Small, local farm operations in recent years have faced increasingly stringent state regulations that, farmers say, threaten their farms and the rights of local residents to buy local food.
Now, they are pushing back.
A group of Hancock County farmers has proposed an ordinance in four towns that would exempt small farms from new state licensing and inspection requirements as long as the farm products are sold directly to a customer for home consumption. The ordinance is mirrored in two bills introduced this session by state Rep. Walter Kumiega, D-Deer Isle.
The proposed ordinance is backed by the local Halcyon Grange in Blue Hill and will be presented to voters in the towns of Blue Hill, Brooksville, Penobscot and Sedgwick at their respective annual town meetings this spring.
At the heart of the ordinance is the concern that small, diversified farms in the state face a growing number of requirements to build and maintain facilities that are geared to larger “industrial agriculture” operations.
The state rules, based on federal regulations, are complicated, restrictive and costly to small, local farmers, according to ordinance supporters. They make it more difficult for small farms to get started and stay in business, and thus also curb local access to locally grown goods, according to Heather Retberg of Penobscot, one of the organizers of the ordinance movement.
“The rules as they are being written are not favorable to small farmers,” said Retberg, who with her husband, Phil, operates Quill’s End Farm, a 100-acre spread in Penobscot where they raise grass-fed beef and dairy cattle, sheep, laying hens and dairy goats.
They have been farming for about 12 years. But when Phil stopped working as a carpenter and began farming full-time several years ago, they obtained a retail license so they could establish an on-site store to sell individual cuts of meat, butchered by a USDA-approved butcher, as well as the bulk cuts they had been selling. After operating under that license for a year, Heather Retberg said, they were informed last year by state Department of Agriculture inspectors that their operation did not meet state regulations.
New state laws, she said, forced them to stop selling chickens for meat because they could no longer use the local slaughterhouse to process their chickens. And reinterpreted state rules threatened to shut down their dairy operation selling raw milk directly to customers. They had sold milk based on previous information from the Department of Agriculture that they did not need to be licensed.
“We hadn’t done anything different,” she said. “The rules had changed. We were told that our milk distribution needed to be licensed and inspected. That would mean 85 pages of regulations and about $10,000 in upgrades.”
Research by the Retbergs and some of their customers convinced them that they were, in fact, operating within the law, although they now sell raw milk only to customers who have a contract with them through a buyers’ club.
“It really shouldn’t be this complicated,” she said.
Backers of the local food ordinance movement argue that so long as there is a willing seller and a willing buyer, there is no need for a small farm operation to be licensed or inspected by the state.
The difficulty for operators of small farms is that the state rules are being written as “one-size-fits-all regulations” designed for large agribusiness, said Deborah Evans, who operates Bagaduce Farm in Brooksville. That, she said, makes it difficult for small farms to remain viable.
Those regulations threaten to disrupt not only local farm operations, but also could affect other traditional, rural activities such as farmers markets and church suppers.
The proposed local ordinance, she said, declares that people have the right to produce, sell and consume local foods without the need for state licensing or inspections.
“We have the right without being inspected, validated and regulated to do that,” Evans said. “We have these rights no matter what the regulations say.”
There remains some question whether the ordinances would supersede state and federal law. Proponents maintain that the authority to enforce the local ordinance is rooted in the principles of local control and self-government, and are backed by the Declaration of Independence and the Maine Constitution as well as by Maine law.
In documents they have distributed at hearings and informational meetings, ordinance supporters have cited Maine law that grants municipalities “all powers necessary to protect the health, safety and welfare of the residents of the town.” They also cite a separate law declaring that “it is the policy of the state to encourage food self-sufficiency for the state.”
Although the proposed ordinance is the first of its kind directly related to food and farming, Retberg said the “rights-based” document is similar to ordinances enacted in other Maine towns relating to large-scale water extraction from town aquifers, genetically modified organisms and corporate personhood.
None of those local ordinances have been challenged in court yet, Retberg said.
The Maine Attorney General’s office, however, disagrees with their view on the effectiveness of local ordinances and already has advised the Department of Agriculture that the proposed ordinances could not take precedence over state laws and regulations.
“To the extent that the ordinance attempts to exempt any of the town residents from the food establishment and licensing laws, it would not be effective,” Assistant Attorney General Mark Randlett said. “They do not have the ability to conflict with state law.”
Randlett added that he does not deal specifically with federal regulations, but said the same likely would be true for federal law as well.
He noted that he provided an opinion for the previous administration, but has not discussed the issue with the state’s newly appointed agriculture officials.
While the ordinance, if adopted, may serve only as a statement of principle, Rep. Kumiega said that voter approval in the towns could rally support for the two similar bills he has introduced in the Legislature. LD 330 would exempt farm food produce and homemade food from state licensing requirements. LD 366 specifically would exempt producers of raw milk from licensing requirements if the sales are made on the premises by the producer.
According to Kumiega, the state’s licensing practices are guided by the U.S. Department of Agriculture and federal Food and Drug Administration, and do not take into account the impacts on small farms.
“Those rules are geared for operations that are processing 1,000 chickens an hour or 1,000 beef cattle per hour,” Kumiega said. “There’s no scale; there’s nothing to allow any small operation to get started.”
Kumiega said there recently has been increased focus on food safety on the federal level, particularly targeting raw milk. While proponents of raw milk argue that it has more health benefits than pasteurized milk, the federal government on its food safety website specifically warns about the risks of drinking raw milk. The warning states that raw milk can carry harmful bacteria that can cause illness and even death.
Kumiega also noted that the federal Food Safety and Modernization Act, adopted in December and signed into law by President Obama in January, includes new measures designed to ensure food safety nationwide.
Among its provisions is a call for more frequent inspections using “science-based standards for the safe production and harvesting of fruits and vegetables,” according to Margaret A. Hamburg, commissioner of the Food and Drug Administration, writing on the government’s food safety website.
Although the new law includes provisions that would exempt small-farm businesses from some of the produce safety standards, Kumiega said there is concern that the rules being established to implement the law will put new pressure on small, local farms.
“There’s a big fear that that’s going to have disastrous effect on small producers,” he said. “A lot depends on how it’s enforced.”
One of the problems, according to both Kumiega and proponents of the local ordinance, is that the state depends on federal funding for its inspection programs and that funding is linked to adopting federal rules and regulations.
“The USDA and FDA strong-arm the states to enforce their laws with funding,” Kumiega said. “They threaten to withhold funds unless the [state] rules are equal to the federal rules.”
The state’s new agriculture commissioner, Walter Whitcomb, said that the impact of the food safety act on local farms is a hot-button topic not only in Maine, but around the country.
“It’s been brought to the forefront by the food safety legislation,” Whitcomb said earlier this month in a telephone call from Washington, D.C, where he was meeting with other agriculture commissioners who also had raised the issue.
Whitcomb, himself a dairy farmer, seemed sympathetic to the local farmers, and indicated that the state department of agriculture would certainly review the federal rules to see if there is any “wiggle room” for Maine. But he also stressed that the state has to work within the framework of the federal regulations.
“The rules are still being written,” Whitcomb said, referring to how the food safety act will be implemented. “We’re not sure what the federal rules will mean to the states.”
The local proponents of small farms argue that efforts to ensure food safety should not target small, local farms, which, they said, have a much better food safety record than the large, industrial farms.
“We’ve had this [local] food system in place for more than 100 years,” said Evans of Bagaduce Farm. “We’ve been providing beef and chicken, milk and fish; we’ve been holding baked bean suppers and church suppers, and no one has gotten sick.”
The most recent figures from the U.S. Centers for Disease Control and Prevention indicate that annually about 48 million Americans get sick, 128,000 are hospitalized and 3,000 die from food-borne diseases. Most of those diseases are traced to large “factory farms” and processing plants, Evans said, adding that there have been no food-borne illnesses traced back to small, local farms.
While that broad statement may be technically true, Dr. Stephen Sears, acting director of the Maine Center for Disease Control, said there is more to the story. The Maine CDC sees a very small amount of food-borne illnesses each year, Sears said, and often is not able to find the source for the problem.
Still, the local ordinance proponents argue that providing food that is raised and prepared close to where it is purchased and consumed is the best way to ensure food safety.
“If someone comes up my driveway, and can look around and inspect the operation, they can decide whether our food is right for them,” said Jo Barrett from King Hill Farm in Penobscot. “They don’t need the government to decide for them.”
The local ordinances will be voted on in Penobscot, Brooksville and Sedgwick at town meetings in March, and in Blue Hill in April.
Kumiega’s two bills have been assigned to the Legislature’s agriculture committee, but no date has yet been set for a hearing.