by Enrico Villamaino
For the sixth November since 2015, the University of Maryland’s Agriculture Law Education Initiative (ALEI) hosted its annual Agricultural and Environmental Law Conference.
Sponsored by the Maryland Farm Bureau and MidAtlantic Farm Credit, the event brought together agricultural professionals, attorneys, educators, environmentalists, farmers, policymakers and students to discuss the complex intersection of environmental regulation and agriculture. The series of workshops allowed attendees to exchange ideas and information on current legal topics of interest.
The “Developing Topics in Agricultural, Environmental and Food Law” session was presented by Kelly Nuckolls, a policy specialist at the National Sustainable Agriculture Coalition (NSAC). Nuckolls, who earned her Master of Laws degree in Agricultural and Food Law from the University of Arkansas, advocates for federal policies related to sustainable agriculture, including food safety and food labeling.
Wanting to address the topics that NSAC’s members had brought to her attention, Nuckolls focused on issues that affect small to mid-sized farms.
She began with discussion concerning the Food Safety Modernization Act (FSMA). The act has given the FDA new authorities to regulate the way foods are grown, harvested and processed to combat foodborne illnesses. Small farmers are concerned that state agencies might be attempting to use FSMA to improperly inspect their facilities.
“There is an ongoing lawsuit related to the produce safety rule,” she explained. The rule establishes science-based minimum standards for the safe growing, harvesting, packing and holding of fruits and vegetables. The case in question, “Farm and Ranch Freedom Alliance vs. Texas Department of Agriculture,” involves an “exempt” farm that the Texas Department of Agriculture sought to inspect under authority delegated to them by the FDA regarding the produce safety rule. “There are a number of ways a farmer can be exempt from the rule. The farm in question was fully exempt because they were under the $27,000 amount of sales. However, this lawsuit also pertains to the ‘qualified exemption’ farmers are able to achieve under FSMA, which is when they sell less than $560,000, adjusted for inflation, for their past three year average sales.” The lawsuit calls out the State of Texas’s attempt to require exempt farms to submit to inspection and certification requirements. Also in contention is the meaning of the nebulous term “egregious,” as the Texas authorities cited their right under FSMA to inspect a farm in response to an “egregious condition.”
A great deal of money is at stake for smaller farmers. The penalties for refusing to submit to a legitimate inspection are $500 for the first day, $1,000 for the second day and $1,500 for every subsequent day.
“With this case, the farms are claiming a couple of different issues,” Nuckolls said. “In particular that the [state] departments of agriculture lack the authority to make these inspections. There are two constitutional law claims. There’s a claim that property owners have a right to privacy under the Fourth Amendment – that includes the right to be free from unreasonable and warrantless searches. And then they’re also claiming some due process clause issues with the 14th Amendment. They’re saying that the definition of ‘egregious’ is so vague that an ordinary person would not understand what the law prohibits – as well as the fact that the documents, the pre-assessment review, the biannual verification of qualified exempt farms is not clear, and so it too is unconstitutionally vague.” As this case is ongoing, Nuckolls and her organization will continue to monitor events so that they may better inform small farmers of their rights.
Nuckolls acknowledged the high level of concern and the numerous questions from her organization’s members regarding COVID-19 and its continued effect on the small to midsize farming community. “There are really two options still available to farmers that have experienced losses due to COVID-19. The Coronavirus Food Assistance Program (CFAP) direct payments are still available until December 11. And then there’s also the Small Business Administration’s (SBA) Economic Injury Disaster Loans (EIDL), which are still available through the end of the year. These include advances of up to $10,000 that do not need to be repaid.”
Farmers eligible for CFAP payments experienced coronavirus-related losses sometime between April 1 and Aug. 31, 2020. Qualified agricultural businesses in all U.S. states and territories are currently eligible to apply for EIDL relief. Qualified ag businesses have 500 or fewer employees and include those businesses engaged in the production of food and fiber, ranching and raising of livestock, aquaculture and all other farming and ag-related industries as defined by the SBA.
Nuckolls strongly encouraged eligible farmers to take advantage of these programs as soon as possible, as their continuation is uncertain. “We’re really not sure how much longer these programs will be there. It’s better to act now. The last thing you want to do is leave money on the table.”