Lawline: Counseling the Local Food Movement Part II

Part 2: Counseling the Local Food
Movement
Lawline
November 18, 2013
By Cari B. Rincker, Esq.

My Background
• Grew up on a beef cattle
farm in Central Illinois
• Education
– A.S. in Agriculture from
Lake Land College
– B.S. in Animal Science from
Texas A & M
– M.S. in Ruminant (Beef
Cattle) Nutrition from
University of Illinois

My Background
• J.D. from Pace Law School
(2007)
– Certificates in Environmental
Law & International Law

• Associate at Budd-Falen
Law Offices in Cheyenne,
Wyoming (2008-2009)
– Environmental Law, Property
Law, Land Use & Federal
Lands
– Worked with “cowboys”

Cattle branding in
Casper, Wyoming

My Background
• Have my own food and
agriculture law practice in New
York City
• Chair of the American Bar
Association, General Practice,
Solo & Small Firm Division’s
Agriculture Law Committee
• My food and agriculture client
base
– Farmers to ranchers
– Small to mid-size agri-business
– Food entrepreneurs

Overview
• Food Safety Modernization
Act
• National Organic Program
• Direct Meat Marketing
• On Farm Poultry Slaughter
• Agriculture Districts and
the Right to Farm
• Urban Agriculture
• Volunteer Farm Labor

Food Safety Modernization Act
• Food Safety Modernization Act
(“FSMA – pronounced Fiz-ma”)
was signed into law by President
Obama on January 4, 2011
– Shifts the focus from responding
to contamination to preventing it
• Reactive system to a proactive
system

– First major update to food safety
law in 70 years

• FDA released
proposed rules on
January 2013
• Awaiting final rules

(C) Cari Rincker, 2013

8

• The proposed rule mandates
the establishment of two
primary regulations:
– Standards for produce
production (The “Produce
Rule”)
– Food safety measures for
facilities that process food for
human consumption (the
“Preventative Controls Rule”)

Proposed Produce Safety Rule
• Establishes science-based
minimum standards for the safe
growing, harvesting, packing and
holding of produce on farms

• Proposed new standards regulate
the following areas:
– Worker training, health & hygiene
– Agricultural water
– Biological soil amendments of
animal origin
– Domesticated and wild animals
– Equipment, tools and buildings
FDA – FAQ’s

• Farms fall into one
of three categories:
– Exempt
– Modified
requirements
– Full requirements

National Sustainable Agriculture Coalition

• What kind of produce?
– Most fruits and vegetables
in the raw / unprocessed
state
– Exemptions: Doesn’t
apply to raw agricultural
commodities that are:
• rarely consumed raw
– E.g., potatoes
• Produced for personal or
on-farm consumption
• Destined for commercial
processing (with
documentation)
– E.g., canning, bagged
salads and leafy
greens


A farm is exempt if
the average annual
sales during the
previous 3-year
period is no more
than $25K
– This is sales not
profit

Modified Requirements
• If the produce will undergo
additional commercial
processing that kills harmful
microorganisms, then the
produce is not covered
– However, the farm will be
subject to recordkeeping
requirements and the
compliance and
enforcement
requirements of the
Produce Rule


Modified Requirements
• If the farm on average over the
previous 3 years has less than $500K
in gross annual sales and the
majority of the food is sold directly
to a “qualified end-user” (e.g.,
consumer, restaurant or retail food
establishment) then the farmer
must:
– Provide the name and complete address
of the farm where the produce was
grown on either a food packaging label
or on a sign at the point of purchase
– Comply with the compliance and
enforcement requirements of the
Produce Rule; and

– Be subject to the provisions regarding
the withdrawal of the farm’s status as a
partially covered (“qualified exempt”)
operation.

Proposed Preventative Controls Rule
• A “facility” is a location that manufactures, processes, packs or holds food
for consumption in the United States
• FDA will look at whether there are any manufacturing or processing
activities
–
–
–
–
–
–
–
–
–
–
–
–
–
–
–

Irradiation
Cutting/coring/chopping/slicing
Canning
Coating with things other than wax/oil/resin
Drying that creates a distinct commodity
Artificial ripening
Cooking
Pasteurizing/homogenizing
Infusing
Distilling
Salting
Smoking
Grinding/milling
Freezing
Slaughtering animals or post-slaughter operations


•

FDA looks at the type of
manufacturing and processing
activities
– Whether the farm is conducting
the activities on its own
agricultural products
• Reduced requirements
– Whether the facility is
manufacturing and processing
someone else’s agricultural
products


• Proposed rule has two main
points:
– Requirements for hazard
analysis and risk-based
preventative controls; and
– Revisions to existing Current
Good Manufacturing Practice
(“GMP”) requirements

• Some facilities are subject to
only one and not the otherimportant to see them as two
different requirements

• Who is subject to the
Hazard Analysis and
Risk-Based
Preventive Controls
(“HARPC”)?
• 3 categories
– Exemptions
– Modified
requirements
– Full requirements

Exemptions from Hazard Analysis and RiskBased Preventative Controls
•

Following products are exempt
–
–
–
–
–

Juice
Seafood
Dietary Supplements
Alcoholic beverages
Low-acid canned foods

•

Grain elevators and warehouses that are solely
engaged in storing agricultural commodities or
packaged food

•

Small or very small on-farm businesses that
conduct certain low-risk manufacturing and
processing, packing or holding activities
– Making jams and jellies
– Manufacturing honey and maple syrup


Facilities Subject to Modified
HARPC Requirements
• If the facility on average over the previous 3 years has
less than $500K in gross annual sales and the majority
of the food is sold directly to a “qualified end-user”
(e.g., consumer, restaurant or retail food
establishment) then the facility must maintain certain
records and must certify that:
– It qualifies for modified requirements; and
– It is implementing and monitoring preventive or complying
with applicable non-federal food safety law and must
display a label or sign with the complete business address
of the facility at the point of sale


• Who must comply with the
current Good Manufacturing
Practices (“GMPs”)?
– Only facilities that are
exempt are warehouses and
grain elevators that store raw
agricultural commodities
(including fruits and
vegetables) intended for
further processing


National Organic Program
• Harrison Pittman et al., “A Legal Guide to the
National Organic Program”, The National
Agriculture Law Center (January 2011) available
at http://nationalaglawcenter.org/wpcontent/uploads/assets/articles/pittman_organic
program.pdf (last visited September 29, 2013).
– NALC has a great online law library on a myriad of
legal topics affecting the food and agriculture industry
(“Reading Room” tab online)

• Congress enacted the Organic Foods Production
Act (“OFPA”) in 1990
– to create “national standards governing the
marketing of certain agricultural products as
organically produced products,”
– assure consumers that “organically produced
products meet a consistent standard,” and
– facilitate “interstate commerce in fresh and
processed food that is organically produced.”

• OFPA directed the U.S. Department of Agriculture
(“USDA”) to establish national standards for
organic production and handling
Pittman at 1

• On December 21, 2000, USDA
published the final rule that created
the organic standards
– Directed that it be administered by
the USDA Agriculture Marketing
Service (“AMS”)

• As of October 21, 2002, for a
producer or handler to sell, label or
represent that an agricultural
product is “organic” then he/she/it
must comply with NOP standards
– Limited exceptions
Pittman at 1

NOP Applicability
• Exceptions to NOP certification
requirements
– 1. Production or handling operation
that has a gross income from sales
totaling $5K or less
• Primary direct-to-consumer and indirect
markets
• Still must comply with applicable organic
production and handling requirements
– Doesn’t have to submit an organic system
plan

• Must also comply with labeling
requirements for exempted operations
• Cannot be used as ingredients in
processed products identified as
“organic”?
7 CFR 205.100(a)

NOP Applicability
requirements
– 2. Handling operation that only
handles agricultural products
containing less than 70% organic
ingredients by total weight
• Must comply with the standards for
avoiding the commingling and contact of
organic products with prohibited
substances
• Labeling standards for excluded
operations and multi-ingredient packaged
products with less than 70% organic
• Record-keeping requirements for
exempted operations

7 CFR 205.101(a)(3)

NOP Applicability
requirements
– 3. Handling operation that
identifies ingredients as “organic”
only on the information panel only
• Must comply with the standards for
avoiding the commingling and contact
of organic products with prohibited
substances
• Labeling standards for excluded
operations and multi-ingredient
packaged products with less than 70%
organic
• Record-keeping requirements for
exempted operations

7 CFR 205.101(a)(4)(i)-(iii)

NOP Applicability
• 2 main exclusions from NOP certification
– 1. handling operations that sell only “organic”
products that are packaged or otherwise
enclosed in a container before the operation
receives or acquires the product and it remains in
the same package
– 2. retail food establishments that process on the
premises “raw and ready-to-eat” food from
products that were previously labeled as organic.
7 CFR 205.101(b)

Recordkeeping Requirements
Certified Operations

Exempted Operations

Excluded Operations

• Certified Operations
– Must maintain records that relate to the “production or
handling of agricultural products sold or labeled as organically
produced” for five years beyond the date the records are
created.
– The records must include a detailed history of the substances
applied to the operation’s fields or agricultural products, the
names and addresses of the persons who applied the
substances, the dates and rates the substances were applied,
and the method used to apply the substances.
– They must also be sufficient to demonstrate that the operation
has complied with all applicable NOP requirements.
– The records must be available during normal business hours to
representatives of the Secretary, the State official governing a
State’s organic program, if applicable, and the certifying agent
for inspection and copying.
7 USC 6511(d) and 7 CFR 205.103

• Exempted Operations
– Must maintain records sufficient to demonstrate
that ingredients identified as “organic” were
organically produced and handled and to verify
the quantities produced from those ingredients.
– The records must be kept for at least three years
after they are created.
• USDA Representatives and the state official governing a
state organic program must be allowed access to the
records for inspection and copying during normal
business hours.
7 CFR 205.101(c)

• Excluded Operations
– Confusing and unsettled
– the comments state, in pertinent part, that
“*e+ach exempt, excluded, and certified operation
should maintain the records which demonstrate
compliance with the Act and the regulations
applicable to it and . . . establish . . . that the
exempt, excluded, or certified operation is and has
been in compliance with the Act and the
regulations.”

Allowed and Prohibited Substances,
Methods and Ingredients
• For a certified operation to sell, label, or represent a
product as “organic,” it must produce or handle the product
without the use of synthetic substances and ingredients,
unless the substances or ingredients are specifically listed
as allowed on the national list of approved substances
(“National List”).
– A “synthetic” is “*a+ substance that is formulated or
manufactured by a chemical process or by a process that
chemically changes a substance extracted from naturally
occurring plant, animal, or mineral sources, except that such
term shall not apply to substances created by naturally
occurring biological processes.”

7 CFR 205.105 and 7 USC 6502(21)

• Certified operations must
also produce and handle
products without the use
of prohibited nonsynthetic
or nonagricultural
substances unless on the
National List

• There are certain vaccines,
for example, that can be
used for limited purposes
that are on the National
List
7 CFR 205.105 and 205.2

• Cannot use an “excluded method”
– Methods used to genetically modified organisms
– Influence their growth and development by means
that are not possible under natural conditions
• Cell fusion, micro/macro-encapsulation and DNA technology
(e.g., gene deletion, gene doubling, introducing foreign
genes)

– Excluded methods do not include the use of
traditional breeding, conjugation, fermentation,
hybridization, in vitro fertilization, or tissue culture

NOP Organic Production and
Handling Standards
• Organic System Plan
– A producer or handler of a production or handling operation
seeking certification must submit an “organic system plan” to its
certifying agent or, if applicable, to the governing official of its
state’s organic program.
– An “organic system plan” is a plan of management of an organic
production or handling operation that has been agreed to by
the producer or handler and the certifying agent and that
includes written plans concerning all aspects of agricultural
production or handling” as set forth in OFPA and the final rule’s
organic production and handling requirements.
• Including recordkeeping procedures
• Describe management practices
7 USC 6513

Land Requirements
• Any field or farm parcel from which harvested crops
are intended to be sold, labeled, or represented as
‘organic,’ must not have had any prohibited substances
applied to it for the three years preceding the harvest
of the crop

• The field or farm parcel must also “*h+ave distinct,
defined boundaries and buffer zones such as runoff
diversions to prevent the unintended application of a
prohibited substance to the crop or contact with a
prohibited substance applied to adjoining land that is
not under organic management.”
7 CFR 205.202(b)-(c)

Soil Fertility and Crop Nutrient
Management Practice Standards
• Under the soil fertility and crop
nutrient standards, a producer
must “select and implement
tillage and cultivation practices
that maintain or improve the
physical, chemical, and biological
condition of soil and minimize
soil erosion.”
• A producer must also manage
crop nutrients and soil fertility by
rotating crops, using cover
crops, and by applying plant and
animal materials to the land.
7 CFR 205.203(c)

Seeds and Planting Stock
Practice Standard
• A producer must use
organically grown seeds,
annual seedlings, and
planting stock in their
operations
– There are some limited
exceptions…

7 CFR 205.204(a)

Crop Rotation
• A certified organic
producer must
implement a “crop
rotation” practice
into its operation
– Example: Corn and
Beans

7 CFR 205.2

Livestock Production
• Livestock products intended
to be sold, labeled or
represented as “organic”
must be produced from
livestock raised in organic
management conditions
from the last third of
gestation or hatching
– 3 exceptions
• Poultry – from second day of
life
• Milk- dairy animals with 1
year of organic handling
• Breeder livestock- at the time
of birth
7 CFR 205.236

Livestock Feed
• Must be given a feed
ration that is
composed of organic
agricultural products
– Includes grains, hay,
silage, pasture and
fodder
– Note that organic
does not necessarily
mean grass fed
7 CFR 205.2

Livestock Health and Well-Being
• Required to establish and
maintain preventative livestock
health care practices
– Must administer vaccines and
other veterinary biologics when
needed

• Must allow “for exercise,
freedom of movement, and
reduction of stress” appropriate
for the livestock species
– Must accommodate the animal’s
natural behavior

Pittman at 21-22

Temporary Variances
•

Under certain circumstances, producers and handlers can obtain temporary
variances from the
–
–
–
–
–
–
–
–
–
–
–

•

soil fertility and crop nutrient management standard;
seed and planting stock standard;
crop rotation standard;
crop, pest, weed, and disease management standard;
origin of livestock standard;
livestock feed standard;
livestock health care practice standard;
livestock living conditions standard;
organic handling requirements;
facility pest management standard; and the
commingling and contact with prohibited substance prevention standard.

The Secretary may issue a temporary variance due to natural disasters, “*d+amage
caused by drought, wind, flood, excessive moisture, hail, tornado, earthquake, fire,
or other business interruption*,+” and for certain research purposes.

7 CFR 205.290(a)(1)-(3)

NOP: Labels, Labeling, and Market
Information
• 4 Labeling Categories
– 100% Organic
– “Organic”
– “made with organic
_______”
– Products with less than
70% organically
produced ingredients

• Percentage is
determined by weight
in solid form
Pittman at 27

Labeling Categories: 100% Organic
• For a raw or processed product to be sold, labeled, or
represented as “100 percent organic,” it must contain
100 percent organically produced ingredients.
• Products in this labeling category may display “on the
principal display panel, information panel, and any
other panel of the package and on any labeling or
market information” pertaining to the product
– the term “100 percent organic” to modify the name of the
product, and
– the term “organic” to identify the organic ingredients
contained in products containing two or more ingredients.
Pittman at 28

Labeling Categories: Organic
For a raw or processed product to be sold,
labeled, or represented as “organic”– the
second labeling category– it “must contain
at least 95 percent organically produced
raw or processed agricultural products.”
– The remaining ingredients in the
product must be organically produced,
unless they are either commercially
unavailable in organic form or are
“nonagricultural substances or
nonorganically produced agricultural
products produced” in accordance with
the National List requirements.

Pittman at 28-29


48

Labeling Categories:
made with organic ___________
• Multi-ingredient products
that are comprised of at
least seventy percent but
less than 95% organic
ingredients fall within the
third labeling category,
“made with organic
(specified ingredients or
food group(s)).”
– Example: Candy bar
“made with organic
peanuts”
Pittman at 30

Labeling Categories:
70% Organic ingredients
The organic ingredients
contained in products falling
within the fourth labeling
category, “products with less
than 70 percent organically
produced ingredients,” must
have been produced and handled
in accordance with the organic
production and handling
requirements.
– The packages of products in
this labeling category are
prohibited from displaying
the USDA seal.

NOP Certification
• 6 Basic Requirements
– Comply with all the OFPA and
NOP production and handling
stands
– Create, implement and annually
update and organic system plan
– Allow a certifying agent to
conduct on-site inspections
– Maintain records
– Make payments to the certifying
agent
– The person must notify the
certifying agent when there is
an application of a prohibited
substance or change in the
operation

NOP Compliance
• If certified operation
knowingly sells or label
a product that is organic
when it did not comply
with the standards:
– Suspension or
revocation of
certification
– Civil penalties up to
$10K per violation
– Administrative hearings

Pittman at 50

Direct Marketing of Meat Products
Martha Goodsell and Dr.
Tatiana Stanton, “A Resource
Guide to: Guide to Direct
Marketing,” Cornell
University Cooperative
Extension (January 2011).

Federal Meat Inspection Act
Are the animals amenable?
• Amenable
• Amenable Livestock- Cattle, sheep, goats
• Amenable poultry- chickens, turkey, ducks, geese,
guineas, ratites (ostrich, emus, and rhea), squabs
• Nonamenable – not subject to the Federal Meat
Inspection Act
• Game animals and birds
• Even if a farmer raises a domesticated species, it is
still considered non-amenable

Cornell at 11

Federal Meat Inspection Act
• Requires imported
meat products to
have inspection
requirements
equivalent to the U.S.
requirements
– Must remain in the
original packing the
country of origin and
foreign establishment
number of the label
Cornell at 15

Custom Exempt Slaughterhouses
• May offer slaughtering
services without federal
inspection and oversight
– Should not be confused with
state slaughterhouses that
are inspected by state
officials

• For the owner themselves
or their household
– Must be stamped “Not for
Sale”

• Custom-exempt plants are
inspected periodically

Cornell at 19

My family would harvest our
4-H projects and steers–
example of custom slaughter

Nonamenable Slaughtering and
Processing Facilities
• There are specialized state
facilities that conduct
butchering and processing
for nonamenable animals
– In New York, must obtain
an Article 5-A license
– Higher standards than
conventional customexempt plants
• Example: hot water at 180°
F vs. 170° F
Cornell at 21

Selling Meat Direct to the Consumer
• In New York, all red
meat from amenable
species must be
slaughtered at a USDA
inspected facility
– Some states allow for
state- inspected
slaughter facilities if
sold intrastate

On Farm Poultry Slaughter
CARI B. RINCKER AND PAT B. DILLON, “FIELD MANUAL:
LEGAL GUIDE FOR NEW YORK FARMERS AND FOOD
ENTREPRENEURS” (2013). (Chapter 23) (pp 339346)
Bliven, Lynn et al., “On-Farm Poultry Slaughter
Guidelines,” Cornell University Cooperative
Extension (July 2012).

On Farm Poultry Slaughter
• General rule: poultry must be slaughtered in a USDA
inspected facility
– Poultry Produce Inspection Act (“PPIA”)

• 1000 Bird Limit Exemption: New York poultry producer
who processes and sells less than 1000 chickens or 250
turkeys
– 1 turkey = 4 chickens
Combinations
are okay
Ex: 50 turkeys
& 800 chickens

=

1000 Bird Exemption
• Additional Requirements
– Must be chickens and turkeys that
he/she raised on the farm;
– Poultry farmer does not engage
in the buying or selling poultry
products other than those
produced from poultry raised on
his/her farm;
– Slaughter and processing are
conducted under sanitary
standards, practices and
procedures that are sound, clean,
not adulterated or misbranded,
and fit for human food;
– Poultry producer keeps the
required records; and,
– Poultry does not move into
interstate commerce.
Rincker at 339-340

1000 Bird Exemption
• Slaughter and
processing must be
done on site
– Poultry farmer may
own their own
equipment or rent a
Mobile Poultry
Processing Unit
(“MPPU”)

Rincker at 340

1000 Bird Exemption
• It is per farm, not per farmer
– Example: farm partnership
formed between Grandpa (400
chickens), daughter (200
chickens) and two sons (400
chickens), and 1 grandson (100
turkeys) – the farm enterprise is
not eligible for the 1000 Bird
exemption

• It is recommend by the NYS
Department of Agriculture &
Markets that the poultry be
sold direct to the consumer

1000 Bird Exemption
• Food label must include:
– Product name and description;
– Inspection Legend and Establishment
Number (for farms processing under
this exemption, it should say
“Exempted – P.L. 90-492);
– Net weight statement (includes
“packed on” date, “sell by” date, “net
wt lb.”, “price per lb”, and net weight);
– Name and address of the farm; and,
– Safe handling statement (if processed
under on-farm exemption, then label
must say “Exempt P.L. 90-492”).

• If there is a nutritional claim, then a
Nutritional Facts Panel must be
included

Producer/Grower
1000 Bird Limit Exemption
• Processing Guidelines
– Water used in processing, cleaning and sanitation, in
chilling tanks and ice manufacture should be potable
and must be tested annual to determine potability;
– Any approved sanitizing agents for use on food
contact surfaces must be used in prescribed
concentrations and methods;
– Any agents (including lubricants) used on equipment
maintenance must be food grade;
– The on-farm processing facility must be managed in a
manner that protects the environment (e.g., surface
and groundwater, and soils).

Good Manufacturing Practices (“GMP’s”)
•
•
•
•
•
•
•

Provide Training for Processing Personnel
Establish Health & Hygiene Policies
Maintain a Clean Processing Environment
Control Pests
Control Access to the Processing Facility
Provide Potable Water
Securely Store Processing Equipment, Utensils,
Supplies & Materials
• Manage Processing Wastes

(Sanitation) Standard Operating
Procedures (“SOP’s” “SSOP’s”)
• Site Management & Pest Control
• Personnel Health & Hygiene
• Pre-Operational Inspection & Sanitation
Schedule
• Daily Operational Sanitation Maintenance
• Chill Tank, Giblet Chill Containers &
Refrigeration Temperature Monitoring
• Post-Operational Sanitation Schedule

Hazard Analysis Critical Control Point
(“HACCP”) Plan
Even though a HACCP Plan is not required for birds slaughtered and
processed under the Producer/Grower 1000 Bird Limit Exemption it is
highly recommended
• 7 Steps of HACCP
–
–
–
–
–
–
–

Access food safety hazards associated with all areas of your product
Determine Critical Control Points (“CCP’s”)
Establish the Critical Limits for each CCP
Establish Monitoring Procedures for CCP’s
Establish Corrective Actions to be taken when CCP’s are not in control
Establish Record-Keeping Procedures
Establish Verification Procedures to determine that the system is working

Article 5-A Licenses in New York
• If a farmer harvests more than 1000 birds
yet stays in intrastate commerce in New
York, this farmer does not have to harvest
the poultry in a USDA inspected facility if
the farm obtains an Article 5-A license
– This is Article 5-A under the New York
Agriculture & Markets Law
Rincker at 342

Article 5-A Licenses in New York
• Exclusions
– Bona fide farmer who butchers his
own domestic animals or fowl on
his farm exclusively for use by the
farmer and his/her household
– A custom slaughterer
• This is where animals are delivered
by the owner for slaughter for use in
the household of the buyer (i.e.,
cannot sell the meat or carcass)

– 1000 Bird Exemption
– Any person who donates the
poultry to a charitable or not-forprofit organization

Rincker at 343

Article 5-A Licenses
• 2 year license - $200
application
• NYSDAM must be satisfied
with the equipment and
sanitation
• NYSDAM may inspect the
premises
• A drawing must be
submitted included the
specifications of the facility
• Inspection results must be
posted on the premises

Agriculture Districts
Article XIV, Section 4 of the
NYS Constitution provides
for the policy of New York
to encourage the
development and
improvement of its
agriculture lands for the
production of food and
other agricultural products

• Article 25-AA of NY Agric. & Mkts Law
– “Local governments, when exercising their powers to
enact and administer comprehensive plans and local
laws, ordinances, rules or regulations, shall exercise
these powers in such manner as may realize the policy
and goals set forth in this article, and shall not
unreasonably restrict or regulate farm operations
within agricultural districts in contravention of the
purposes of this article unless it can be shown that the
public health or safety is threatened.” Section 305-a.

• Among other advantages,
farms located in agricultural
districts are typically exempt
from many local and state
regulations including State
Environmental Quality Review
(“SEQR”) and some building
codes for building construction.
– Farms located in agriculture
districts should be free of
overly restrictive land use
regulations.


77

Right-to-Farm Law
• Nearly every state around the
U.S. has a Right to Farm law

• Right-to-Farm laws bar nuisance
suits against farmers and
ranchers using sound production
practices in agricultural districts


78

Right to Farm
• Under section 308[1], NYSDAM issues opinions
upon request on “sound agricultural practices”
• NYSDAM may consider:
– operation of farm equipment
– proper use of agricultural chemicals and other crop
protection methods
– direct sale to consumers of on-farm products
– agricultural tourism

• NYSDAM may consult with USDA and/or Cornell

Right to Farm
• Upon issuance of an opinion, NYSDAM must
publish a notice in a newspaper in the
surrounding area. See NY Agric. & Mkts § 308[2].
• If the farmer is conducting a sound agricultural
practice on any land in an agricultural district and
subject to an agricultural assessment, then said
practice is not considered a private nuisance.
See NY Agric. & Mkts § 308[3].

NYSDAM Determination of
Unreasonably Restrictive Laws
• Whether the requirements will:
– adversely affect the farm operator’s ability to manage the
farm operation effectively and efficiently;
– restrict production options which could affect the
economic viability of the farm; and
– cause a lengthy delay in the construction of a farm building
or implementation of a practice; the cost of compliance for
the farm operation affected

• Affect the availability of less onerous means to achieve
the locality’s objective.
• Relevant standards established under State law and
regulations.

Right to Farm at the Local Level
• NYSDAM encourages localities to
provide for a Right to Farm
exemption in its local land use law
– “*n]othing contained herein shall be
deemed to limit the right to farm as
set forth in Article 25-AA of the NYS
Agriculture & Markets Law....”

• Local laws oftentimes provide that
no “sound agricultural practice” as
defined in Article 25-AA shall be
deemed prohibited under the
ordinance or subject to its permit
requirements.

Right to Farm Disputes
• Can be resolved for free
through the New York
State Agriculture
Mediation Program
(“NYSDAM”) between
the farmer and the
neighbor

Backyard Chickens
• Cities that allow for the use of backyard
chickens may place specifications on the
following:
– number of hens,
– setbacks for coops/pens,
– number of roosters (if allowed at all),
– neighbor consent,
– pest control, and
– feed storage.

Beekeeping
• Local zoning
ordinances that allow
for urban apiaries may
post regulations for the
lot size and setbacks
• Beekeepers may still be
subject to tort liability
– People v. McOmber

Examples of New York Ordinances with
Urban Livestock
• Albany- no livestock allowed
Chapter 115, Article VIII, § 115-31: No person shall keep,
harbor, or shelter any farm animal or fowl within the City
of Albany. For purposes of this article, farm animal or
fowl shall include cows, cattle, horses, ponies, donkeys,
mules, pigs, goats, sheep, chickens, ducks, geese, or other
animals or fowl usually known as "farm animals or fowl,"
but not solely limited to the aforementioned and not
including common household pets.
Guide to Urban Farming at #29

Urban Livestock
• Buffalo

Cont.

Chapter 341, Article II, § 341-11.1: It shall be lawful for any person to
keep, permit or allow any domesticated chicken hens ** *under the
following terms and conditions:
A. No more than five chicken hens shall be allowed for each singlefamily dwelling or multifamily dwelling.
B. No chicken hens shall be allowed in multifamily complexes,
including duplexes, without the expressed written consent of the
owner of the building and all tenants residing in the building other
than the applicant.
C. No chicken hens shall be allowed without the express written
consent of all residents residing on property adjacent to that of
the applicant.

Urban Livestock
Cont.

• Buffalo
D. No roosters shall be allowed.
E. Chicken hens are to be restricted to the rear or backyard of any
lot in a residential zoning district or the rear or backyard of a
residential use in all other zoning districts.
F. Chicken hens shall be kept as pets and for personal use only; no
person shall sell eggs or meat or engage in chicken breeding or
fertilizer production for commercial purposes.
G. Persons wishing to keep chicken hens within the City of Buffalo
must obtain a license from the Office of the City Clerk after
payment of an annual fee of $25, and after inspection and
approval of the coop and cage that chicken hens are to be kept in
by an Animal Control Officer, pursuant to § 341-11.4 hereof.

Urban Livestock
• Buffalo
Chapter 511, Article XXII, § 511-115: It shall be unlawful
for any person to stable, keep as a pet, or permit to
remain any cloven-footed or hoofed animal, such as, but
not limited to, cows, goats, horses, pigs, or sheep, on any
lot or premises within a residential district or business
district as classified under Chapter 511 of the Code of the
City of Buffalo, and in no case shall such animal be kept
on the same lot or premises with a dwelling.

Urban Livestock
• Geneva
Chapter 77, Article I, § 77-2: No person shall
keep or harbor any bees in the city. Any
beehive used or occupied by bees is hereby
declared to be a nuisance; and it shall be
unlawful to keep or maintain any such hive in
the city.

Urban Livestock
• Geneva
Chapter 77, Article I, § 77-3: No person shall keep or
harbor any chickens, ducks, geese or other domesticated
fowl in the city except in the AR, Agricultural Residential
Use Districts and F Industrial Use Districts and not closer
than 200 feet to any house, except the owner's,
apartment building, church, school, hospital or any other
building customarily used or occupied by human beings,
such as but not limited to stores, hotels, restaurants,
offices and factories.


Urban Livestock
• Geneva
Chapter 77, Article I, § 77-4: No person shall keep or harbor any cattle,
horses and sheep in the city except as follows:
– Cattle, horses and sheep may be kept in the city in the AR,
Agricultural District if maintained not closer than 100 feet to any
house except the owner's, apartment building, church, school,
hospital or any other building customarily used or occupied by human
beings, such as but not limited to stores, hotels, restaurants, offices
and factories.
– Every person maintaining animals as permitted in Subsection A of this
section shall keep clean and sanitary every shed, barn or structure
housing said animals.
– Every such shed, barn or structure shall be thoroughly cleaned at least
once every 24 hours and refuse from the same shall, when collected,
be kept in airtight containers until disposed of in accordance with any
other provisions of this Code.

Urban Livestock
• Geneva
Chapter 77, Article I, § 77-5: No person shall
keep or harbor any goats, pigs or swine in the
city; and it shall be unlawful to keep or maintain
any goat pen, pig sty or other building for the
housing of goats, pigs or swine.


Urban Livestock
• New Rochelle
Chapter 89, Article VI, § 89-16: The Council of the City of
New Rochelle hereby finds that the keeping, permitting,
harboring and/or raising of farm animals, including but
not limited to those of the equine, swine, bovine,
ruminant and avian species on parcels of land with
inadequate size and setbacks within the jurisdiction of
the City of New Rochelle causes offensive odors which
interfere with the quality of life of the public, property
values and the public health, safety and welfare of the
community.

Urban Livestock
• North Tonawanda
Chapter 57, § 57-2: From and after the enactment
of this ordinance, it shall be unlawful for any
person, firm or corporation to harbor or maintain
any animals or livestock within the limits of the City
of North Tonawanda, New York. This section shall
not be construed to apply to slaughterhouses and
abattoirs that are covered in the provisions of other
city ordinances.

Urban Livestock
• Rochester
Chapter 30, Article I, § 30-12: No person, firm,
association or corporation shall bring into, keep,
hold, offer for sale, sell or kill or allow to be kept,
held, offered for sale, sold or killed in the City of
Rochester any live animals, except animals for
show or exposition purposes only, and except
white mice, white rats, cats, dogs, horses, mules
and donkeys.

Urban Livestock
• Rochester

No person, firm, association or corporation shall bring into, keep, hold,
offer for sale, sell or kill or allow to be kept, held, offered for sale, sold
or killed in the City of Rochester any chickens, geese, ducks, doves or
pigeons, turkeys or other animals or owls, except persons holding a
poulterer's license, without having a license therefor issued by the
Chief of Police and under and pursuant to the provisions of this
chapter; provided, however, that no license shall be required for any
animals or fowls in transit through the said City; and provided,
however, that nothing herein contained shall apply to
slaughterhouses, cattle yards or any place where any cattle or swine
are killed or dressed; and provided, however, that nothing herein
contained shall apply to any cattle, sheep or swine brought into the
City and directly transported to a slaughterhouse or cattle yard.

Urban Livestock
• Syracuse
Chapter 16, Article XVIII, § 12-62: No person shall keep within
the city of Syracuse any animal which is deemed to include a
reptile, bird and/or an animal of a species which is wild,
ferocious, fierce, dangerous, poisonous or naturally inclined to
do harm*…
• In Chapter 16, Article XVIII, § 12-63, wild, ferocious, fierce,
dangerous, and poisonous animals, birds and reptiles are
defined to include cows, guinea hens, goats, sheep, and
swine, excluding Chinese Potbelly pigs.

Urban Livestock
• White Plains
Title V, Chapter 5-2, Article I, § 5-2-1: A. No live chickens,
geese, ducks or other fowl shall be kept in the city unless
they are securely enclosed in such a manner as to
prevent them from straying from the premises of the
person owning them.
Title V, Chapter 5-2, Article I, § 5-2-2: A. It shall be
unlawful for any person to allow any livestock which is
under his ownership, care, custody or control to run at
large.

Urban Livestock
• Yonkers
Chapter 65, § 65-23: No person shall keep, cause
or allow to be kept on, in or about any premises
or property any poultry, fowl or other birds,
except as hereinafter provided:
– It shall be lawful to keep for purposes of sale live
poultry in a live poultry market.

Volunteer Labor on Farms/ CSA’s
• Types
– “Work Share” or “Half
Work Share”
– Travel-Based
Volunteers
– Informal Worker Shares
– Casual Volunteers

“Compensated” Farm Volunteers
• Minimum Wage?
– Fair Labor Standards Act
(“FLSA”)
– definitions of
“employee” and
“volunteer”

“Compensated” Farm Volunteers
• Analysis:
– Is the volunteer working in
expectation of
compensation?
– Is the volunteer displacing
employees?
– Does the volunteer give the
food business a competitive
advantage?
– Is the farm offering
educational benefits?

Is the Farm Exempt from Federal
Minimum Wage?
• If a farm utilizes fewer than 500 man-days of
labor in any calendar quarter of the previous
year then they are exempt from federal
minimum wage requirements
– 29 U.S.C. § 213(a)(6), 29 C.F.R. Part 780 Subpart D.
– If volunteers are considered employees, then they
contribute to the man-day calculation.

Insurance
• Workers Compensation
• Farm liability and commercial
insurance policies typically
exclude coverage for
“employees”
• Commercial insurance will
likely cover unpaid volunteers
but not “compensated” farm
volunteers

Questions on Being an Agriculture Lawyer
• Fridays with Cari
Skype Calls
– First Friday of the
month at 2pm ET
– RSVP to
cari@rinckerlaw.com
– No charge

I Just Wrote a Book
Cari B. Rincker & Patrick B.
Dillon, “Field Manual: Legal
Guide for New York Farmers
& Food Entrepreneurs”
(2013)
Available at
http://www.amazon.com/Fi
eld-Manual-Legal-FarmersEntrepreneurs/dp/1484965
191

Please Stay in Touch
• Send Me Snail Mail: 535 Fifth Avenue, 4th Floor,
New York, NY 10017
• Call Me: (212) 427-2049 (office)
• Email Me: cari@rinckerlaw.com
• Visit My Website: www.rinckerlaw.com
• Read My Food & Ag Law Blog: www.rinckerlaw.com/blog
• Tweet Me: @CariRincker @RinckerLaw
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Lawline: Counseling the Local Food Movement Part II

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