At the Sustainable Economies Law Center (SELC) we frequently run up against the challenge of agricultural and food safety laws that are not designed with the local food movement in mind. So many of these laws are clearly designed to facilitate a food system comprised of long distribution chains catering to very large enterprises. The idea of direct, farmer-to-consumer transactions is sometimes just not contemplated as a real possibility by the law.
We at SELC believe that agricultural regulations should be more risk-appropriate and scale-appropriate in order to remove unnecessary barriers to small-scale sustainable farming, community-supported enterprises, farmer-to-consumer sales, and local food consumption generally. That's why we have advocated for laws such as the California Homemade Food Act and the Neighborhood Food Act, and supported local initiatives to legalize urban agriculture, among our many policy campaigns.
For the past two years, the California Legislature has taken our attention to some vague and confusing health and safety laws regarding how food can be sold or given away to food enterprises such as grocery stores, restaurants, food banks, and other such "retail food facilities," as the law calls a place where consumers from among the general public go to get food. The state Health and Safety Code (California's main body of food safety laws) is unfortunately vague and unclear about what farmers must do, if anything, in order to be deemed an "approved source" for the purpose of providing food to these "retail food facilities."
Current California law requires that all food that is brought into any retail food facility be from an “approved source.”1 This means that nearly all California restaurants, grocery stores, food trucks, cafeterias, and even many food banks and many other places where food is stored, sold, or given away, the facility must have someone at the site ensure that every ingredient coming into the facility is “approved.”2 The definition of an “approved source” only tells us that "approved" food must comply with applicable laws at all levels of government (not just California law), without specifying what exact laws apply. In the absence of applicable laws, the code tells us, a food producer must abide by “current public health principles and practices, and generally recognized industry standards that protect public health” but with no explanation of where one can learn about such principles, practices, and standards.3
When I called around the state asking various agricultural and health regulators about how a small farm might know whether it is an "approved source" and how it might obtain documentation to prove that it is an approved source, most regulators were unsure how to advise on how to navigate this law, especially when it comes to selling or donating fresh fruits, vegetables, and nuts to retail food facilities, without a wholesale enterprise acting as a middleman. The Sustainable Economies Law Center has been informed of a few incidents in California in which a health regulator demanded that a retail food facility not accept fresh produce from very small local farms due to lack of proof that the small farm was an “approved source,” even though there was no reason to believe that the small farm was handling food unsafely.
New Law, AB 1990: Last year (in 2014) the California State Legislature passed AB 1990, which does not actually change the definition of "approved source" but according to the bill's author, Assemblymember Rich Gordon, the bill was supposed to address the "approved sources" conundrum for small farms, backyard gardens, and gleaners. Unfortunately, the well-intentioned attempts by this lawmaker and supporting organizations created new legal conundrums for small-scale produce growers, the small businesses seeking to purchase from them, and even charitable organizations such as food banks, which sometimes accept donations from small farmers and individuals with backyard fruit trees. AB 1990, as was signed into law, did the following:
Created the new legal term "community food producer" which is defined as "a producer of agricultural products on land that is not zoned for agricultural use but is otherwise in compliance with applicable local land use and zoning restrictions, including, but not limited to, restrictions governing personal gardens, community gardens, school gardens, and culinary gardens."4
Sets legal requirements for "community food producers," including but not limited to produce labeling requirements and safe food handling practices.
Note: the required safe food handling practices for "community food producers" are described in the Small Farm Food Safety Guidelines provided by the California Department of Food and Agriculture at this link: http://www.cdfa.ca.gov/is/i_&_c/sffsg.html
Note: if you are involved in a small farm or garden, we highly recommend reading all of the food safety guidelines at the link above! They are surprisingly easy to read and understand compared to many documents provided by government agencies and they could help you prevent food-related illness.
Note: "community food producers" are not the only food producers that must follow these guidelines. Due to other recent state legislation, farms and gardens must now follow these guidelines if they are selling at certified farmers' markets (AB 1871 passed in 2014) or if they are selling as a CSA (AB 224 passed in 2013), among other types of sales.5
Allows local departments of environmental health (which are the agencies that regulate retail food facilities such as restaurants and grocery stores) to require that "community food producers" file a registration form with the department.
Allows local environmental health departments to charge a fee (an amount to be determined by each local agency) for the registration.
Allows "community food producers" to "sell or provide whole uncut fruits or vegetables, or unrefrigerated shell eggs, directly to the public, to a permitted restaurant, or a cottage food operation."6
DISCLAIMER: This is just a summary of some parts of the law. It is not comprehensive. It should not be interpreted as legal advice. If you have questions about how the law applies to your situation please consult an attorney, perhaps at SELC's Resilient Communities Legal Cafe.
There are numerous criticisms that have been raised about AB 1990. I will not articulate all of them here, but the following are criticisms that SELC has voiced in the State Capitol in Sacramento based on our work with food producers affected by this new law:
The conundrum of "approved sources" has been a confusing headache for various farmers, not just urban farmers, so it would have been preferable to have one set of rules apply to many small farms, not just those growing on land that is not zoned as agricultural. Zoning is often not a major factor in determining the level of risk of a fruit and vegetable farm or garden. It's puzzling why zoning is the deciding factor in the law for determining whether a farm is regulated as a "community food producer" or not.
The law specifies that "community food producers" can sell or provide food directly to the public, to a permitted restaurant, or a cottage food operation, however, it remains silent about other types of food facilities such as grocery stores, food banks, food trucks, food carts, cafeterias, and other types of "food facilities." This has created confusion among food producers and regulators regarding what types of transactions are allowed. The Sustainable Economies Law Center expressed this concern to the Governor when he was considering whether to sign AB 1990 or veto it - he ultimately signed the bill with a public signing message that expressed that he believed the bill's intent was to be expansive, and not restrictive,7 but local regulators have continued to express mixed opinions on how the law should be interpreted. Because of this lack of clarity in the law, multiple partners and allied organizations of SELC have been significantly delayed or deterred in their efforts to sell or purchase fresh urban farm produce to grocery stores, including corner stores in low-income communities in some cases.
We are aware of several charitable organizations in various regions of California that collect fruits and vegetables from numerous small donors (sometimes farmers, sometimes individuals with a fruit tree in a front yard) and take the donated fruit to a food bank or other charitable food facility. Depending on how you interpret AB 1990 this is not allowed, or a local health department can require that each small donor who meets the definition of "community food producer" - even just a person with a fruit tree in their yard - fill out a form and pay an annual fee in order to comply with the law. Nonprofit organizations that collect food to feed the hungry have pointed out that this is a significant deterrence for small donors, who are often providing some of the most desirable food that food banks and other charitable organizations can acquire - freshly picked fruits grown without pesticides. This article in The Press Democrat reports that the law has already deterred some such donations of fresh produce to an organization in Sonoma County.
Some growers who meet the definition of "community food producer" already sell their produce at farmers' markets, or through CSAs (community supported agriculture), or have plans to sell their produce in these ways. Sales through farmers' markets and sales through CSAs are already regulated for food safety under other provisions of the California Health and Safety Code plus the Food and Agricultural Code to ensure labeling requirements and safe food handling requirements, similar to AB 1990. Now, some such food producers may need multiple permits or registrations with their respective fees in order to legally sell their produce, even though the food safety requirements of the various different permits are the same or nearly the same. AB 1990 should have included an exemption from registration for "community food producers" who are already regulated under other redundant laws, but there is no such exemption in AB 1990.
Another new law? This year, Assemblymember Gordon, his staff, and the environmental health regulators' association have worked on a bill to address some of the confusion and barriers created by AB 1990. The new bill, AB 234, has made it through all of the major policy committees it needs to get through, and we at SELC believe it has a high chance of passing, such that it would go into effect on January 1, 2016. SELC recently decided to support the bill for these reasons:
1) AB 234 will replace the word "restaurant" with the term "food facility" in the part of the law that describes to whom "community food producers" can sell. The term "food facility" includes restaurants as well as grocery stores, food trucks, corner stores, farmers' markets, and numerous other venues for selling food that so-called "community food producers" have already been using despite the lack of clarity in the law. AB 1990 stayed silent on grocery stores, corner stores and other venues that count as "food facilities," yet it allowed sales to restaurants. So AB 234 will clarify that "community food producers" can sell or donate to any food facility, not just some types.
2) AB 234 will provide exemptions from the requirement that "community food producers" register with the local health department when community food producers sell or donate to a permitted food facility (such as a restaurant, mobile food enterprise, food bank, store, etc). This would mean that some "community food producers" avoid the requirement to fill out paperwork and possibly pay a fee in order to be able to sell produce to another business or donate to a food bank lawfully. The existing law specifies that "registration" may require a fee to the health department, as determined by each local jurisdiction, so there may or may not be a fee depending on where the "community food producer" is located. This set of exemptions is especially helpful for charitable organizations such as food banks that accept donations from individuals who are not full-time farmers but rather simply have one or a few fruit trees that provide a large quantity of fruit occasionally.
Although food facilities are already required by law to keep records of the sources of incoming ingredients, AB 234 will specify that food facilities receiving food from community food producers (and gleaners who collect food from multiple community food producers) will have to keep records of the sources of incoming food for 30 days.
While not all problems with the law are fully addressed in AB 234, we are very encouraged by the improvements to the law proposed in AB 234 and we know that some of our partners whose hands are in the dirt growing food and who are directly affected by these laws are eagerly awaiting AB 234's passage. We believe these improvements are a direct result of urban farmers, community gardeners, and small retail businesses voicing their opinions to lawmakers on this topic. It is so important for lawmakers to hear directly from the people who put their hands in the dirt when considering bills related to food! I hope this story will encourage you to call and write to your lawmakers in Sacramento more often - especially if you are involved in local food production or distribution!
The Senate will vote on the bill any day now, and if passed by both Senate and Assembly, the bill will soon arrive at the Governor's desk. The Governor will have until October 11 to decide whether to sign or veto the bill. We will post another update here on our Food News Blog when we know what the Governor has done with AB 234.
Our health and agricultural laws need a lot more work beyond AB 234 to catch up with the local food movement and we look forward to working on more food policy advocacy with you! If you'd like updates on our food enterprise and food policy work in your email inbox, sign up for our newsletter here and be sure to check the box next to Food.
1 Health and Safety Code Section 113980.
2 Health and Safety Code Section 113789 which defines a food facility
3 Health and Safety Code Section 113735 which defines "approved source"
4 Health and Safety Code Section 113752
5 To read AB 1871 (regarding farmers' markets) or AB 224 (regarding CSAs) search for those numbers at http://leginfo.legislature.ca.gov/faces/billSearchClient.xhtml. Make sure you search in the 2013-2014 legislative session (not the current year).
6 Health and Safety Code Section 114376
7 Read the Governor's signing message here: http://gov.ca.gov/docs/AB_1990_Signing_Message.pdf