Is There Such a Thing as Private Food?

The following is an excerpt from David E. Gumpert’s Life, Liberty, and the Pursuit of Food Rights (Chelsea Green, 2013) and is reprinted with permission of the publisher. Learn more about the book here.

At 9:40 on the morning of February 4, 2010, two FDA agents in an SUV pulled up the long driveway of Daniel Allgyer’s farm in Kinzers, Pennsylvania. The agents, Joshua Schafer and Deborah Haney, were from the FDA’s Delaware office to do an inspection, they told Allgyer.

Allgyer objected. “This is a private farm. I do not sell anything to the public.”

One of the agents replied, “You sell milk to the public, therefore we have jurisdiction.” When Allgyer said he wasn’t going to cooperate, the agents said he would be reported to their superiors for his “refusal to have an investigation,” as Allgyer recalls it.

Less than three months later, the agents followed through on their threat. At 5:00 a.m. on April 20th, two FDA agents showed up again—this time accompanied by two U.S. Marshals and a Pennsylvania state trooper. As if to justify the accompanying armed officers, one of the FDA agents took a photo of the signs on several farm building doors: Warning: no trespassing . . . Attn: government employees, inspectors, and others: this is a private area, not a public area. Warning to ALL state and federal officials and informants: you must have an appointment and permission from the owner to enter this land/farm/property or building.

As Allgyer recalled the situation: “They drove past my two Private Property signs, up to where my coolers were, with their headlights shining right on them. They all got out of their vehicles—five men altogether—with big bright flashlights they were shining all around. My wife and family were still asleep. When they couldn’t find anybody, they prepared to knock on the door of my darkened house. Just before they got to the house I stepped out of the barn and hollered at them, then they came up to me and introduced themselves. Two were from the FDA, agent Joshua C. Schafer who had been there in February, and another [David Pearce]. They showed me identification, but I was too flustered to ask for their cards. I remember being told that two were deputy U.S. Marshals and one a state trooper.

“They started asking me questions right away. They handed me a paper and I didn’t realize what it was. Agent Joshua C. Schafer told me they were there to do a ‘routine inspection.’ At 5:00 in the morning, I wondered to myself. ‘Do you have a warrant?’ I asked, and one of them, a marshal or the state policeman, said, ‘You’ve got it in your hand, buddy.’

“I asked, ‘What is the warrant about?’ Schafer responded, ‘We have credible evidence that you are involved in interstate commerce.’

“They wanted me to answer some questions, my name, middle initial, last name, wanted to know how many cows we have on the farm. I answered those questions and some more. Finally, I got over my initial shock and said I would not be answering any more questions. They said OK, we’ll get on with the ‘inspection.’”

The FDA’s report of the inspection, written by investigator Schafer, pretty much jibes with Allgyer’s. “After answering questions stating that the firm is a sole proprietorship, he has owned the farm for two years, and he has 31 dairy cows that are milked two times per day, Mr. Allgyer wanted to know why we were asking these questions. I told Mr. Allgyer these questions are part of a routine inspection. Mr. Allgyer then stated that he will not answer any more questions.” The Schafer inspection report says that during the inspection “Mr. Allgyer alternated between going into his dairy barn and standing in the driveway watching us perform our inspection.”

One of the inspection’s primary goals, based on twenty-eight pages of photos that accompanied the written inspection report, appeared to be to confirm the bare-bones labeling of food products. One photo showing half-gallon and gallon containers of milk was labeled: “Products resembling milk. Photo 1 is of unlabeled containers and photo 2 is of containers labeled Goat.”

The farmer’s objection and the federal agents’ highlighting of his minimal labeling illustrate differing perceptions of what constitutes “private food.” Allgyer was supplying individual members of the food club with products produced on his farm. There were no wholesale distributors and supermarkets or mass-market retailers like Wal-Mart involved between him and the end consumers. He packaged each member’s food separately and sent the packages directly from his farm to the individual buyers.

In both his view and that of Grassfed on the Hill members, there was no need for oversight from the USDA, the FDA, or state and local public health and agriculture departments. These regulators, under the authority of federal food and drug legislation first signed into law a century earlier (and added to in subsequent years), enforce regulations governing food’s processing and labeling: pasteurization of milk, inspection of meat slaughtering and butchering, refrigeration and washing of eggs, the aging of cheese. But this official oversight is intended for commercially available products, not—in the view of food club members and farmers—foods that individuals produce and sell or trade to friends, neighbors, and acquaintances.

The plastic and glass jugs of yogurt, kefir, cream cheese, goat milk, sauerkraut, and cultured butter that Daniel Allgyer’s farm supplied to members of Grassfed on the Hill were hand-labeled in black marker: Kefir, Cream Cheese, Yogurt, Cultured Butter, Sauerkraut, Goat (for the goat milk), and so forth. After all, there were no wholesalers or distributors who needed to know the exact source of the food. The food never came close to any retail store’s shelves. The food club members didn’t need or want ingredient labels beyond the handwritten identification given that there were no thickeners, sweeteners, preservatives, or artificial colors added to any of it. In the event Allgyer needed to supplement his farm’s products with milk or butter from a neighboring Amish farm, he alerted Karine Bouis-Towe and Liz Reitzig, the administrators of the club, and they included a note in e-mails to members that a particular product came from a neighbor of Allgyer.

What was it about privately distributed food, direct from an Amish farm, that aroused so much attention from federal regulators that they thought it necessary to conduct an investigation and recruit armed escorts for the investigators? After all, we weren’t that far removed from a time when most food in the United States was distributed the way Daniel Allgyer was doing it, direct from farms to the individuals who ate it.

For much of human history, well into the nineteenth century, food was a private matter. People raised their own food and traded for what they didn’t produce themselves. In the United States, as the country became more urbanized, people purchased more of their food, often from farm stores and stands on the outskirts of towns and cities or from small specialty shops—butchers, fish stores, bakeries, fruit and vegetable sellers—who obtained it directly from producers. In suburban areas in the 1940s and 1950s, even into the 1970s in some areas, farmers would deliver. Peddlers came around with meat and eggs. And there was the ever-present milkman.

The advent of huge supermarkets in the 1950s and 1960s, with convenient locations and vast selections of foods, began to supplant the butchers, fish stores, and peddlers. It also heralded the formalization of a regulated “public” commercial system of food distribution. This new system of clean and modern food outlets presented consumers with bins of glistening vegetables and fruits, neatly cut meat and fish in wrapped plastic trays, and milk in plastic or waxed cardboard containers. The public system has continued to expand—chains of 7-Elevens, huge Wal-Marts on highways outside towns large and small, and fast-food franchises crowding strip malls across the country.

In the public system’s expansion, farming has become increasingly removed from the output process of the nation’s food. More and more of the nation’s farms have become essentially subcontractors to huge corporations that dictate the feed, breed, housing, and life span for chickens, pigs, and cattle. The corporations pay fixed prices that often allow the farmer little or no profit. These contractor-farmers have ever less negotiating leeway since the Big Ag corporations behind the contracts have consolidated into only a few producers. These corporations have effectively taken control of the meat business in this country.

According to an analysis in Forbes by two academics from the University of Kansas and Northern Michigan University, “Just four companies provide us with 79 percent of our beef, 65 percent of our pork, and 57 percent of our poultry. So, no matter what kind of meat we have for dinner, most likely it comes from the same handful of companies: Tyson Foods, JBS, Cargill, Smithfield Foods. You can never decide which bacon to bring home? Armour, Eckrich, Farmland, Gwaltney, John Morrell, Smithfield—all owned by Smithfield Foods.

“Virtually all the chickens sold in the United States are grown under production contracts to a handful of companies, who own the birds from egg to supermarket. Tyson Foods, the largest U.S. poultry company, contracts with about 6,000 of what it calls family farmers to raise its chickens. They are expected to grow birds to slaughter weight under strict company guidelines as quickly and as cheaply as possible. If Tyson is not satisfied, it may cancel their contracts with little notice and even less recourse, leaving them under a mountain of debt for their otherwise useless chicken houses.”

Countering these trends, some private means of distribution have continued to survive, and even thrive—church suppers, bake sales, block parties, lemonade stands. More recently, field-to-fork farm dinners, urban farmers markets, community-supported agriculture (CSA), and small cooperatives and food clubs like Grassfed on the Hill have become popular. Traditional or new systems, they all involve either farmers or other producers selling food directly to consumers or an organization distributing food directly to participants of a particular community, like members of a church or parents of a school’s students. They are also decidedly noncommercial and generally avoid advertising beyond the particular confines of the community—in other words, they aren’t presented to the general public.

But something happened, beginning in this century, to change the seeming independence of the private food sector and foretell the targeting of Daniel Allgyer. Both before and since the inspection of his farm, other small private food endeavors have also come under regulatory scrutiny and enforcement procedures.

One case notable for its force and threat of violence involved the Manna Storehouse food club in Ohio. The family-run club, organized as a private outlet, had been providing grass-fed beef, lamb, turkey, eggs, flour, and other items from local farms to dozens of neighbors and friends who were members beginning in 2000. On December 1, 2008, officers from the Lorain County Sheriff’s Office, dressed in full tactical armor, arrived at the home of the club’s owners in LaGrange (outside Cleveland) with Lorain County Health Department and Ohio Department of Agriculture inspectors. With weapons drawn and trained on one owner, Jacqueline Stowers, her in-laws, and eight small children Stowers was homeschooling, the officers herded the family into a home living room and kept them under armed guard for about seven hours. The agriculture and health inspectors executed a search warrant, taking cell phones, three computers, business records, and a year’s worth of frozen meat—mostly lamb from the Stowerses’ own herd. Jacqueline’s husband, John Stowers, was out running errands when the raiding party arrived.

The food club’s offense? Failure to obtain a retail license. Jacqueline Stowers told me that at the time she had received notification a year earlier that she needed a license, and when she wrote back to question it based on Manna Storehouse being a private membership organization, she didn’t receive a response—until the raiding party showed up.

The search warrant used by the armed officers was similar to that used for drug dealers, giving the agents permission to confiscate anything on the premises. The affidavit authorizing the warrant cited the Stowerses for operating a retail food establishment without a license, according to the Farm-to-Consumer Legal Defense Fund. It filed suit against Ohio officials on behalf of the Stowerses, arguing that the search and seizure had been unlawful and the Stowerses denied due process and equal protection. After a number of hearings, a county judge in early 2010 rejected the arguments, ruling that Manna Storehouse was subject to the state’s retail licensing rules because it was a profit-making operation; an appeals court in 2011 upheld the ruling.

Another incident occurred in July 2011, when San Francisco regulators shut down the Underground Market, which was launched in 2009 as a private market by an organization known as ForageSF, with vendors peddling foods ranging from foraged seaweed to Belgian waffles. Iso Rabins, the founder, explained the market’s rationale and growth in a statement to supporters: “I started the Underground Market in 2009 as a reaction to the high bar of entry that has been created to start a food business, something that I experienced personally. Starting in a house in the Mission with seven vendors and 150 eaters, the market has grown to feed over 50,000 people and help over 400 vendors get their start.”

That ended on July 11, 2011, when the city’s health department “served us a cease and desist letter, stating they no longer considered the market a private event.” Rabins said the private organization was actually launched at the suggestion of local health department officials, who were trying to help organizers circumnavigate the regulations and presumably figured it would stay small. “Everyone who walks through the door is a member who knows they are eating un-certified food, so technically the health department doesn’t have to be involved. They have decided (apparently with pressure from the state level) that the market is no longer a private event, and can therefore not continue as it has.” (The market did open for a “final” market December 22, 2012.)

Within three months of the San Francisco market’s 2011 shutdown, Quail Hollow Farm in Nevada came under public health scrutiny on the evening it was serving its first-ever farm-to-fork dinner to dozens of area customers. In a letter to the Farm-to-Consumer Legal Defense Fund, farm owner Laura Bledsoe described how her carefully planned evening was nearly ruined: “The evening was everything I had dreamed and hoped it would be. The weather was perfect, the farm was filled with friends and guests roaming around talking about organic, sustainable farming practices. . . . Our guests were excited to spend an evening together. The food was prepared exquisitely. The long dinner table, under the direction of dear friends, was absolutely stunningly beautiful. The music was superb. The stars were bright and life was really good.

“And then, . . . for a few moments, it felt like the rug was pulled out from underneath us and my wonderful world came crashing down. As guests were mingling, finishing tours of the farm, and while the first course of the meal was being prepared and ready to be sent out, a Southern Nevada Health District employee came for an inspection.

“Because this was a gathering of people invited to our farm for dinner, I had no idea that the Health Department would become involved. I received a phone call from them two days before the event informing me that because this was a ‘public event’ (I would like to know what is the definition of ‘public’ and ‘private’) we would be required to apply for a ‘special use permit.’” Despite Bledsoe’s conviction that the event was private, and outside the authority of public health officials, she decided to be pragmatic and completed all the paperwork.

Unfortunately, the health inspector arrived right as the guests were mingling. It didn’t take long for the inspector to declare “our food unfit for consumption and demand that we call off the event,” for various “safety” reasons—for example, an absence of labels and receipts and the fact that it wasn’t USDA certified, all explainable because most of it was produced on the Bledsoe farm. The inspector rejected Bledsoe’s explanations, threatening to call the police and escort guests off the property. Bledsoe concluded that “the only way to keep our guests on the property was to destroy the food.”

“I can’t tell you how sick to my stomach I was watching that first dish of mint lamb meatballs hit the bottom of the unsanitized trash can.

“Here we were with guests who had paid in advance and had come from long distances away anticipating a wonderful dining experience, waiting for dinner while we were behind the kitchen curtain throwing it away! I know of the hours and labor that went into the preparation of that food.

“We asked the inspector if we could save the food for a private family event that we were having the next day. (A personal family choice to use our own food.) We were denied and she was insulted that we would even consider endangering our family’s health. I assured her that I had complete faith and trust in Giovanni our chef and the food that was prepared (obviously, or I wouldn’t be wanting to serve it to our guests).

“I then asked, if we couldn’t feed the food to our ‘public guests’ or even to our private family, then at least let us feed it to our pigs . . . ”

The result: “another negative response.”

At this point, Bledsoe was moving from being upset to being angry. “So the food that was raised here on our farm and selected and gathered from familiar local sources, cooked and prepared with skill and love, was even unfit to feed to my pigs!?! Who gave them the right to tell me what I feed my animals?”

“To add insult to injury, we were ordered to pour bleach on it,” making the food unfit for even animals to consume.

Bledsoe finally decided to call a lawyer from the Farm-to-Consumer Legal Defense Fund, who advised her to ask the health inspector if she had a search warrant or an arrest warrant. When it turned out she had neither, Bledsoe ordered her to leave the property, which she did. The inspector later returned with local police, who not only declined to issue any kind of citation, but asked the health inspector to leave when she couldn’t come up with an explanation of what law had been violated.

“The wind taken out of the inspector’s sails, Gio and his crew got cookin’. It just so happened that we had a cooled trailer full of vegetables ready to be taken to market the following day. An employee hooked on to the trailer and backed it up right next to the kitchen. Our interns who were there to greet and serve now got to work with lamp oil and began harvesting anew. Knives were chopping, pots of pasta and rice from our food storage were steaming, our bonfire was now turned into a grill, and literal miracles were happening before our eyes!”

She then explained the situation to guests and “offered anyone interested a full refund, and told them that if they chose to stay their dinner was now literally being prepared fresh, as [in] ‘just now being harvested.’ The reaction of our guests was the most sobering and inspirational experience of the evening. In an instant we were bonded together. They were, of course, outraged at the lack of choice they were given in their meal.”

Things improved quickly with the health inspector now out of the way. “Before long we were seated at the beautiful table and the most incredible dishes began coming forth. It was ‘loaves and fishes’ appearing before our very eyes! We broke bread together, we laughed, we talked, we shared stories, we came together in the most marvelous way.”

The hard-earned happy ending Bledsoe experienced is more the exception than the rule, though. Even bake sales and lemonade stands aren’t off-limits to the increasingly aggressive public health inspectors. In early 2012, a San Francisco public health inspector shut down a bake sale being held in Golden Gate Park to raise funds for a twenty-two-student nursery school.

In Hopkinton, Massachusetts, health inspectors shut down a lemonade stand set up in a homeowner’s driveway at the start of the 2012 Boston Marathon. The stand had become an annual event, selling not only lemonade but banana bread and brownies. Proceeds went to charity—but no matter, the stand wasn’t licensed and had to go. The Hopkinton run-in was one of a growing number involving lemonade stands—enough to spark creation of Lemonade Freedom Day in 2011. “In the recent past, bureaucrats and law enforcers have shut down lemonade stands for not having permits or licenses,” organizers said on their website. At that time, “thousands of people across the world participated in Lemonade Freedom Day to show these bureaucrats and law enforcers that they could not shut down kids’ lemonade stands.” So many participated that the organizers of Lemonade Freedom Day expanded their reach by teaming up with a group of raw milk proponents for the 2012 event.

What is behind the growing tension around food—more specifically, around privately distributed food that had long been off the regulatory radar? Part of it has to do with growing concerns about “safety”—not just food safety but an atmosphere stemming from the terrorist attacks on 9/11.

Immediately following the attacks, our government rounded up terrorist suspects from around the world and threw them into prison in Guantanamo Bay, Cuba. Authorities came up with a new term for these individuals—“enemy combatants”—and denied them the rights normally accorded those accused of violating American laws. In The Rights of the People: How Our Search for Safety Invades Our Liberties, a sobering assessment of how constitutional protections eroded after 9/11, Pulitzer Prize–winning reporter David K. Shipler states that “for over two centuries . . . America has enjoyed and endured an intriguing fluidity within the walls of its constitutional ideals. From time to time, courts and legislatures have enlarged or curtailed the scope of liberty . . . especially during times of national stress and fear, they have narrowed and compromised rights that are explicitly delineated by the Constitution. Later, to its credit, the country has looked back on the violations with shame.”