Food Freedom

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.

NEXT: The Broader Meaning of the Trad-Cons' New War on Porn

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  1. A few illegal sub-humans sneak across the border, reports on it, might even hint that USA border laws are draconian and a waste of money, and hordes of fake libertarians turn out in droves, to post outraged comments.

    Government Almighty shits on small farmers, to protect the interests of Big Food and the FDA’s fiefdoms, and you hear scarcely a peep.

    Trump’s endless trade wars shit on farmers, so Trump passes out more billions in Government Almighty welfare for farmers, which is mostly going to RICH folks and even NON-farmers!
    Stop Lavishing Money on Rich Farmers Who Don’t Need It

    (Some of it goes to modern share-cropper-owners).

    And we don’t hear a peep from the fake libertarians…

    1. So I guess you’re a climate denier? It’s imperative that we shovel money to the blessed corn farmers to keep producing ethanol for the sake of the planet and you’re against saving the planet? When Congress shirks their duty to appropriate the appropriate tribute to our blessed farmers, how else are we to properly worship these saints except that the executive branch create the necessary legislation the legislative branch has unconstitutionally obstructed? You’re a mean, low person begrudging the farmers their measly tens of billions of dollars in bailouts and their tens of billions in subsidies when they’re doing so much to keep food on your table.

      1. “…ethanol for the sake of the planet…”

        Makes me want to retch! What a WASTE! I’d rather drink it!

        Planets don’t get buzzed, people do! (Can we get this slogan to catch on?)

        1. You know what’s even better than ethanol Hihn? Methanol! You can drink 10x as much of it and you don’t even get a hangover! Try it!

          1. Very fully, demented asshole! How many people have you killed or sickened with your asshole, evil advice lately? Did ANY of them make you happy? Quit being an evil asshole, and you might feel better!

      2. Under the 18th Amendment and Volstead act demand for glucose corn sugar to feed into bootleg continuous stills kept corn prices nice and high. After the final stage of repeal corn was basically unsubsidized by government as organizer of “crime.”

    2. The average Baylen Linnekin article is lucky to get 10 posts since they go up on the weekends you delusional psychotic old brainless chunk of pig shit.

      1. There’s also the fact that there are few pro regulatory actors here. Sqrsly is too dumb to understand what the immigration debate is, ie about the insanity of an open border welfare state.

        1. Says the liar who spends TONS of time slamming illegal sub-humans, and VERY little criticizing endless welfare payments… Certainly including welfare payments justified by farmers in a world of hurts, “justified” due to Trump’s stupid trade wars!

          Readers, beware! Do not be deceived by JesseAZ! JesseAZ does NOT believe that LIES are bad in ANY way! Only ACTIONS matter, ethically or morally! See
          “Words are words dumbfuck. Actions are where morals and ethics lie.”, says JesseAZ. When confronted with offers of hush money, illegal commands (from a commanding military officer), offers of murder for hire, libel, slander, lies in court, yelling “fire” in a crowded theater, inciting riots, fighting words, forged signatures, false representations concerning products or services for sale… these are all “merely” cases of “using words”. Just like the Evil One (AKA “Father of Lies”), Jesse says lies are all A-OK and utterly harmless! So do NOT believe ANYTHING that you hear from JesseAZ!

          Also according to the same source, JesseAZ is TOTALLY on board with dictatorship (presumably so long as it is an “R” dictator that we are talking of).
          With reference to Trump, JesseAZ says…
          “He is not constitutionally bound on any actions he performed.”

          I say again, this is important…
          ““He is not constitutionally bound on any actions he performed.”
          We need a BRILLIANTLY persuasive new movie from JesseAZ to “Wake Up, America!”, to flesh out the concept that “The Triumph of The Will of The Trump, Trumps All”! Including the USA Constitution. In fact, USA military personnel should start swearing allegiance to Trump, NOT to some stupid, moldering old piece of paper!
          Previous Powerful People have blazed a path for us to follow here, slackers!!!

    3. You’re mad there is a dearth of comments 25 minutes after an article is posted on a saturday? Yeap. Sqrsly is retarded.

  2. Businesses are the enemy! They make immoral profits while we peasants toil under their corporate yoke! We are slaves! To exist me must by thing from them, and before doing so we must work for them! We are all wage slaves! No one should have to work for basic rights like food, shelter, clothing, education, medical care, child care, internet, wifi, cable, or anything else for that matter! Make the rich pay for it! So fuck these farms! They’re trying to become slavers! Nip them in the bud! Down with all businesses! Free government shit for everyone! Power to the people!

    1. Rant much?

  3. 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.

    How about modernizing with a red-flag aspect, whereby farms wouldn’t even have to be inspected to halt sales? “We received a complaint that your produce may potentially harm you or others.”

    1. This guy gets it.

  4. I realize it’s the weekend, but I think Reason should post several columns today and tomorrow keeping us updated on World War 3. Which Orange Hitler literally started by killing that guy.

      1. Orange-mango?

        1. “*Children’s* ice cream, Mandrake!”

      2. When the world burns, only orange authoritarians will have ice cream.

    1. Yep, another dick POTUS launches an illegal war against a country that never attacked us and it’s the communists ( that are marching while people that bitch and bitch and bitch about the government sit on their hands.

    2. I’m left wondering… is there any instance of government coercion and violence that you are actually against? Taxes on the 1% probably. So unfair!

  5. Another shitty law passed by a Democrat House and US Senate and then signed by Barack Hussein Obama into law on Jan 4, 2011.

    Luckily, this Democrat majority in Congress was lost in 2012 and never regained.

  6. If Texas is zealous about restricting one type of business it can only be motivated by demands of other business.

    Texas state motto: Finest Crony Capitalism Money Can Buy.

    1. Is this projection from a californian?

    2. True facts. The enormous cartels cultivated by national socialist policies can by now afford to buy up judges and politicians from Amarillo to Iraan. The Nixon law still subsidizes non-Libertarian campaigns, so the initiation of force is still the law of the land 49 years later.

    3. Actually its the FSMA = Finest Crony Capitalism Money Can Buy

      Federal Farm-Size favoritism is entirely unconstitutional legislation.

      “Because the Constitution does not grant the federal government any authority with regards to regulation of food and drugs, the Tenth Amendment explicitly leaves that power with the individual states.”

      Food Standards are entirely a Texas State legislators job unless that food crosses state lines. The federal has no authority to be setting inner-state food regulations.

  7. Feds shit on farmers… Fish-farmers this time…
    Genetically engineered salmon: An update on how they are growing in Albany

    Luddites and Feds have been throwing up roadblock after roadblock for about 20 years now I think…

    From there…

    Murkowski included a provision within the Agriculture Appropriations bill for fiscal year 2020 to postpone the introduction of GE salmon to the U.S. market until a consumer label comprehension study is completed, to determine the effectiveness of USDA’s new labeling guidelines for bioengineered foods, the senator’s spokesperson, Karina Borger, told The Star Press earlier this month.

    That bill advanced out of the full Appropriations Committee unanimously and then passed in the full Senate at the end of October as part of a funding package.

  8. “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.”

    “The focus of FARFA’s lawsuit is the very small farms that Congress exempted from being subject to FSMA regulations.”

    Federal Exemptions (if they were even Constitutional in the first place – as this isn’t) doesn’t Supremacy Exempt State Governments. It’s rather an absurd claim. I have a federal tax exemption so the State cannot tax me <<< psycho-claim!!

    1. That was my initial thought also. More info is really needed. Are the Texas Regulators trying to enforce specific FSMA regulations and standards onto the farms without Texas having passed their own or are they stating that since they are exempt from national regulations and standards, Texas feels the need to monitor them with Texas regulations and laws before the food reaches the Texas public? If it is the former, then that is wrong. If it is the latter then what legitimate complaint do they have? The city of Houston reviews my engineering plans the same as they do for larger engineering firms. I don’t have a pass just because I work at a small firm. However, if they forced me to design to federal highway standards on non-federal roads without a city or state law requiring it, then I would have a complaint.

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