and process the bird for a fee. Farmers and custom facilities can ship poultry in interstate commerce under this exemption.

There are five other exemptions from poultry inspection that federal law provides [see 9 CFR 381.10] including the retail exemption (an exemption enabling poultry farmers who do have access to slaughterhouses to take the carcass and value-add through further processing at a licensed facility such as a commercial kitchen). For poultry, a farmer can operate only under one exemption provided by federal law in a calendar year.

Legislative Goals

There are still at least a half dozen states that have not adopted the 20,000-bird producer/grower exemption. With a shortage of inspected facilities throughout the U.S. that slaughter and process poultry, all states should be allowing the on-farm processing of up to 20,000 birds.

Nor have all states adopted the custom exemption; it’s another option a small-scale poultry farmer should have.

In the states with their own poultry inspection programs, legislation adopting all the federal poultry exemptions (without adding additional requirements) is a good bill to run.

Eggs

Through the Egg Product Inspection Act, FDA and USDA have jurisdiction over intrastate commerce; FDA has regulatory authority over shell eggs, USDA over egg products.

Current Status

There is an exemption from nearly any FSIS or FDA inspection for farmers with flocks of less than 3,000 hens. Producers in this category have an excellent track record for safety.

A number of states have laws allowing the unregulated sale of shell eggs direct from producer to consumer; some states have a weekly limit on how many eggs a producer can sell, while others do not. Sales do not have to be limited to intrastate commerce. Utah allows the sale of eggs to restaurants by producers having less than 3,000 layers with minimal regulation; Virginia allows the sale of unregulated shell eggs to restaurants with only a recordkeeping requirement for the restaurants.

Legislative Goals

With a significant amount of the country’s commercial flocks being culled over the past year due to regulator claims regarding Highly Pathogenic Avian Influenza (HPAI), it’s important for the statehouses to further deregulate small-scale egg producers.

Meat

For sales to be legal, meat is the only food that requires an inspector to be present when slaughter and processing (production) is taking place. For the types of meat requiring inspection, which is meat from cattle, hogs, goats, and sheep—defined as amenable species under federal law—there is no equivalent of the producer/grower poultry exemption. However, an inspector is not required to be present when slaughter and processing take place for meat from non-amenable species such as domestically raised rabbit, bison, or deer.

Current Status

As with poultry, states can have their own meat inspection program. Twenty-nine states currently do; those states have federally-inspected, state-inspected, and custom facilities. The other states have only federally-inspected facilities and custom facilities. States with their own state meat inspection program have more control. If the regulatory agency is arbitrarily enforcing the law, it’s easier for a state legislature to rectify the problem if a state rather than a federal agency is involved; states have control over the agency’s budget.

Ten states with their own inspection programs are currently participating in the federal Cooperative Interstate Shipments Program (CISP), a program where meat from approved state-inspected slaughterhouses and processing facilities (each with 25 or fewer employees at a facility) can be sold in interstate commerce.

There are six meat inspection exemptions under federal law [see 9 CFR 303.1], including the retail exemption which is similar to the retail exemption for poultry. Every state has adopted the exemptions to some extent.

All states have adopted the custom meat exemption: no inspector has to be present when slaughtering and processing take place at a custom facility, but the owner of the animal cannot sell the meat.

A second exemption from meat inspection is the “personal use exemption” under which a farmer raising an animal can slaughter the animal on the farm premises with minimal regulatory requirements. There are considerably fewer requirements than for custom slaughter; there is no recordkeeping requirement for livestock slaughtered under the personal use exemption.

Legislative Goals

Small-scale farmers generally have better access to custom slaughter facilities than they do to federal- and state-inspected slaughterhouses. This raises the question: With the custom meat exemption adopted in all states, how can states pass laws getting maximum use of the exemption for their residents while still being in line with the requirement that laws be at least as strict as the federal regulations?

Three states—Colorado [C.R.S. 25-4-1627], Nebraska [RRS Neb. 54-1915.01; 54-1915.02], and Wyoming [Wyo. Stat. 11-49-104]—have pushed the envelope recently by passing animal share laws, also known as meat shares. The Wyoming statute [Wyo. Stat. 11-49-102] defines “animal shares” as “an ownership interest in an animal or a herd of animals created by a written contract between an informed end consumer and a farmer or rancher that includes a bill of sale to the consumer for an ownership interest in the animal or herd and a boarding provision under which the consumer boards the animal or herd with the farmer or rancher for care and processing and the consumer is entitled to receive a share of meat from the animal or herd.”

FSIS interprets the law to mean there is no limit on owners for a custom animal; however, all owners of a herd would not necessarily get meat from each animal that is slaughtered. The Nebraska law requires that individual owners getting meat be identified before slaughter; the Colorado and Wyoming laws have no such requirement. FSIS investigated the implementation of the Wyoming law for compliance with the Federal Meat Inspection Act but took no action. It would be a much better business model if livestock farmers did not have to identify before slaughter which herd owners would be getting meat from the processed animal. USDA’s position is likely to be that farmers cannot distribute the meat to unspecified owners; even if this is the case, a Nebraska-type bill would still be worth pursuing to help increase demand for custom meat.

USDA has interpreted the personal use exemption to include a scenario where the farmer sells a live animal to an individual who slaughters and processes the animal on the farmer’s premises without any assistance from the farmer. Vermont has passed an “itinerant slaughter” law [6 V.S.A. 6-3302 and 3311a], where the individual purchasing the livestock can hire a third-party to slaughter the animal and transfer the animal to a custom facility for processing; the state has interpreted this type of transaction to be under the personal use exemption. This law spares the animal the stress of being transported to a slaughterhouse—something that can affect the quality of the meat. This is a law worth passing in other states regardless of whether the activity is under the custom or personal use exemption.

Whether through legislation or policy work, maximizing the extent of each of the other meat inspection exemptions would also be time well spent.

Even though there is no federal prohibition against the sale of meat from non-amenable species processed at a custom facility, it appears that few states allow this practice. Sales of meat from non-amenable species is another area where state legislators can substantially improve the law. Legislation explicitly allowing this type of sale would help increase business for livestock farmers.

The one non-amenable species where there are favorable laws for processing and sales is rabbit; a number of states have laws allowing the on-farm slaughter and processing of rabbits with little or no regulation. Given that few, if any, foodborne illness outbreaks have been attributed to the consumption of rabbit meat, chances for passing state legislation are good.

The sale of wild game is illegal in all 50 states, but there is no prohibition against hunters giving it away. A recently passed law making meat from wild game more available to the poor is a Texas statute [Sec 433.06 Health and Safety Code] allowing the donation to food banks of meat from wild game that is not indigenous to the state. The Texas law allows hunters to process the meat themselves rather than having to take it to a custom facility.

Other Areas for Local Food Legislation

There are plenty of other areas where statehouses can pass legislation to improve the regulatory climate for small farmers, homesteaders, and local artisans, including legislation pertaining to farm stores, the “right to farm,” zoning, agritourism, and food and agricultural infrastructure.

Farm Stores

Virginia has a couple of model laws for farm stores that other states should adopt. Virginia exempts farms selling their own farm-produced products directly to consumers either on their farm or at a farmers market from the state requirement to obtain a retail food permit [VAC 2-585-10]. Virginia also has a law [COV 15-2-2288.6] providing that local government cannot require a permit unless there is a substantial impact on the public health, safety, and welfare for a farm store not only selling its own products but also the products of other farms; this law expands markets for small farms and improves convenience for consumers—something that has a major effect on farm sales.

Right to Farm Laws

All states have “right to farm” laws protecting agricultural operations from lawsuits for a public or private nuisance; in nearly all states, the farm has to be on land zoned for agriculture. The Michigan Right to Farm Act goes further, protecting farms from nuisance suits regardless of zoning designation if the farm has a bona fide commercial operation and is in compliance with applicable Generally Accepted Agricultural Management Practices (GAAMPs) [MCL 286.471-474]. There is dicta (judicial opinion) in at least one Michigan case where the court stated that a producer selling a dozen eggs would be protected under the right to farm law as a bona fide commercial operation. With the right fact pattern, it’s conceivable that a homestead operation selling a minimal amount of food could be protected from nuisance suits. A Right to Farm Act protecting homestead operations from nuisance suits regardless of zoning is worth pursuing and could be another path toward making localities more self-sufficient in food production.

Other Zoning Laws

State zoning laws, which prescribe the type of zoning ordinances local governments can enact, can limit the authority of localities to restrict your ability to grow your own food, including raising your own poultry and livestock. Florida recently passed a law [Fla. Stat. 604.71] prohibiting local governments from banning growing produce on residential property. There was a bill before the Texas legislature last session that even prohibited property owners’ associations (POAs) from banning residents growing fruits and vegetables and raising a limited number of fowl and rabbits on a single-family residential lot (House Bill 1686, 2021 Session). State zoning legislation is a key step to remove impediments to bolstering local food security and self-sufficiency.

Agritourism

Small farms need to have as many revenue streams as possible; one source of income for them is agritourism. A Virginia statute [COV 3.2-6400] defines “agritourism activity” as “any activity carried out on a farm or ranch that allows members of the general public for recreational, entertainment, or educational purposes, to view or enjoy rural activities, including farming, wineries, ranching, horseback-riding, historical, cultural harvest-your-own activities or natural activities and attractions. An activity is an activity whether or not the participant paid to participate in the activity.”

Over half the states have passed laws limiting liability for the farm (the agritourism operation) when there is an injury to a participant in an agritourism activity. The laws recognize there is an inherent risk in agritourism activities (e.g., injury from livestock) and generally limit liability to instances where the farmer either commits an act or omission that constitutes negligence—in some states, the standard is “gross negligence”—or displays willful or wanton disregard for the safety of the participant when that act (which includes not informing the participant of known dangers on the property) causes injury, damage, or death to the participant(s); or where the agritourism operation intentionally injures the participant. These laws make it more feasible for farmers to have agritourism activities on farm premises and bring in additional revenue. As far as is known, however, no state agritourism laws limit liability for any foodborne illness attributed to the farm, including an illness resulting from an event like a farm-to-fork dinner [COV 3.2-6401; Fl. Stat. 570.85-89].

State Money for Food and Agricultural Infrastructure

A productive use of state revenue is for the legislatures to appropriate money in the form of grants or loans for agricultural infrastructure—for example, for the initial construction or upgrade of slaughterhouses, meat processing facilities, commercial kitchens, dairy plants, grain mills, hatcheries, greenhouses, food hubs, or warehouses. States can also provide tax credits and deductions to private parties that invest in this type of infrastructure. The goal is for local food producers to receive state money that doesn’t come with—in Franklin Sanders’ words—“a sock in the jaw.” The more local infrastructure that is in place, the less reliant the state’s residents will have to be on food from the conventional system—food that is rapidly deteriorating in terms of quality and transparency.

One state adopting an innovative approach in this area is Alaska, whose legislature recently created a program establishing forgivable loans for farms and meat processing facilities. Under the new law [Alaska Stat. 03.20.200 and 03.20.205], “a recipient’s loan may be forgiven by the department if the recipient implements a business plan approved by the department to make improvements for the recipient’s farm [or meat processing facility]….” The forgivable loan program must allow a loan to be forgiven “if the recipient implements the approved business plan and demonstrates a subsequent increase in food production and distribution.” The new law provides that farms can receive forgivable loans up to $150,000, and meat processing facilities of up to $250,000.

Mobile slaughterhouses are another specific piece of infrastructure states can provide funding for—whether they be federally-inspected, state-inspected, or custom—to help small farms without ready access to fixed facilities. According to USDA, the U.S. currently has nine federally inspected mobile slaughterhouses.

Constitutional Amendments

There currently aren’t many amendments in the state constitutions directly covering food. However, more state legislatures are considering amendments to establish stronger protections for the right to grow, raise and obtain food, and to fight back against corporate control of the food supply and the accelerating decline in the quality and transparency of food in the industrial system. The usual process for a state constitutional amendment is that the legislature passes a resolution sending a proposed amendment to referendum for the voters to decide.

In 2021, Maine voters passed a landmark amendment enshrining a right to food in the state constitution. The Right to Food Amendment (RTFA) Article I Section 25 of the Maine Constitution reads, “All individuals have a natural, inherent and inalienable right to save and exchange seeds and the right to grow, harvest, produce and consume the food of their own choosing for their own nourishment, sustenance, bodily health and well-being, as long as an individual does not commit trespassing, theft, poaching or other abuses of private property rights, public lands, or natural resources in the harvesting, production or acquisition of food.”

The RTFA raises questions that will likely be decided by a court at some point: Does the amendment control over conflicting zoning laws as long as the activity doesn’t create a public or private nuisance? Does the word “acquisition” include obtaining food from an unregulated source? The answer to both questions should be “yes”; there should be a broad interpretation of the amendment to improve Maine’s self-sufficiency in food production, food security, and traceability of the food supply in the state.

The Tennessee legislature had a similar resolution before it in 2022 on the right to food, likewise in 2023 for the Virginia legislature; other state legislatures are also exploring the introduction of an RTFA resolution.

Another constitutional amendment worth considering to protect your food supply and reduce the regulatory burden on small farmers is Article XIII Section 7 (no license to peddle) of the Minnesota Constitution which provides, “Any person may sell or peddle of the products of the farm or garden occupied and cultivated by him without obtaining a license therefor.” In 2005 the Minnesota Supreme Court ignored the historical context of the amendment (it passed at the beginning of the 20th century when there was basically no regulation of small farms), holding that the amendment only exempted licensing but not inspection and other regulation.

The Future Is Now

These are just some of the food laws state legislatures can pass to strengthen the local farm and food economy, benefit the health of their residents, and enable the state to be more self-sufficient in food production. Many states have made major strides in building out a parallel local food system—it’s an ongoing process and one that states should engage in with all the possible resources at their disposal.

The future is now. Centralization and synthetic food are what lies ahead if the push to grow local food systems doesn’t continue.