Memo To My Children: Register Your Vegetable Stand Or Face Million-Dollar Fine

To: All Front-Porch Zucchini Peddlers

From: In-House Counsel, aka "Mom"

Date: March 19, 2009

Re: Legal Exposure Created By Vegetable Stand

As you may know, the recent peanut butter scandal has given impetus to a bill currently making its way through Congress: H.R. 875, or the Food Safety Modernization Act of 2009.  We will be following this legislation closely, because if it becomes law in anything resembling its current form, the front-porch vegetable stand and even the backyard vegetable garden may well represent a legal exposure that the household cannot bear.

While the peanut butter scandal mainly concerned factory food and factory officials who rival Snidely Whiplash for sheer villainy, the authors of H.R. 875 are proposing to protect the public from the furthest thing from factory food...namely, us.

The bill states quite plainly that it applies to "any food establishment ... engaged in processing, packing or holding food for consumption in the United States."  All such establishments are required to register with a new Food Safety Agency and be subject to its regulations, as well as random regular inspections. As a Category 4 food establishment, you can expect to have the coffee table you drag out onto the sidewalk inspected at least quarterly. 

You cannot assume that you are exempt because none of you is yet 12 or because your income amounts to $60 in a brisk week. 

And I cannot not assume that I am exempt under the provisions for "food production facilities" because I don't farm for profit, but merely to feed and amuse you.  The legislation states clearly:

The term 'food production facility' means any farm, ranch, orchard, vineyard, aquaculture facility, or confined animal-feeding operation.

There is no hobby or small farm exception. 

H.R. 875 gives this new Food Safety Agency the right to set regulations...

...with respect to growing, harvesting, sorting, storage operations, minimum standards related to fertilizer use, nutrients, hygiene, packaging, temperature controls, animal encroachment and water.

In other words, the new agency will be able to deal preemptively with the possibility of unsafe food by telling all farmers how to farm. 

This includes the innovative sustainable agriculture types you like to chat up on Saturday mornings at the Saratoga Farmers' Market, as well as...us.

You should be aware that our current methods of refrigeration--sticking stuff on the staircase between the cellar door and the Bilco doors--are unlikely to meet regulatory standards in future. 

Provisions concerning fertilizer use and animal encroachment may well prevent us from growing organically, using our neighbor Herb's alpaca bedding.  As recent Garden Rant posts have documented, there is enough science to generate a certain amount of hysteria as to whether manure is truly safe.  And the overreach of H.R. 875 is nothing if not hysterical. 

Of course, if the bill is not a product of hysteria, the only other possibility is that it is profoundly corrupt.  A sop to agribusinesses who don't like to see us growing our own beans rather than buying them from Green Giant.

I'm deeply sorry to cause any distrust in the workings of our government among impressionable people not yet 12.  But if there is one thing legislators do not understand--indeed, often actively disapprove of because there's not much profit in it for their campaign donors--it's the cycle of life.

And that, my colleagues, is what we happen to be tapping into in our backyard garden. 

As your lawyer, I advise that we cease all such activities immediately.  This includes eliminating the annual trip to buy more seedlings than you can possibly plant at Clear Brook Farm, arguing over who gets what section of the garden and whose spot is bigger, dragging the garden hose over my emerging plants, failing to see what's a path and what's not, and other such accustomed pleasures of spring.

As your mother, on the other hand, I am willing to buy arms and build barricades in order to allow you to sell your boxes of cherry tomatoes on the sidewalks of our fair city.

Please advise.

Comments

[TC]

I doubt this legislation will get anywhere, as it's worded. A similar bill was introduced in 2007 and fizzled. A garden writer on the Garden Writers Discussion List says, "Because they are introduced does not mean that they will pass as written, or that they will pass at all."

I'm a little annoyed at what I think is an alarmist attitude.

[Susan Harris]

THANK YOU for reading that damn thing (so I don't have to) and bringing it down to the human level.
I'd love to know which interest groups were consulted in writing it.

[LauraP]

I've been following this issue and Michele's not exaggerating a bit. I am appalled at these proposed bills. I've read every word, and they're scary products of over-reaction and good intentions gone horribly wrong. These proposed laws are overly intrusive, overly vague where specifics really matter, all-encompassing, with huge fines, and no limits on the powers of those tasked with enforcement. And, they're unnecessary. We have adequate food safety laws, but inadequate inspections due to underfunding. There's a logical solution to that . . .

[Jill]

This actually isn't true. There's a fact sheet out by Food & Water Watch. The bill wouldn't touch your garden or farmers markets or anything like that. Most of the bill has nothing to do with farms whatsoever, and NONE of it has to do with gardens. There's a small group of people spreading misinformation and lies about this bill.

At any rate, the bill is not going to pass. I've been following it in the House and the bill that will likely pass is HR 759.

[Michele]

Jill, did you read the bill? I did.

[ChristyACB]

I sure hope no one ever has to give a letter like this to the gardening family! I think that even if this bill makes it farther than the last one, it will get sent back down *because* of the omissions, and therefore, implicit application to, householder's and their gardens.

[Dave]

Hopefully cooler heads will prevail. It's an unnecessary bill. I wonder how bad this would effect CSA's.

[Michele]

Oh, I don't think it will pass. But it's still ridiculous and a little frightening.

[alan]

I read the bill too. As a small farmer who sells salad greens at the farmers market my operation would be at least a category three food establishment. Monthly inspections. You didn't even touch on the traceability clause. For one small farmers take on the bill you can look here. http://www.robertsroostecofarm.com/2009/03/food-safety-modernization-act-of-2009.html

[Elizabeth Stump]

My biggest question is, what about people who donate their homegrown food to food pantries and soup kitchens? Plant a Row for the Hungry??? What will happen to that program?

A gentleman I bought some heirloom tomato seedlings from, through craigslist, said last year his daughters sold some of their backyard grown veggies from the front of their house and his neighbor called the county health department on them! GOOD-BYE LEMONADE STANDS TOO with this law!!! This is the death of common sense! Instead of teaching our children to be self-sufficient, let's teach them that we have to ask the government for everything, from permission to handouts. I'm fed up with knee-jerk, blanket policies.

[Christopher C NC]

This proposed bill is another trojan horse claiming to have pristine and sanitary manure. It is just more coprporate influence on our laws.

"A sponsor of those bills, Congresswoman Rosa Delauro (D-CT) is working with Monsanto to create these so-called food safety laws. How can a member of Congress get away with this? Her husband, Stan Greenberg, is her Monsanto connection."

http://www.opednews.com/articles/The-Clintons--promoting-t-by-Cheryl-Neilson-and-090228-126.html

[Jay]

This law is an abomination.

[gardenmentor]

I'm at a loss. I keep thinking of me and my 7 yr old pals selling squash & cucumbers & tomatoes out of an old wagon at the play park back in the 70s. Nothing processed. Probably nothing washed (including the dirty kids and the fresh veggies). I can just see the local sheriff deciding to ignore the drunk adults in the nearby bar at noon and hauling in the 5 and 7 year olds instead for selling an unregistered, non-irradiated curbit...sigh...

[Michelle]

Thanl you for writing about this bill! We have been discussing it over at WildlifeGardeners.org, and I haven't been quite sure what to make of it.

[Elizabeth Stump]

And what about school gardens????

[Hayley]

Hello everyone,

My name is Hayley and I work for Food and Water Watch. In the posts, Jill, mentioned our fact sheet, well I think it's important to clear up the bill, so I'm going to post it here. Our policy experts have read and interpreted the entire bill and basically there are 6 food safety bills being circulated in Congress, but only this one seems to be receiving a lot of attention. H.R. 875 – would overhauling the totally dysfunctional Food and Drug Administration. But the rumor mill has this legislation pegged as something entirely different. Now it’s time to set the record straight. Here are a few things that H.R. 875 DOES do:

- It addresses the most critical flaw in the structure of FDA by splitting it into two new agencies –one devoted to food safety and the other devoted to drugs and medical devices.
- It increases inspection of food processing plants, basing the frequency of inspection on the risk of the product being produced – but it does NOT make plants pay any registration fees or user fees.
- It does extend food safety agency authority to food production on farms, requiring farms to write a food safety plan and consider the critical points on that farm where food safety problems are likely to occur.
- It requires imported food to meet the same standards as food produced in the U.S.

And just as importantly, here are a few things that H.R. 875 does NOT do:
- It does not cover foods regulated by the USDA (beef, pork, poultry, lamb, catfish.)
- It does not establish a mandatory animal identification system.
- It does not regulate backyard gardens.
- It does not regulate seed.
- It does not call for new regulations for farmers markets or direct marketing arrangements.
- It does not apply to food that does not enter interstate commerce (food that is sold across state lines).
- It does not mandate any specific type of traceability for FDA-regulated foods (the bill does instruct a new food safety agency to improve traceability of foods, but specifically says that recordkeeping can be done electronically or on paper.)

HOWEVER Several of the other bills include provisions that should worry small farmers – like H.R. 814, which calls for a mandatory animal identification system, or H.R. 759, which is more likely to move through Congress than H.R. 875 and calls for electronic recordkeeping on farms and registration fees for processing plants.

I hope everyone found this helpful!

[alan]

If we wanted to take it to an absurd level, then anyone who gardens and then prepares their food would fall subject to this bill. Probably won't happen, but it could. The sad thing is that the exemptions for the big guys are built in. Nothing will change for them except the process will be overseen by one federal bureaucracy rather than state ones. Less people to buy. More efficient.

[Country Gardener]

Glad to see so many outraged comments over the proposed intrusive government regulation. It warms the cockles of my secret libertarian heart. There is hope for us yet. (Maybe.)

[Michele]

Thanks, Hayley. I'm not a lawyer, just faking, and I missed the significance of this section:

SEC. 406. PRESUMPTION.

In any action to enforce the requirements of the food safety law, the connection with interstate commerce required for jurisdiction shall be presumed to exist.

So I guess my kids and my farmers' market farmers are off the hook. I'm just glad that my country house is in New York State, rather than in Vermont, which is just over the next hill. Otherwise, the vegetable stand could be in big trouble.

[alan]

I find it interesting, almost spooky, that every conversation about this bill I look at has some comment from your organization, or someone using information prepared by your organization, telling us not to worry about this bill. You say it is basically good, and we shouldn't worry. You say it probably wont pass anyway. If it isn't going to pass and wouldn't be a bad thing if it did, why do you care so much that your information keeps actively being inserted into the conversation? Looks like you are trying to lull us into submitting. "Don't worry, everything will be OK."

[Mr. McGregor's Daughter]

I am a lawyer & I disagree with Hayley's interpretation of the bill. A court called upon to enforce the provisions should this become law would not even read Food & Water Watch's interpretation, but would apply the rules of statutory construction. According to the plain language of the bill, there is nothing in it to exclude backyard gardeners or those who grow their own fruit, as there is no definition of "farm" or "orchard." In addition, the bill would also apply to those who make their own wine or kids who make lemonade out of fresh lemons to sell at a roadside stand. The sec. 406 presumption works against kids & farmers' markets, as it presumes a connection with interstate commerce, requiring the grower or produce seller to overcome the presumption. This proposed legislation is overly broad and does not narrowly target the source of the harm at issue. I have already sent an email to my Congressional Representative urging that she vote against this bill.

[Michele]

Love you, Mr. McGregor's Daughter. Are you tell me that I can remove my correction?

[Susan AH]

I'm not a lawyer, but I agree with you, Mr. McGregor's Daughter. I didn't see anything that exempts 'gardens'--how big does a garden have to be before it becomes a defacto farm or orchard?

[Rebecca Burnham]

Yikes- I'm in the process of planning my very first ever vegetable garden, located in my front yard! does this excuse me from enforcement. I am hoping it generates a lot of excitement, and not of the FDA kind, as the area I live in is a bit run down. A Bonaccio Free Zone we affectionately call it. Wish me luck

Thanks Michelle- be seeing you soon!

[Layanee DeMerchant]

I did read that the FDA would be split into two agencies with another regulatory agency formed. Just what we need, a new regulatory agency. Land of the free? Not so much.