Freedom for Local Food Producers from State Inspections
Food freedom means freedom from state regulatory oversight. State legislatures are beginning to enact laws exempting food producers from state food safety regulations by passing food freedom or expanding cottage food laws. Food freedom seeks to allow individuals to produce and sell foods without the burden of permits, inspections or licensing requirements.
Wyoming enacted the nation’s first food freedom law (HB 56) in 2015, exempting homemade foods (produced in a private kitchen) from state food safety requirements. In 2017, the North Dakota legislature enacted its own Food Freedom Act and the Maine legislature enacted legislation allowing local jurisdictions to opt out of state food safety requirements (aka food sovereignty).
The Wyoming Food Freedom Act of 2015 exempted many homemade foods (with the exception of some animal products) from licensing, permitting, certification, packaging or labeling regulations, allowing the product to be sold directly from producers to “informed” consumers.
The legislature amended the Food Freedom Act (HB 129) in 2017 to include poultry, rabbit, fish and live animals before slaughter; to clarify which homemade products were specifically exempt from state licensure, inspection and labeling, and to permit state agencies to provide assistance, consultation and inspection services upon request. The law does not distinguish between hazardous and non-hazardous foods, nor does the food product need labeling. A second bill, SB 118, allows for commercial sellers to sell both inspected and uninspected foods as long as the retail space is physically separated.
North Dakota enacted a Food Freedom Act in 2017 (HB 1433) similar to the Wyoming law. It allows for producers of food without a license to sell directly to consumers. While the act doesn’t allow for the sale of most meats and raw dairy products, producers may sell up to 1,000 head of poultry of their own raising, annually. Foods that require refrigeration, such as baked goods containing cream, custard, meringue, cheesecake, pumpkin pie and cream cheese, must be labeled with “[t]his product is made in a home kitchen that is not inspected by the state or local health department.”
Maine’s food sovereignty bill (SB 242), An Act to Recognize Local Control Regarding Food Systems, allows for local governments to adopt food sovereignty laws that exempt food producers from state licensing and inspections of food produced, sold and consumed locally. This exemption would only apply to food produced and sold directly to consumers within the municipality; any food produced in the municipality “intended for wholesale or retail distribution” outside its borders “must be grown, produced or processed in compliance with all applicable state and federal laws, rules and regulations.” SB 242 marks the first time that a state has given regulatory control to municipal governments over food produced and sold locally.
Because this bill would exempt sales of meat from oversight, the U.S. Department of Agriculture (USDA) threatened to remove the state’s authority to inspect meat. The legislature followed up with SB 605, which requires compliance with state and federal food safety laws but allows locals to grant food producers wide latitude regarding food safety.
Former Maine Governor Paul LePage (R) vetoed a similar food freedom bill, stating that the law presents “an illusion that there is no need for food safety training and inspections … Eliminating responsibility for food safety without any requirement for standards equal to known safety tolerance is dangerous to consumers, a risky burden to towns and potentially devastating to food producers who sell hazardous food.”
Donations of Food
The foremost issue regarding food safety for state legislatures in 2018 concerned the donation of food. The 59 bills introduced on this subject led to the enactment of 15 bills in 12 states.
Uncertainties about the procedures to follow for safe donations, in what circumstances food may be donated and the type of foods that can be donated causes concerns. Food donation is not covered in the FDA Food Code, nor does the federal government specify when and in what circumstances food may be donated. In turn, very few states have laws regarding food donation, placing the burden and liability on the donating facility, which discourages businesses from donating food. This is changing as state legislatures learn of the barriers and uncertainties regarding food donation.
Several states looked at limiting the liability of institutions that donate food, while others offered tax credits for food donation. Encouraging schools and other institutions to donate food was popular, as well.
Alaska enacted HB 186, defining that restaurants, hotels and stores may donate food to food banks or charitable organizations without being subject to civil or criminal liability.
California’s SB 557 allows for unused food or food returned by a consumer at schools to be donated to a food bank or other nonprofit charity. AB 1219 expands the state food donation act to allow field gleaners to donate food and authorize food facilities to donate food directly to consumers.
In Illinois, SB 2606 provides that each state agency entering into or maintaining a contract for the purchase of food under the Procurement Code shall adopt a policy that permits the donation of leftover food procured by state funds
The Kentucky Farms to Food Banks Advisory Committee (H 150) law was amended to clarify how often the committee meets. SJR 218 directs state agencies to conduct self-studies to examine practices that contribute to food waste and identify new practices that would reduce food waste and increase food donations to charitable feeding agencies.
Maine’s HB 1054 directs the Department of Environmental Protection to develop and maintain a website on food recovery with a database of guidance documents, model policies, program resources and other educational and technical materials relevant to food recovery and food waste reduction efforts that may be implemented by government entities, counties, municipalities, educational institutions, businesses and the public.
In Maryland, the public can claim a tax credit for the donation of venison to charitable organizations (HB 7; SB 182). Minnesota’s HB 2636 permits local governments to provide funds to community food shelves. Missouri’s HB 1288 provides a tax credit to those who donate food or cash to local homeless shelters or soup kitchens.
New York’s SB 5664 directs the commissioner of Agriculture and Markets to develop guidelines to encourage schools and colleges to donate excess food. In Oklahoma, HB 1875 permits schools to donate food to nonprofit organizations.
In response to the recent hurricanes, Puerto Rico amended its law to allow municipalities to donate goods, foods or public funds if there is a legitimate public purpose (SB 243).
The West Virginia legislature enacted HB 4478, authorizing public schools to distribute excess food to students and others who suffer from food insecurity.
Food Labeling and Edible Cannabis
||Enacted Food Labeling Legislation
||Enacted Edible Cannabis Legislation
||Enacted Food Labeling and Edible Cannabis Legislation
In the United States, food labeling is generally regulated by the Food and Drug Administration (FDA), the Department of Agriculture (USDA), which handles meats and eggs, and the Federal Trade Commission (FTC), which covers imported foods. These federal efforts address food nutrition and calorie counts, meat inspections and many labels found on food. But the federal regime leaves many aspects of food labeling under the authority of the states.
State food labeling laws cover packaging and point-of-purchase advertisements for foods and dietary supplements sold in retail establishments, menus in restaurants and labels on alcoholic beverages. State food labeling also covers claims made about the purity of food products or health benefits. Additional laws and regulations require sellers to describe how foods are prepared or processed, the origin of the ingredients, the nutrients and additives in the foods, and other aspects of the product that are detailed on the packaging or in related marketing efforts.
Regarding date labeling, federal efforts are limited. The FDA does require the date labeling of infant formula, but not for other products. According to the FDA, the agency “does not require food firms to place ‘expired by,’ ‘use by,’ or ‘best by’date on food products;” rather, the food manufacturer must follow its own discretion. Because federal law on food date labeling is limited, states have vast discretion to regulate date labels. Certain states have been active regarding food labeling; in other states, efforts have been limited or non-existent.
A Harvard Food Policy Project survey of the states concluded that 41 states and the District of Columbia require date labels on some food items, while nine states do not require the labels on any foods.
During the 2017-2018 legislative sessions, 46 bills were introduced on food labeling. Massachusetts and New Jersey looked at bills to standardize food date labeling to reduce food waste. New York sought food producers to label whether meat came from cloned animals. And several states reviewed legislation to require the labeling of GMOs in foods.
But of those 46 bills, only eight were enacted or adopted into law. The Alaska legislature adopted a resolution encouraging Congress to require the labeling of GMO fish products (HJR 12). Arkansas adopted a resolution supporting a standard identity for rice (SCR 1).
California enacted AB 954, requiring the state Department of Food and Agriculture to encourage food processors to use uniform terms on food product labels to communicate quality and safety dates. The Food and Agriculture Omnibus bill (AB 933) includes provisions on milk and cream package date requirements.
The Georgia legislature enacted two bills related to food labeling. SB 69 relates to the packaging and labeling of organic products and certifying entities. HB 176 primarily authorizes the Department of Agriculture to enter into agreements with the federal government regarding food safety but also has provisions regarding standards and labeling.
Nebraska amended the Pure Food Act (L 134) to include a provision on source labeling on eggs. South Dakota repealed provisions relating to the labeling requirements for feed, requesting the secretary of the Department of Agriculture to adopt the official definition of feed ingredients pursuant to the federal Food, Drug and Cosmetic Act (HB 1035).
Five bills were enacted regarding the definition and labeling of edible cannabis. California’s AB 133 and SB 1289 defined “edible cannabis product” as “cannabis product that is intended to be used, in whole or in part, for human consumption.”
In Hawaii, HB 2729 addresses labeling requirements for medical marijuana. Maine’s HB 1199 defines an “edible marijuana product” to mean a marijuana product intended to be consumed orally, including, but not limited to, any type of food, drink or pill containing marijuana or marijuana concentrate.
Washington defines a “marijuana-infused edible” to have the same meaning as “marijuana-infused products” as defined in RCW 69.50.101, but limited to products intended for oral consumption (HB 1462).
Food in Schools and Educational Institutions
Food nutrition, food donation, food allergens, farm-to-school bills and other food in schools were popular in 2018, leading to the introduction of 57 bills in 17 states, with 13 becoming enacted in nine.
A majority of the bills concerned the nutrition of the foods being served to students, with requirements to limit sugar, labeling of the number of carbohydrates in school lunches and bills encouraging the eating of healthy food all being introduced. Legislators appeared concerned that students lacked access to healthy, nutritious foods and introduced bills to encourage healthy eating.
Allergens were another concern, with several states introducing bills ensuring that schools list potential allergens in their food. Vending of healthy foods was another concern.
California led in the number of bills enacted on food in schools. AB 691 specifies that almond milk is a nutritious beverage authorized to be sold to students in public schools. AB 841 prohibits schools from advertising food or beverages or participating in corporate incentive programs that provide free or discounted foods that do not comply with nutritional standards. AB 1971 requires charter schools to provide needy students with a nutritious meal at least once a day. SB 557 allows schools to donate food.
Connecticut enacted HB 5452, which requires the Department of Education to draft guidelines for local school districts for the management of students with life-threatening food allergies and glycogen storage disease. In Illinois, HR 790 urges that home economics be brought back into the high school curriculum.
The New Jersey legislature expanded its summer meal program to all school districts (SB 1897). In New York, the Department of Health must post-school cafeteria and kitchen inspection reports on its website (SB 4173). Oklahoma’s HB 1875 permits the donation of school food, as does West Virginia’s HB 4478. Pennsylvania HB 178 requires schools to provide a school meal to every student who requests one unless a parent specifically requests the school to withhold a meal.
Similar to California AB 841, Rhode Island HB 7419 prohibits the advertising of food and beverage products in schools that fail to meet federal nutrition standards.
Nutrition and Food Deserts
Another popular topic was nutrition; 59 bills were introduced regarding foods in schools, food for seniors, or to ensure pregnant women and young children receive nutritious food. The language on the lack of access to healthy foods (i.e., food deserts) was passed in Illinois, Oklahoma and Tennessee.
Arizona added a provision to its appropriations bill that implements a production incentive program for supplemental nutrition program (SNAP or food stamps) recipients to purchase state-grown fruits and vegetables at farmers’ markets, farm stands and mobile markets (SB 1245).
California’s AB 836 authorizes the Department of Public Health to permit automated juice distribution systems that provide access to freshly made vegetable and fruit juices (under the state’s food code such vending devices are illegal). The Missouri legislature established the Senior Farmers Market Nutrition Program to provide low-income seniors with fresh, state-grown produce (HB 1625).
New York amended its Public Health law allowing WIC vendors to sell specialty formula for infants under its SNAP program (AB 379). North Carolina HB 357 expanded the ability of qualified nutrition professionals to practice in the state.
The Illinois legislature requires the Department of Public Health to identify food deserts in the state and provide information about issues regarding these deserts (HB 3157). Oklahoma’s SB 506 creates the Healthy Food Financing Act, which provides state grant funds to ensure underserved communities have access to healthy foods. Tennessee’s SB 2634 directs the state to study food desert relief enterprises that sell fresh food in low income, underserved areas.
Food as Health
Less popular, but an emerging topic, were efforts to view food as a health issue. California adopted the ACR 108 Food as Medicine Program to encourage local jurisdictions to allow health providers to prescribe vegetable and healthy foods to combat the obesity and diabetes epidemic.
Oklahoma SB 749 created the Urban Gardens Grant Act to grow healthy food to be sold onsite or at farmers markets. Pennsylvania designated June as Healthy Living and Healthy Eating Month (HR 365). And West Virginia had the most ambitious food as health law with the enactment of SB 299, which requires medical insurers to cover medically necessary foods for home use when prescribed by a physician.
Milk and Raw Milk
Bills associated with milk and dairy, especially provisions regarding raw (unpasteurized) milk, were enacted in 10 states.
The California legislature sought to ensure that almond milk is allowed to be sold to students in schools as non-dairy milk (AB 691). The state also enacted SB 1039, which defines ultra-filtered milk products.
New Hampshire SB 491 shifts the regulatory responsibilities regarding milk from the Milk Sanitation Board to the Department of Health and Human Services. The bill also requires that milk served at boarding houses be pasteurized. Rhode Island adopted S 247, establishing procedures and standards for the handling and sale of raw milk. Tennessee’s HB 2153 provides that any milk sold in the state may be labeled as “Local Tennessee Milk.”
Utah enacted SB 108, modifying provisions regarding raw milk, allowing the sale of raw milk from a mobile food unit, and allowing for the sale of raw milk free from state regulations under certain circumstances.