All right folks, let’s talk rules and regs. This is the not-so-glamorous side of food production, but it is arguably the most important. Food safety is a hot topic, and for good reason. You may recall the cantaloupe/listeria outbreak that made ill or killed a number of people across 28 states. This outbreak was directly linked to poor food handling procedures – contaminated water in the farm’s storage facility. As a result, the farmers each faced 6 years in prison, and 1.5 million in fines. The Federal judge who sentenced the farmers offered the “mercy” of the court; the farmers will serve probation, and pay reduced fines. Even though the farmers did not serve time in prison, make no mistake, food safety handling is a very important topic. The safety of the public and the protection of our businesses and livelihood are important topics, now and into the future.
While there are a number of regulatory hurdles to jump in order to start a backyard farm (home business use permit, state business filing, DBA filing, EIN filing, State sales tax license, and city sales tax license), what I want to focus on in this post is the food safety side of things. Backyard food production, intended for sale, does not fit neatly into the over-arching bureaucratic documents that tend to govern food production in the United States. The Food Safety and Modernization Act (read here and here) was developed by the FDA in response to major food contamination occurrences, none of which involved small scale producers like a backyard farmer. The Food Safety and Modernization Act has been criticized as not just being unfriendly to small scale, local food production, but indeed that this act is openly hostile to the backyard farmer. To the credit of the FDA, they took those complaints seriously and made some adjustments to the act in an effort to calm the fears of small scale farmers.
Next up is HACCP, the Hazards Analysis and Critical Control Points method for preventing food borne illness during food production. HACCP was developed by the Codex Alimentarius Commission on behalf of NASA and the Pillsbury Corporation. The initial effort was to make food free from risks for astronauts. This system is widely embraced around the world as the gold standard for safe food production.
Not to be outdone, the USDA has a set of protocols all their own – Good Agricultural Practices and Good Handling Practices. The GAP and GHP protocols are audits – checklists to verify the safety of the food being produced. As backyard farmers, we are mainly concerned with GAP – Good Agricultural Practices. The GAP audit scores a food production facility/farm and verifies what practices are in place. For a peak at the Field Operations check-list click here; for the Post Harvest check-list click here.
Now, what does all this regulatory gumbo mean for the average backyard farmer? Well, we’re not really sure. We know that HACCP and GAP are best practices, and most food retailers require this documentation from their producers. We know that if you produce food from your backyard farm, and sell directly to a customer through an NSA, CSA, or farmers market, many of the Cottage Laws cover those sales. We know that liability for tainted food falls, ultimately, with producer (that’s you). And we know that food can be a dangerous commodity. We also know, at least in El Paso County, that there is genuine interest on the part of the health authorities to support local food production and sales, without endangering the public.
If you plan to sell food through an NSA, CSA, or farmers market, you will have less red tape to wade through. That doesn’t mean that selling to grocery stores or restaurants is out of the question, but it will mean more forms to fill-out, and possibly a lower price paid to you for your produce (you will most likely be paid wholesale prices by grocery stores and restaurants, and retail prices for sales directly to customers through an NSA, CSA, or farmers market).
I would strongly encourage you to have a conversation with your local health department and learn what food policies you need to follow. What is allowed in one state or county, may not be allowed in a neighboring state or county. Check with your local food policy folks, get the facts, and follow the rules. Producing food for others opens you up to liability, and you do not want to be on the receiving end of a lawsuit. Take it from the cantaloupe farmers – best practices are best for all involved.
Have general legal questions about producing food from your backyard? Check out this site for support.