Food Freedom vs. Regulatory Busybodies

From the legalization of cottage foods to the rise of right-to-farm laws, the future of food freedom is looking brighter at the state level.


While national stories like the multi-pronged assault on energy drinks and the FDA's proposed Food Safety Modernization Act rules rightly grab headlines—and often my attention—it's perhaps too easy to overlook the fact that much of what's good and bad in the area of food law and policy is taking place in our backyards (and front yards, something I noted here last summer).

Cottage food laws, state laws permitting people to sell some foods prepared in the home, are one such development. In California, the state's new cottage food law (which I wrote about previously here) appears to be a huge hit just a month into its existence.

The law has already helped formerly illicit sellers to enter the legal food market, a fact revealed during a recent cottage foods panel chaired by KCRW food columnist Evan Kleiman.

Cottage food laws aren't perfect—as I noted here—but when done right they can help budding culinary entrepreneurs escape often crushing regulations faced by restaurants and other food sellers.

State laws permitting cottage foods are quickly catching up with the demand for looser regulations. Nearly three-dozen states now have cottage food laws in place. And advocates in other states—including Minnesota and Alabama—are pushing to add their states to the growing list.

While cottage food laws benefit home cooks and their customers, another important development at the state level is the ongoing struggle for food freedom for small agricultural producers. Significant recent developments are centered in Virginia—a state boasting both lots of lawyers and lots of farmers.

Perhaps the most noteworthy development in the state is Virginia's proposed farm freedom law—also known as the Boneta Bill. The bill is named for Virginia farmer Martha Boneta, who was fined last summer for having hosted a birthday party for her friend's pre-teen daughter on her own farm without first obtaining a permit.

As Katherine Mangu-Ward noted in an August post at Hit & Run, local zoning officers fined Boneta $5,000 for that alleged infraction and added on another $5,000 for "advertising a pumpkin carving."

Disgusted by the clear assault on Boneta's rights as a person and farmer, supporters drafted a farm freedom bill that would expand the definition of the state's existing Right to Farm Law—including providing farmers like Boneta with a private right of action against busybody regulators and "assert[ing] that any ordinance directed at persons, property, or activity on land that is zoned agricultural or silvicultural that seeks to restrict free speech or the right to assembly, among other rights, is null and void."

"Burdensome rules, regulations and inspection requirements—many of which are indecipherable except to lawyers and bureaucrats—now impede the ability of health-conscious individuals and small farmers to raise and produce their own food free of corporate contaminants," says John W. Whitehead, constitutional attorney and president of the nonprofit Rutherford Institute, which is based in Charlottesville, Virginia, in an email to me this week.

"That growing numbers of home gardeners and small farmers are being prosecuted for such inane 'crimes' as keeping chickens or making cheese speaks to a growing problem in America today, namely, the overcriminalization and overregulation of a process that once was at the heart of America's self-sufficiency—the ability to cultivate one's own food, locally and sustainably," says Whitehead.

Meanwhile, in another case championed by the Rutherford Institute, a Virginia homeowner is facing criminal charges for raising chickens in her yard. In a case now before the Commonwealth's Supreme Court, Rutherford lawyers argue on behalf of Virginia Beach resident Tracy Gugal-Okroy that their client should not be facing a possible $1,000 fine for violating a zoning ordinance prohibiting the keeping of poultry on private property.

"Our constitutional rights have been buried in a thicket of federal, state and local regulations," says Pete Kennedy, attorney and head of the nonprofit Farm-to-Consumer Legal Defense Fund, which is also based in Virginia and supports the Boneta Bill, in an email to me. "The Farm Freedom bill[ would] restore our right to obtain the food of our choice from the source of our choice."

Whether in the form of cottage foods or farm freedom, it appears that the state of things is looking up.