Farm Legal Series #5: Swine and Pork Laws, Sow what?
Welcome to the fourth episode in Barn2Door's series in partnership with the Farm to Consumer Legal Defense Fund. FTCLDF is a non-profit organization of lawyers supporting Farmers across the country and helping them navigate the unique legal challenges Farmers face. In this episode, we focus on Pork, and how laws vary across the country, and the resources FTCLDF has to help Farmers sell their products direct-to-consumer.
-
James, Barn2Door: 0:26
Hello, and welcome to the Direct Farm Podcast. we've got a great conversation for you today with the farm to consumer legal defense fund or FTC LDF. They are a nonprofit organization made up of lawyers, serving farmers by protecting, defending, and broadening the rights and viability of independent farmers, artisanal food producers and their consumers. This is the fifth episode in a series of podcasts with the farm to consumer legal defense fund. Each of them highlighted a different farm product and some of the legal challenges. Associated with it today, we're going to be discussing legal issues associated with the cost of operating a pork farm in America. I love good bacon. So I'm really excited about this topic and I buy from a fantastic pork farmer. So look forward to diving in. I'm delighted to welcome back Alexia Kulwiec who is the Executive Director of the farm to consumer legal defense fund. a licensed attorney in Illinois and Wisconsin, and he's practiced law for over 20 years. her experience has inspired her interest in US agriculture, small scale farmers and promoting sustainable farming and protecting the rights of independent food producers across America. Welcome back Alexia. Thank you for making time.
Alexia, FTCLDF: 1:34
Thanks so much for having me. And I just want to mention that our favorite book, my favorite of our bumper stickers is save our bacon. So, and what we really mean is from, you know, too much government regulation, but that's still my favorite, so.
James, Barn2Door: 1:47
I love it. Can I get one of those bumper stickers? You can
Alexia, FTCLDF: 1:49
Absolutely.
James, Barn2Door: 1:50
I'll trade you for a Barn2Door hat, okay.
Alexia, FTCLDF: 1:52
Deal.
James, Barn2Door: 1:53
Yeah, for, for those people listening to the podcast today, who who've never heard one of our prior series Alexia, maybe you can give a quick overview of the farm to consumer legal defense fund. What do you guys do?
Alexia, FTCLDF: 2:04
Yeah, thanks so much. So we are a nonprofit organization and provide legal representation and we also do some work in policy trying to make the policy environment, more favorable to small independent farms who are really challenged by a lot of the regulatory problems that we have. So we provide legal represent. We provide legal consultation pretty much on an unlimited basis. We will represent our members in the regulatory agencies and regulatory schemes. Well, typically we will just generally represent them through the regulatory problem. If there's a citation or an allegation of a violation, we will represent the member through that. We'll also do some litigation. If it involves a government overreach, we may be representing, that's not a guarantee but we'll represent members in court litigation as well. And then, like I say trying to work on changing policy to make the environment better for our members.
James, Barn2Door: 3:04
Well, I think the work that you guys are doing Alexia is just incredible and your collegues servicing farms across all 50 states to help farmers navigate the complexities. And, but oftentimes seems like overburdened regulations. It can be a headache and a real maze for farmers. Right. And so just Correct. me if I'm wrong, it's just $125 a year, right.
Alexia, FTCLDF: 3:25
Correct.
James, Barn2Door: 3:26
Wow, that's amazing what a deal. Right? So for $125 a year, they can get access to you and your colleagues and get counsel to their farm in, in their state. So, well, let's dive into this today, cause I think there's a really good advice you're going to have for us, particularly for farmers who are in pork operations, right? Certainly a big area, a lot of pork farmers all across the country, loves bacon, at least they should. And, and you know, the reality is, is that I think pork farmers have, you know, really kind of gotten a lot of scrutiny of late. We'll dive into that in a few questions. first. Let's specifically talk about selling pork direct to market. I think as we've covered previously in poultry, right? Usually in poultry, there's a lot of variation, state to state, and there's exemption for poultry birds that you can slaughter a certain amount onsite, but you know, chickens are quite small, often, maybe four to five pounds, right. Whereas pigs can actually grow quite large. Well, most states offer an exemption for on-farm processing a poultry. Is there something similar like that, that exists for farmers who are processing pork?
Alexia, FTCLDF: 4:28
Well, yes and no. So it's, there are certain exemptions for pork production, but it's not nearly as generous or helpful, I would say as the poultry production. So when I mean by that is in general, the federal meat inspection act governs the requirements that pork be inspected at a USDA facility or at a state facility that is as strict or. More so than a USDA facility to be able to sell directly to consumers, but there are some exemptions to that. And one is, if you're producing the pork, say for your own family under the personal exemption and then what's one exemption is what they call custom slaughter exemption. And what that means is where the farmer or the producer may sell a live animal or a share on the live animal. And then that is brought to a local custom processor for slaughter and processing for the owner to take their own meat away from the processing. And for that to take place, the USDA inspection facility and the state inspection facility not have to
James, Barn2Door: 5:38
Okay. Yeah. And we'll get into a little bit how some of the nuances of how you do that, right? Cause there's some ways, you know, some legal maneuvering you need to take in order to make that a reality to your knowledge, you know, is selling pork direct to market expressly prohibited in any states at all. Outside of those processes?
Alexia, FTCLDF: 5:54
The direct to market, label is a little bit dicey. And what I mean by that is some places you have to use a state facility to inspect slaughter and process the food, but you can then bring it back to your farm or ranch for sale. Right? So I kind of feel like there are a couple of different things that come into play here and one may be zoning and one might be local ordinances. The big one is what are the rules regarding inspection, slaughter and processing. And then there may be some kind of business licensing, depending on how you're doing it. If you're doing what I just said, and you take pork, for example, to a USDA facility, and you bring it back to your farm and you are selling directly to the consumer, there may also be requirements like a warehousing license, right? Some states might have something that's like a food establishment license, even though all you're doing is selling that meat. That's from your local processor, that's in your freezer to your consumer. Some states or townships might require that to be an establishment needing a food establishment license.
James, Barn2Door: 7:00
Got it. Well, let's, let's start with USDA. Cause that sounds like it's probably the simplest, Right. So, cause if you're a pork farmer and you're taking your animal to slaughter at a USDA facility, quote unquote the highest grade facility at that point, that's going to give you the flexibility provided you have all the appropriate business licenses to pretty sell to anyone, right? Including wholesale across state lines and or to consumer. Provided you have the proper business licenses. Correct?
Alexia, FTCLDF: 7:27
Correct. And it's only inspection or slaughter and processing at a USDA facility that will allow interstate sales. So that is a really important point. But if your meat has gone through a USDA inspection facility yeah. For the most part, as long as you have the business licenses that might be required depending on your locale, that you should be fine.
James, Barn2Door: 7:50
So if I want a bacon subscription or a pork subscription and I'm across state lines, and you're going to ship it through the U S mail, you better be using a USDA inspector, particularly for using the mail, because now you're going to be subject to us law, right? It's not like somebody coming across the state lines to pick it up in your state. You're actually shipping it through the mail across state lines,
Alexia, FTCLDF: 8:11
Correct?
James, Barn2Door: 8:12
nuanced, but very important details. So let's talk a little bit about this state inspected facility. So my understanding now is that if you're a pork farmer and you are raising your animals and you take them to slaughter and a state inspection facility, what are the limitations or constructs of who I can sell that to interest?
Alexia, FTCLDF: 8:32
Yeah. Well, I mean, you kind of explain just mentioned it's the most important confines, right? Is that because you've used a state processing facility rather than federal, you are limited to selling that to consumers in your state, right? So you can sell it directly from your farm. Again, you might need some kind of other licensing. You typically can sell it at a farmer's market. Again, you may need a business license, but you cannot sell it across state lines. And for the most part you won't be selling it in a retail establishment that engages in interstate commerce. In other words, if that store could be shipping foods from one place to another, you can't sell it to them for that purpose.
James, Barn2Door: 9:14
Got it. know I've talked with a couple of compliance officers from certain states and because obviously there's some density for farms around certain state lines and many times they may have buyers across the state line. Not very far away, it could just be a few miles for that matter. Correct me if I'm wrong, but at least this compliance officer shared with me is that you could sell that product online. You could sell it to them over the phone provided you can document that they came into your state and picked it up themselves. If they pick it up and then take it across state lines, you know, your hands are clean, but you need to have some sort of documentation to prove it.
Alexia, FTCLDF: 9:50
Right. Exactly. So if I was just going to say, if you're only talking a matter of miles, literally, and we see this in the Northeast, right? People crossing state lines in particular all the time. You have to sell your product the state in which you're producing the owner then does with the product is completely up to them. So I could drive into another state, pick up my meat and then leave. You know, that's fine. The sale took place in the state in which it was produced. you should be fine. You might need records in case somebody questions the sale. But that's totally legitimate.
James, Barn2Door: 10:21
Yeah, we we've discussed this issue at length with different compliance officers. Cause obviously with Barn2Door, we track delivery and we track pick up so we can automate, you know, like if people are buying it, you can automate, the receipts to prove that certain products were picked up in certain locations by given customers. And oftentimes we'll see people cause you can still sell over the internet across state lines. It's just that you have to prove that to make the payments. You just have to prove that they came into your state to pick it up. Right. Which is, which is a key thing. Let's talk a little bit about the nuances. Custom slaughter houses. Right? So, cause this is where you're getting some nuances around kind of the notion of meat shares. Right. So let's, let's dive into this a little bit more. So if I'm in a state and I don't, perhaps I've just got really challenged with getting access to a state or USDA processor, I just can't get access to them because there's just, they're fully booked. And or maybe I'm just doing a small quantity but I've got people in my church or people I know from school who would love to buy my bacon. Right. They see how well care for my hogs and they see that they're pasture raised. And for all I know, maybe all they're eating is hazelnuts right. So I'm producing high end hog right. So, you know, how can I, how can I structure, you know, a share agreement where they could take some right or ownership in that where they, you know, how, how does that work again? Can you explain that for our listeners? Because I know this is complicated for some people to understand.
Alexia, FTCLDF: 11:41
Yeah, sure. And thank you for that. And I also just want to say we've seen a real increase in this. And we want to help folks with this. You know, our food system in the United States has been vulnerable for quite some time. I think when we saw processing plants shut down in COVID it really highlighted the problem. And so consumers want to purchase from local farmers that they know but it can be extraordinarily difficult for a farmer to get an appointment at a USDA facility or a state processing facility, particularly if their volume is very small right, the facilities are still going to want to do higher volume clientele. So, it's not that farmers are being difficult, not wanting their products to be inspected at a USDA facility it's that they're literally hundreds of miles away and they can't get appointments. Right. So anyway, just my little soap box, as far as custom slaughter facility. These are facilities that have to meet certain federal regulatory requirements, right? So you still have sanitation requirements in place, like where the sink is and how clean your equipment is. And that kind of thing. The difference in a custom slaughter facility is that there is not a inspector on site for each and every slaughter and processing of an animal. That's really the main difference. The way to use custom slaughter facilities as a producer get products to consumers is to sell animal or a share in a live animal, even a share in a live herd. Then the new owner of that share of an animal, the farmer can bring the animal to the custom slaughter facility. On behalf of that new owner, processor can then process the meat and the consumer is getting product from their own of an animal. So it is not a sale that would otherwise be violating the law. And so that's, that's really the way that I'm seeing people use custom slaughter is purchase selling live animals, share in a live animal or share in a live herd. Custom slaughter then is processing for the consumer who has now purchased part of a part of a live animal. And the shares have really been key too, because not many consumers really want like an entire, 40 pounds of a hog, right.
James, Barn2Door: 13:59
Yeah.
Alexia, FTCLDF: 13:59
You know, and that's difficult for people and during COVID I know there was a run on like bigger freezers, people couldn't even buy them.
James, Barn2Door: 14:07
Yeah, well, less than 5% of Americans even own a chest freezer. Right. So. if you look at the average freezer in a home, you know, the average freezer in the home can only hold about 20 pounds max,
Alexia, FTCLDF: 14:18
Yeah.
James, Barn2Door: 14:18
can't hold that much space.
Alexia, FTCLDF: 14:20
Yeah.
James, Barn2Door: 14:21
People fail to realize that a third of Americans live alone. Another third of Americans just live with two people, right? It's only two thirds. If only two, only one third of Americans live like with a group of three or more people. So, you know, actually these smaller herd shares will actually expand the market of people who can purchase from you. So if you've got 10 you know, 10 hogs that, you know are each 400 pounds now, you don't want to just sell a herd share agreement to 10 families. It's just, you know, you're going to, that's going to be a really hard sell, but if you could expand that and you could expand that out to 50 families, right? Maybe it's 80 families, so each of them are getting an eighth of a pig. That's much more doable. Right? So in terms of size, by the time they actually, you know, do the hanging weight and get the animal processed. , talk to us a little bit about like, so if I'm a farm to consumer defense fund member, you guys actually will help me set a herd share agreement up. Right. Help me understand what the what's that process look like, because I imagine it's got to vary state to state.
Alexia, FTCLDF: 15:18
Yeah, it absolutely varies state to state. I would say so typically, first of all, there is a way to have shares in an animal that's like a one-time deal. In which case we would, you know, just help with a bill of sale and other and help the member have the proper receipts, et cetera. But very often we are drafting what we are calling meat share, or meat herd share agreements in which the producer is selling a share of a herd. And then the consumer is entering into some kind of an agreement that, has the producer caring for the animal, feeding, maintaining doing vet service, that kind of thing until it is slaughtered at which point the consumer then can pick up meat products from their share of that herd.
James, Barn2Door: 16:02
Now for my own curiosity, is there an opportunity to become a member of a herd share agreement on a subscription basis? Cause like if I'm breeding pigs, right. Can I buy into our herd and the ongoing outcomes of that herd? Because I know we have a lot of farmers today who do sell subscription agreements or subscription boxes to pasture proteins. And it's very lucrative, right? People sign up for, you know, an $80 a box a month. That's a thousand dollars a year from one consumer to get maybe 20 pounds of beef or 20 pounds of pork each month. Is there something similar that we could do with our herd share agreement where you could, you know, buy into our herd of pigs that are continuing to breed?
Alexia, FTCLDF: 16:42
Yeah. If there's something similar, it's not exactly the same. And this is what I would say about that. You can certainly structure a meat share agreement to include a breeding herd. Where more will be introduced into the herd. That's really up to the producer. I mean, they may want to do that. They may not. Right. What I want to emphasize is the big difference is it's not a subscription such as I'll get pounds of pork product in a given month, because when you buy into a herd share, you're actually a part owner, of the animal or the herd. And so, particularly when you're talking a herd and there's potential for breeding, a new animals coming into the herd production is not given equal amount each month. You have a share in this herd, but that you're not saying I'm guaranteeing this amount of product, because it depends on, you know, the size of the animal or when they decide to slaughter. And there can be differences in terms of their production looks like. It's almost like you don't know what's going to be in the CSA box, right. This is what we were able to produce this month, have at it. Right. Here's your share of that?
James, Barn2Door: 17:53
There is some variability in it, right? It's not like broiler chickens, where they pretty precise. They know, Hey, the broilers are going to be between four and five pounds or four and four and a half pounds. These pigs could vary quite a bit, right. In terms of size.
Alexia, FTCLDF: 18:05
It's, a real important thing to recognize because I think from both producers and from consumers, there's sometimes confusion on that, but you're actually getting a share of this hurt legally, and we help with those documents to make sure that that's how it's done. So that's going to require just by its nature, some variability. Yeah.
James, Barn2Door: 18:24
Well, that is absolutely fantastic. What a fantastic service of the farm to consumer legal defense fund to actually help farmers be able to navigate these hurdles and to do so specific to each state which a farm operates. So, again, a really great benefit of that membership. Let's shift gears, and talk a little bit about. Kind of like some of the market perceptions of the treatment of pigs and, and kind of pork practices. Right. I think, and I think that there's been a lot of attention that's been drawn to you know, the treatment in the poultry industry to pasture birds and making sure they get adequate air on those types of things. Are you seeing the same trends around the humane treatment of pigs? I know I'm a big fan of pasture pigs and my wife and I, we both have a subscription to a pasture pig producer here in the Northwest. Hogstead Family Farms, a fantastic farm, great plug for them. Although I don't think you'll be able to sign up because they're completely sold out. Great, great producer of some of the best bacon ever had in my life. But, you know, I think, you know, there's growing awareness amongst the general consumers today around, what's happening with pigs and these large commodity and conventional productions. Are you seeing this continue this to gain traction, you know, do you think this is something that buyers expect to see implemented as some representations around the humane treatment of these animals?
Alexia, FTCLDF: 19:40
Yeah, absolutely. I mean, I think that you know, people do have the sense of you know, the pork version of CAFOs, right? Here in the Midwest, we hear a lot about some of these hog farms in Iowa and how bad those conditions are for the animals. And what I think is that consumers recognize that, or there's an increasing recognition by consumers of that reality, and they still want the great products like you described, right? The best bacon they can get, but they realized that the way to do that is to find a farmer that they trust, know that the animal has is out in pasture and is grazing and know that they have been raised in a more humane way. I think one of the hesitations a lot of our members have and using some of the inspection facilities is that they raise their animals very well, right. They raise them. They're well taken care of. They're not in a cage where they can't turn around or a pen where they can't turn around. and then they have a good, healthy animal which produces the best product, but then they have to put them on a truck and drive them 400 miles away to bring them to an inspection facility.
James, Barn2Door: 20:46
Yeah.
Alexia, FTCLDF: 20:46
That's really problematic. Right. So, I, I do think that we're seeing consumer awareness of welfare issues you do see you know, there is some regulation in terms of the humane slaughter both pork and beef. But as far as some of the large feeding lots and that kind of thing, it's still really problematic. And I do think that we're seeing an increase in the recognition of that. And regulations have not really caught up with that, right? So
James, Barn2Door: 21:12
Yep.
Alexia, FTCLDF: 21:12
Difficult. You've got consumers wanting this local sustainably produced food including animal welfare standards. But then it's very hard for them to meet that regulatory system in order to provide the products to the consumer. And that's where I think that animal shares are really a great way to be able to take care of things. We are also, of course, always following some potential policy changes that could make that easier at the federal level, the PRIME Act would allow sales out of custom facilities. That would really be a game changer for a lot of these smaller producers.
James, Barn2Door: 21:47
Yeah, I know it's a really sad to see some of the practices that happen in large conventional operations, where they're cutting the tails off of pigs and all these other things. And they're unable to turn around. It's just really sad. And I certainly know, you know, to your point, it's not just a humane raising and care for the pig, but it's also the humane harvesting of them. Right. You know, happy pig, happy bacon. And, you know, obviously you want to make sure that the, you know, at the time of slaughter that the animal is well-respected and cared for, so that, you know, again, it's not releasing all those toxins into the meat.
Alexia, FTCLDF: 22:17
Right
James, Barn2Door: 22:17
well, let's talk a little bit about interstate sales, right. Because again, we have a lot of folks who are selling pork and you know, the one thing I love about pork is as a really consistent growth. Consistent harvesting cycle, which is really attractive for farmers in terms of building recurring revenue, but folks that are in, you know, kind of areas where there might be you know, a good degree of density, of population. I think of you know, the Northeast or up in kind of the upper Midwest, a lot of times that might involve, you know, trying to move things across state lines. Right. so can we talk a little bit about, you know, some of the variations in policies where there might have in terms of impacts on selling across state lines? We talked about it from our processing perspective, but is there also limitations on the ability to sell across state lines? If, if for whatever reason, you know, it, assuming you use a proper processing facilities and you've, you've met all those requirements, is there a limitation there or is it just become a tax issue?
Alexia, FTCLDF: 23:11
So presuming you need to use the USDA inspection facility to sell across state lines.
James, Barn2Door: 23:16
Correct.
Alexia, FTCLDF: 23:17
If, if you're doing that, I mean, you could bring me products across the state line for sale to a customer or consumer across the state line. Certainly I think there'd be tax ramifications and there might be additional business licenses that could be necessary. But yes, you can do that. If you're using a state facility, you cannot and accustomed slaughter facility those products are supposed to be for intrastate use. But again, a consumer could show up at that facility, get the meat product from their own share of their animal and take it across state line wherever they want.
James, Barn2Door: 23:49
Got it, but if you're going to use the mail or if you're actually delivering our cross state lines, you have to be using a USDA facility. And the other question would be, is like, if you're using a USDA facility you don't need to do, a herd share agreement, is that correct? You should be able to just sell?
Alexia, FTCLDF: 24:04
Yeah the issue with the herd share agreements is where you are not processing at a USDA or even maybe a state facility. You can't go to a custom slaughter facility as a producer, have the animal processed and sell the meat products. Custom processing is for the owners of the animal. So the solution to that is to sell the live animal ahead of time or shares of a live animal. And I do want to point out if I can, that states vary on this. For example, the USDA has no limitations on how many people can own an animal. But a couple of states do .Right. They limit it to say for around four people. And so, there's at least one, I think probably two states where I don't think even think that the sale of the live animal will work. And then there's three states now that have specifically made it crystal clear that you could do these meat share agreements. I think it's legal in other places. But the three states in which that the legislature has taken affirmative steps to make it crystal clear, what you need in a meat share agreement is Colorado, Nebraska, and Wyoming.
James, Barn2Door: 25:12
Oh, that's a great point, actually, because your point, there's some ambiguity,
Alexia, FTCLDF: 25:16
Yeah,
James, Barn2Door: 25:16
States who made it crystal clear and other states have expressly prohibited or limited, I should say, on the number of people who could participate. think if anything, this is a great plug again, for the wealth of work and knowledge that the farm to consumer legal defense fund can offer farmers who are listening today literally for only $125. You get Alexia and all of her colleagues who support farmers across all 50 states to get specific regulatory guidance and legal counsel. So you can navigate the complexities of these types of issues. What else can you tell us a little bit about the, you know, of being a member of the farm to consumer legal defense . Fund? What does that look like? And then lastly, I want to talk about your membership drive, but just to talk about membership generally.
Alexia, FTCLDF: 25:57
Thanks. So in general being a member and we do regular updates on things in the industry that will be of interest, but the real primary benefits are the legal consultations. If you do want to operate under a contracts between the producer and the consumer, like these meat share agreements, we will draft those agreements for you. We do do some litigation, like I said, representing membership in government agency regulations. We also do some policy work on behalf of our members and something we're very proud of is that we do in fact, have a 24 hour hotline for folks. We see government regulators often, surprise inspections or members haven't found legal counsel and they have some legal documents that they have to show up to a hearing for example. so we can get back to you really quickly a member that is facing some kind of a legal problem.
James, Barn2Door: 26:52
Well, that's fantastic. And then lastly, can you talk a little bit more about your membership drive? You guys are kicking that off on February 1st, and that goes through March 15th. What are the goals of the drive? And, and, you know, is there any additional, like supplemental benefits? If I sign up as a farmer during this.
Alexia, FTCLDF: 27:09
Sure. Thank you. Yes. So we are holding a membership drive from February 1st through March 15th of this year. We'll be kicking it off in a couple of days. One thing I'll say is that in general, we have offered some members-only resources, as we've been holding quarterly members only webinars. We have some other documents with information available to members. Those will be incurred. Those are being increased. So as soon as somebody joins, they'll have access to prior recordings, they'll have access to other helpful information that can help them plan their farm businesses, for example. But really the main sort of sweetener. So to speak that we have going right now is that we are partnering with Stockton grass farmer, and they are offering to our current members, but new members that joined between February one and February and March 15th very sharp, like 48, 50 and 60% discount rates on their publication. And on certain courses that they offer to producers that really are very well-received by farmers in terms of say soil health or soil management or grazing tips, that kind of thing. Real hands on courses that Stockman grass farmer is offering. And I guess that, I'll also just say a lot of them are now online and they want to offer that to farm to consumer legal defense fund members. So folks that might be. Smaller wanting to grow or just starting out. Some of those courses really would be invaluable for $125. your annual membership with us.
James, Barn2Door: 28:42
That is fantastic. Alexia the work tune in next time to hear from Alexia winner, we'll continue to dive into the nuances laws and the cost associated with farming in America. We are really thrilled to be partnering with the farmer to consumer legal defense fund and encourage you to go to farmtoconsumer.org. That's farm to consumer dot O R G where you can sign up and become a member and learn more about the wealth of benefits you can gain by by. Being a member of their network more about Barn2Door including all the access to free resources and best practices for your farm, go to Barn2Door.com/resourcesrces, and you can access that information freely at any time. you again for tuning in, and we look forward to seeing you next week on the direct farm podcast.
Alexia, FTCLDF: 29:26
Thank you.