Nonprofit Sues Overzealous Texas Regulators To Protect Small Farmers

Texas is ignoring federal law to harass small farms.

Last month, the nonprofit Farm and Ranch Freedom Alliance (FARFA)—a Texas nonprofit that advocates on behalf of independent farmers, ranchers, livestock owners, consumers, and others—sued the state's agriculture department over the agency's overzealous and unconstitutional enforcement of federal food-safety regulations.

The suit, filed in Texas state court, alleges state regulators have sought impermissibly to introduce and enforce stricter rules than are contained in or allowed under the federal Food Safety Modernization Act (FSMA)—specifically rules that apply to growing produce, including fruits and vegetables. FARFA is asking the court for an injunction to halt enforcement of the state rules.

When President Barack Obama signed FSMA into law early in 2011, the final version contained an exemption for small farmers known as the Tester amendment, named after Sen. Jon Tester (D–Mont.), who sought to ensure many of the nation's smallest farmers wouldn't be subject to the mountains of paperwork, mandatory inspections, and other requirements baked into the law.

The focus of FARFA's lawsuit is the very small farms that Congress exempted from being subject to FSMA regulations. Under FSMA, farms generating less than $25,000 in annual revenue from the sale of produce alone and larger direct-marketing farms selling less than $500,000 of all foods (including, but not limited to, produce) are exempt from the key provisions of the law. This is because, as the FARFA suit notes, "without the exemption and exclusion for small farms, the cost of FSMA compliance would literally cause farms to go out of business."

"With the Tester Amendment to FSMA, Congress recognized an important principle: it matters who is growing our food and how it gets from the producer to the consumer," says Judith McGeary, the attorney who leads FARFA, in an email to me this week. (I serve on the board of another nonprofit, the Farm-to-Consumer Legal Defense Fund, alongside McGeary.) "Yet, under the state regulations, the Texas Department of Agriculture is going to spend significant government resources pursuing small, direct-marketing farmers despite Congress' clear exemption for these producers."

FARFA's lawsuit alleges chiefly that the new regulations allow the agency "to violate the constitutional rights of small-scale Texas farmers." The new rules, FARFA details, create a registration requirement for farms that should be exempt from such requirements under federal law. The rules also grant Texas officials a "right of entry" to "conduct inspections" on exempt farms. Perhaps most disturbing, FARFA points out that Texas regulators have granted themselves a nebulous, near-divine authority to inspect exempt farms and halt sales from those farms should they identify "egregious conditions" on a farm where they shouldn't be in the first place. Violations trigger steep fines for small farmers.

FSMA is a terrible law, and complaints such as McGeary's have followed the law since it was just a wee bill. I've detailed in countless columns and in my 2016 book Biting the Hands that Feed Us: How Fewer, Smarter Laws Would Make Our Food System More Sustainable, why FSMA—which was supported by a nightmare coalition of food-safety absolutists and big business interests—likely won't make food safer but inevitably will hurt small farmers. 

For example, I noted in a 2013 column (and flesh out further in my book) that FSMA was much more likely to eradicate small farmers than it was to eliminate foodborne illness. FSMA, I wrote, would crush many small farmers while—according to the FDA's own data—"decreas[ing] foodborne illness by somewhere between zero and two percentage points."

When the FDA began FSMA enforcement last year, I wrote that the law "will put many small farmers out of business."

FARFA is fighting to make sure that doesn't happen.

"The lawsuit seeks to protect small farmers from unwarranted burdens, and to promote the sensible use of our taxpayer dollars," McGeary tells me. "Focus where the problems are, and let our small farms continue to produce healthy, safe food for their communities without having to deal with government paperwork burdens and inspections."

Notably, though FARFA's lawsuit is challenging only Texas rules, the suit could have much broader implications. According to FARFA, Texas regulators hope to become a national model of sorts whereby other states might copy their heavy-handed approach to FSMA enforcement. Hopefully, FARFA's lawsuit will put a halt to Texas's push to invite unwelcome bureaucrats onto farms in Texas and across the country.