Local Health Departments Have To Start Learning From Local Farmers and Markets

A promising new law will give agricultural communities in Massachusetts more say in local public-health rules that apply to them and impact their property and livelihoods.

A promising new law will give agricultural communities in Massachusetts more say in local public-health rules that apply to them and impact their property and livelihoods.

The law, An Act Providing for Agricultural Commission Input on Municipal Board of Health Regulations, which went on the books last month, might be the first of its kind in this country. It is designed to "giv[e] farmers, farm stands, farmers markets and others involved in agriculture a say in the development of local health regulations."

The law requires that a local health department—prior to adopting any new regulations that would apply to farmers markets, farms, or backyard livestock or gardening—provide a local agricultural commission with a copy of the proposed rules. The new law also creates a 45-day review window, during which the local agricultural commission can hold public hearings and critique the proposed health regulations.

(Local agricultural commissions are quite common in Massachusetts. A 2017 post by the Massachusetts Association of Agricultural Commissions indicates there were nearly 175 local agricultural commissions in Massachusetts at the time.)

This new Massachusetts law echoes a drum I've been beating for years. As I've long noted, there's a great deal of tension between expanding local food options and crafting new and stricter food-safety regulations. 

Many people today want more local food options. Others want tougher food regulations. Some people want both. But that latter wish is nothing more than a pipe dream. In my book, Biting the Hands that Feed Us: How Fewer, Smarter Laws Would Make Our Food System More Sustainable, I highlight this problem while using an example from—of all places—Massachusetts. In that example, a small, certified organic farm in Massachusetts was forced to stop selling bagged lettuce in a nearby town. That's because the latter's health department considered the lettuce to be a processed food, which would subject it to additional regulations. The local health department apparently determined the lettuce was a "processed" food because the farm cut the stalk off the lettuce before bagging it. 

"If we'd just sold the lettuce with the stalk on, we wouldn't have a problem," the farm's owner told me. "But because we cut off the stalk, it was considered 'processed.'"

As I explain in the book, lettuce stalks are bitter and are usually cut from the lettuce sold at farmers markets, grocers, or anywhere else before sale. "Most consumers never even see [a lettuce stalk], because most farmers cut it off, knowing that consumers won't eat it," I explain.

The "processed" lettuce rule is exactly the sort of inane and backwards regulation the new Massachusetts law is designed to eliminate—thanks to the input of farmers—before it ever gets on the books.

"Local boards of health make consequential decisions that impact the health of our communities and local industries," says State Sen. Adam Hinds (D–Pittsfield), who co-sponsored the new law, in an email to me last week. "They should have a say in the matter of these decisions. This legislation means boards of health will now be obliged to hear from their local agricultural commissions when issues might impact farming and agriculture."

Others have similar hopes for the new law.

"We hope that the new law will prompt conversations between local health regulators and farmers," says Winton Pitcoff, director of the Massachusetts Food System Collaborative, which promotes local foods in the state and supported the new law, in an email to me this week. "Too often those relationships are antagonistic, but the reality is that they can be mutually supportive when regulators understand better what it takes for farms to remain sustainable while still keeping consumers safe, and when farmers have an opportunity to educate regulators, most of whom are under-resourced and so often don't have the capacity to thoughtfully develop appropriate regulations."

"Few BOH [health departments] have any expertise in agriculture, but with the rising interest in backyard livestock, farmers markets and small farms—many BOH were putting out regulations—often they made no sense," says Brad Mitchell, deputy executive director of the Massachusetts Farm Bureau Federation, which also supported the new law, in an email to me this week. "Our goal in bringing this to the legislature was to try to ensure that any ag related regulations that BOH put out were done… with the benefit of some knowledge of agriculture. Ag Commissions were created to provide such expertise, but too often BOHs were not consulting with them. This fixes that."

While Hinds tells me he's unaware of any opposition to the bill, saying its passage was a "pretty seamless" process, others I spoke with did raise a concern. Two colleagues I spoke with about the law, each of whom knows farming and the law and hails from outside Massachusetts, raised concerns that a law like this one will work better in Massachusetts than it might in a traditional "Big Ag" state such as Iowa, North Dakota, or Texas. The people I spoke with worried "Big Ag" might dominate or co-opt local agricultural commission membership in states where large farms are more common.

Mitchell suggests those concerns are misplaced.

"Conceptually it will work anywhere," Mitchell says of the new Massachusetts law. "The concept is very simple—some of those[] involved in the rulemaking process should have some expertise in the activity on which the rules regulate.. It would be fine if ag comms were comprised of 'big ag' folks. They are advisory only and there is knowledge in this group. The issue we actually have with ag comm[ission]s in [Massachusetts] is that some have been co-opted by folks who have read a couple Michael Pollan books and think they know it all."

As I noted earlier, this Massachusetts law may be the first of its kind in this country. Given the challenges that local health departments around the country pose to local food producers, I hope it's a smashing success. And I hope other states around the country move to adopt similar protections for farmers, farmers markets, and backyard gardeners and livestock owners. Doing so would help locally produced food to flourish.