What You’ll Learn About Here

  • Importance of Label and Advertising in Communicating with Consumers
  • Rules Regulating Claims Made About Foods
  • Eco-labeling and Food
  • Developing and Protecting Special Marketing and Labeling Claims
  • Organic Food Production and Direct Farm Marketing

This chapter includes a detailed discussion of the various laws and regulations which control how food can be labeled and advertised.  It covers topics ranging from rules on organic production to issues of when something is “locally grown.”  Controls on what terms can be used to describe food when it is marketed, the growth in the use of “eco-labels” to describe how food is produced, and restrictions on the use of signs for farm businesses are discussed.

The Importance of Labels and Advertising in Communicating Information to Consumers

Deciding how to describe or advertise the crops and foods you produce can be very important to the success of your direct farm marketing operation.  Your choices will be determined by what you raise and how you want to market your products.  These issues will help determine who it is you want to communicate with, and what it is you want to say about what you are selling, such as any special traits or features which might be important to consumers.  As more consumers become concerned about what foods they eat, they are interested in information about how their food is produced.  Is it organic?, is it natural?, is it genetically modified?, are examples of some of the questions consumers might have.

When it comes to the issue of how to describe what you raise, farmers have an increasing number of options, but also face an increasing number of regulations.  The choices for farmers may range from using such common terms as “locally grown” or “home grown,” to more descriptive terms such as “chemical free” or “organic.”  Most producers are aware that to use certain descriptive terms – such as “organically grown” there are either state or private requirements which must be satisfied.   But you need to be aware that federal food labeling laws, such as those administered by the Food and Drug Administration (FDA), and by the USDA in the case of meat, may restrict your ability to use certain terms, such as  “all natural” or to make health claims for a product.  Farmers who process foods should also be aware that the FDA’s nutritional labeling requirements may apply in some circumstances, especially when large quantities are involved.

In addition to these examples of regulations on the use of labels and advertising,  there are many other examples of laws or regulations which may control what you can say about the products you grow and market.  For example, several states regulate the use of the term “locally grown.”  A recent proposal from the USDA for national organic production rules may be of great importance to many direct marketers.  The USDA’s proposed rules include a provision designed to prevent the use of terms such as “grown without chemicals” or “humanely raised” on the theory these imply the products were organically produced and might confuse consumers.

Other examples of government restrictions on the use of food labels come from state or local laws regulating the use of appellations – such as the Georgia law protecting use of the name “Vidalia onion.”  In some situations there are private efforts to create labels or certificates describing food products, with related programs to control the usage of these labels.  The recent development of “Integrated Pest Management” or IPM labels in the Northeast are a good example.

In this chapter, these issues of labeling and advertising food products and others are discussed.  The purpose of this discussion is to illustrate how laws and regulations might affect how you promote and market your products.  The basic questions to consider when thinking about this topic include:

  • which terms or descriptions can be freely used;
  • how are some terms or descriptions regulated or prohibited;
  • must certain things be revealed, e.g. country of origin; and
  • can special or new terms be created and protected from use by others.

Considering Rules Regulating Claims Made About Foods

One main consideration relating to what you can or can not say about the foods you produce will be the manner in which you market them.  If you are selling them directly from your farm, such as through a CSA or a road-side stand, there may be few practical restrictions on what you can say about your foods.  This is true in large part because these forms of direct marketing do not involve placing the products in commerce, at least not in the sense that consumers buy them from retailers or other third-parties who did not produce them. Instead, the marketing relation you create is direct.  Consumers have come to you at your farm because they are interested in what you have to sell. In many situations they may also be interested in learning more from you about what it is you are selling or how it was produced. On the other hand, if the sales are occurring in some type of more public marketplace, such as a farmers market, or if the sales are being made to commercial consumers, such as stores which will resell the products, then there may be other considerations about what you can claim for the foods. The following discussion illustrates some examples of these issues.

Q. Are there legal controls on using terms like 'locally grown'?
One important advantage direct farm marketers can have in the marketplace is the ability to sell fresh locally grown produce at the peak of ripeness.  For this reason it can be very frustrating to see other market outlets advertising produce as “locally grown” when that may not be the case. In most states however, use of terms like “home grown”, “locally grown”, “native produce”, and similar phrases are not controlled by law.  Instead, the truthfulness of such claims depends on the honesty of marketers and on the curiosity of consumers.

When this Legal Guide was first published in 1999, only Maine and Vermont were exceptions to this rule. The list now includes Connecticut, Maine, Maryland, New Hampshire, Vermont, and Washington. Maine has longest history of protecting the use of such terms.  The Maine law, set out below, was enacted in 1981.

Maine Law on Using the Term “Locally Grown”

The Maine law concerning use of terms like locally grown, [Title 7, Chap. 101§443-A], is titled “Native produce.”  It provides:

1. Prohibition.  Farm produce sold or offered for sale within the State may not be labeled or advertised as “native,” “native-grown,” “locally grown” or by a similar designation, unless that product was actually grown in the State.

2. Penalty.  Violation of subsection 1 is a civil violation punishable by a fine of not less than $200 nor more than $300.

3. Burden of proof.  Repealed.

4. Enforcement.  This section is enforced by the Department of Agriculture, Food and Rural Resources.

5. Enforcement; prima facie evidence. The commissioner or an agent of the commissioner may request proof of the origin of farm produce for the purpose of enforcing this section. Failure to provide written documentation or other reasonable proof upon request as to the origin of the produce offered for sale is prima facie evidence that a person is in violation of this section.

Q. Are there restrictions on how I can label or describe my products when I sell them at a farmers market?
The answer to this depends on several things.  First, the rules of the farmers market may contain provisions concerning how producers can describe their foods. One of the most common rules concerns requiring proof of certification before products can be labeled as “organic”.  But other issues, such as the use of other descriptive terms to describe products, can be an issue.  The following is the New York Greenmarket rule concerning labeling and advertising:
7.  Organic and Other Labeling

All growers/producers claiming organic status or advertising produce or other products as organic must be certified by their State chapter of NOFA, OCIA or Demeter Society.

Verbal or written declarations of organic status not certified or verified as per above will result in suspension or termination from Greenmarket.  (See “Violations of Other Greenmarket Rules”)  Written declarations regarding pesticide use which cannot be certified such as “Unsprayed”, “Pesticide free”, or “Low spray” are prohibited.  Verbal or written promotion of produce as “unsprayed”, “lowspray”, etc. is prohibited.  Consumer queries regarding your farming practices must be answered factually.

How you describe the products you sell at a farmers market also depends on what you are selling.  If you are marketing meat, poultry or dairy products, which are subject to state or federal inspection, those regulations may control the use of certain terms, for example “free-range” chickens.  These issues are discussed in more detail in Chapter 12.

An example of a federal regulation, which indirectly regulates what can be sold at farmers markets, is the USDA rules for the Farmers Market Nutrition Program (FMNP). The FMNP provides WIC participants with additional food assistance benefits that can only be used to purchase eligible foods at farmers’ markets or farmstands. The rules for the program [7 CFR § 248.2] establish eligible foods as, “fresh, nutritious, unprepared, locally grown fruits, vegetables and herbs for local consumption.” The rules provide this definition for locally grown:

State agencies shall consider locally grown to mean produce grown within the State borders but may also define it to include areas in neighboring states adjacent to its borders. Under no circumstances can produce grown outside of the United States and its territories be considered eligible foods.

For more information about the WIC FMNP see Chapter Six.

Eight Steps to Consider When Making Special Claims
1. Identify the unique traits of your products or production practices for which consumers might pay more.

2. Select terms or descriptive names which will reflect those traits.

3. Determine whether any state or federal regulations control or prohibit the use of the terms you identify.

4. Determine if any private certification system, or other form of trademark claim might limit your ability to use these names.

5. Identify what minimum labeling terms or information are required under federal or state law (see the discussion in Chap. 11).

6. Consider whether any certification or eco-labeling programs exist for your products and determine if your operation may be eligible.

7. Include the labels or descriptive terms you claim in all your marketing and promotion efforts.

8. Maintain records and other evidence which document your compliance with the claims being used for the food product, e.g. “home-grown” or chemical free.

Eco-labeling and Food

American consumers are increasingly indicating their desire to buy foods with special traits or values.  The rapid growth in demand for organically grown foods illustrates the potential marketing opportunities which may be available to producers who produce and market the types of fresh, wholesome foods consumers desire.  One method of promoting and marketing foods now emerging in the U.S. may have special attraction for direct farm marketers.  It is known as “eco-labeling” and the following discussion helps explain what this movement is about and how it might create opportunities for farmers.

Q. What is 'eco-labeling' and why is it developing?
Eco-labeling is the term used to describe the marketing of products to consumers in ways which inform them about special environmental attributes of the product.  For example, if you are concerned about the loss of the rain forest you might want to buy wood products which are certified as being raised on plantations.  Perhaps the most common form of “eco-labeling” is the use of recycled materials.  Many consumers make a special point of buying goods marked as having been made from recycled materials, out of the belief that doing so is helping protect the environment.  This means that eco-labeling is really an effort to use the market place to support production and manufacturing practices which are environmentally friendly.  By identifying these practices and labeling products in the marketplace, consumers who care about these issues can use their buying power to promote interests they support.

Eco-labeling is a relatively recent development which has been applied primarily to manufactured goods.  However in recent years there has been an increased interest in using eco-labeling techniques in the marketing of food products. For an example of an effort to market locally grown beef, see the sidebar.

Q. How does eco-labeling relate to the production and marketing of food?
There are many aspects of food production and processing which have associated with them significant environmental or health issues.  Consider such examples as the use of farm chemicals, water quality protection, animal welfare and food safety.  Many of these environmental or health concerns can be addressed and even minimized depending on how foods are produced or processed.  Two of the best examples of “eco-label” terms relating to food already in use in the marketplace are “free-range” chickens and “organic” foods.  The “free-range” label focuses on the idea the birds were not confined but instead were allowed to run free outside in the fresh air.  “Organic” foods means the grower did not use synthetic pesticides or fertilizers when raising the foods and the farm was certified by a state or private agency.  In this regard, the whole organic food movement is a form of eco-labeling.

When you think about it, you can see that there are a great many eco-label type claims which can be associated with food production.  Each of the different areas of concern relating to health, food safety, animal welfare, and environmental protection provide producers – or groups interested in these issues – opportunities for communicating with consumers.  The hope is that if producers know there are consumers who are willing to buy these products, perhaps paying more for them, then more producers will adopt the practices required to qualify for use of the “eco-label”.

Q. What is the potential value of eco-labeling for my farm?
The potential benefit of eco-labeling to a direct farm marketing operation, or to any business, is in how it helps communicate with consumers about the values of your products.  It provides a way for you to help identify those consumers who support the practices you are using.  In other words, eco-labeling may be a way to increase your prices and sales.

In some ways direct farm marketing is already a form of eco-labeling.  This is true because in most situations your customers have taken steps to buy food directly from the people who grow it.  In this way, direct farm marketing is really a way of labeling the food you sell as being “farm raised,” locally grown, or similar terms.  This is true whether or not you make any special efforts to label or describe your food this way.  Eco-labeling is important because it may provide the means to capture some of the value of your products now being lost or going unclaimed.

Q. What groups are promoting eco-labeling for food and what are their goals?
There are a number of groups and institutions promoting the use of eco-labeling for food products.  One of the most important forces promoting this development are environmental groups, such as the World Wildlife Fund (WWF) and the Sierra Club.  The WWF has been a world leader in developing eco-labeling for a variety of products.  The main goal of the organization is to encourage manufacturing and production methods which do not destroy or imperil the habitat for wildlife. The WWF and Wisconsin Potato Growers have been working together to promote Healthy Grown Potatos, an eco-label for potatoes raised with fewer pesticides, for over a decade now.

Other eco-labeling programs have been the result of state efforts to expand marketing opportunities for producers.  One significant program in this regard is the New York state effort to promote the sale of products raised using “integrated pest management” or IPM practices.

Q. What is the purpose of the New York IPM program and how does it work?
The New York state IPM program was started in 1985,  as a partnership between the New York State Department of Agriculture, Cornell University and the Cooperative Extension Service.  State and university officials have worked with producers of twenty-five major crops to develop production practices which help reduce the reliance on pesticides while still maintaining high quality products. The law creating the New York IPM program [New York Stat. Agri. and Markets Law, §148] provides the following definition of what the IPM program includes:

1.  There is hereby established an integrated pest management program for the purposes of managing insects, disease, nematodes, weeds and rodents.  Such program shall include, but not be limited to programs of instruction, research and development, the purpose of which is to educate the agricultural community and integrate programs of:

a. crop management and cultural practices;

b. field scouting;

c. economic threshold; and

d. chemical and biological control.

2. Such programs shall be developed and conducted in such a manner as to encourage:

a. expanded research on biological control and cultural pest management technologies, crop and pest resistance technologies;

b. use of sampling methods, economic thresholds, monitoring technology, pest forecasting, and the effects of weather on pest and crop parameters;

c. development of computer programs and computerized information systems for farmers and extension agents;

d. delivery of current and new integrated pest management technology to the agricultural industry through cooperative extension;

e. minimized levels of pesticides in feed, food and the environment; and

f. minimized economic losses due to crop, animal and stored grain pests.

3.  Such program shall identify and make application for all possible funding sources in addition to those offered by the state.

The development of New York’s IPM efforts have been assisted by the participation of food retailers in developing marketing programs featuring foods produced using IPM practices.  In New York, the Wegmans grocery chain was the first retailer to participate and a key player in promoting and marketing IPM labeled foods. Learn more about the IPM program at the project website.

Other eco-labeling programs for food are cropping up all around the country, as growers groups, food processors, retailers, and others recognize the potential that such marketing programs may provide.  In 1998, a new eco-labeling initiative, called The Food Alliance (TFA), was initiated in the Pacific Northwest.

The Food Alliance Promotes Sustainable Farming Through a Seal of Approval
The Food Alliance was created in 1998 to promote the marketing of food raised by farmers employing sustainable practices.  This eco-label is being promoted as an alternative to organic production, as a seal of approval for farmers who work to protect the environment and provide safe and fair conditions for their workers.  They also have certifications for specific products and for food handlers.

The Food Alliance has standards for the following categories.

Sustainability Standard for Crop Operations

Established in 1997, this is the original Food Alliance certification standard for farms. Covers a wide variety of fruit, vegetable, and cereal crops.

Sustainability Standard for Livestock Operations

Established in 2000. Covers beef cattle and bison, sheep and goats, grassfed ruminants, pigs, poultry and eggs, and dairy products.

Sustainability Standard for Farmed Shellfish Operations

Established in 2009. Covers oysters, clams, mussels and geoducks. 

Sustainability Standard for Nursery and Greenhouse Operations

New! Established in 2012. Covers woody ornamentals, annuals, perennials, foliage plants, potted flowering plants and cut flowers.

Sustainability Standard for Food Handling Operations

Established in 2006. Covers packing, processing, and distribution facilities.

Consumers can find Food Alliance products and producers on their website.

Q. How does 'eco-labeling' differ from producing 'certified organic foods'?
Organic food production can be seen as a form of eco-labeling.  But there are some differences in the approaches.  The main differences are that the eco-labeling is generally done by private organizations and businesses, rather than the government, and the terms or standards for qualification for the label are developed privately by the groups creating the label.

This is why some leaders of the organic food movement are concerned “eco-labeling” may be a threat to consumers and organic food producers.  The main difference between organic food production and various eco-labels is that the production and marketing of food as “organic” is regulated by the government.  This means that for producers to sell foods as organic they must comply with fairly rigorous programs designed to insure consumers the foods are in fact organic, as that term is defined in the law. For producers to comply with the organic laws they must be certified either by private or government agencies and they must meet specific production guidelines. Complying with these guidelines, which includes on-farm examination of the actual practices used, often increases the cost of producing the foods. But these costs are recovered from consumers who are willing to pay more for foods they are confident are “certified organic.”

The concern some organic growers have about eco-labeling is that in most situations eco-labeling does not involve required compliance with established government standards. While eco-labeling programs require producers to meet some standards of production, the parties doing the labeling are free to establish these standards, just as they establish the terms of the label. This means foods can be sold as “raised with reduced pesticides” or using IPM practices. However the concern some people have is understanding what these terms really mean? How much was the chemical use reduced or what does IPM mean in practice? The fear of some organic producers is that these terms do not mean much in terms of evidencing practices which produce safer foods or a healthier environment. But consumers who do not inquire as to what the labels really mean may buy the products, often paying more for them, in the belief they are doing the right thing. In other words, organic producers are concerned that “eco-labels” may unfairly steal their markets and mislead consumers.

Of course, as you might expect, the groups and organizations promoting eco-labeling do not agree with these concerns. In fact some promoters of eco-labeling argue it is a way to communicate more fully with consumers on issues, such as animal welfare, which are not adequately reflected in the organic rules.

Q. Is 'eco-labeling' regulated by the state or federal government?
At the present time there is no direct regulation of “eco-labeling” as such.  However, to the extent that federal rules require certain terms to be included on food labels, or conversely, prohibit the inclusion of certain claims on food labels, then eco-labeling is restricted. However, this situation could change. If the current trend toward eco-labeling results in a proliferation of various claims, labels, emblems, shields, etc. on food packaging or point of purchase information, federal officials may become involved. This is more likely if there are incidents where eco-labels are believed to be misleading for consumers, or where the claims being made are confusing or unsubstantiated. If this happens it is possible the FDA or the USDA could take action to regulate eco-labeling efforts.
Eight Legal Steps in Developing and Protecting Special Marketing and Labeling Claims
1. File or claim trademark protection for the unique names or labels you choose for your farm or food products.

2. When processing or marketing products, comply with applicable federal and state laws concerning the information required on food labels or packaging.

3. Develop signs and other point of purchase information which use the names you have claimed and which provide consumers information on the unique aspects of your operation

4. Take advantage of state programs to promote direct marketing of food products, such as state purchasing and locally grown initiatives.

5. Explore participating in various private market promotion programs, such as private certification or eco-labeling, which provide opportunities for your products.

6. Be sure your production and processing methods comply with the claims being made for your food products and educate all employees or family members about these claims.

7. Document your compliance and maintain records to show this.

8.  Be willing to consider taking action against anyone infringing on the labels or names you select or which unfairly mislead buyers.

Organic Food Production and Direct Farm Marketing

The production of “organic” food is one of the oldest examples of eco-labeling. Most farmers who are involved in direct farm marketing have an understanding of how the organic food production laws operate in the United States. This is true in large part because many producers involved in direct farm marketing, especially through such outlets as community supported agriculture (CSA), follow organic production systems. Programs for the production and marketing of “certified” organic foods are important for direct farm marketing because these systems create a way for farmers to produce foods according to pre-established guidelines and market these foods to consumers willing to pay more for the desired attributes. State and federal laws relating to organic production are important because they regulate when a person is entitled to use the label “organic” in the marketing of their products.

Q. What exactly does it mean to be a 'certified' organic producer?
The term “certified” organic producer means some third party – either a private entity created for that purpose or in some cases a state agency – has certified the producer and the crop as being produced using organic practices.  Generally, organic operations must demonstrate that they are protecting natural resources, conserving biodiversity, and using only approved substances. The NOP develops the specific laws that regulate the creation, production, handling, labeling, trade, and enforcement of all USDA organic products. This process, commonly referred to as rulemaking, involves input from the National Organic Standards Board (a Federal Advisory Committee made up of fifteen members of the public) and the public.

The main requirements are that the land being farmed is eligible for certification and the production practices being used meet the requirements.  The most common rule concerning organic certification is that crops be produced on fields which have not had synthetic chemicals or fertilizers applied to them for at least three years.

Each year an inspector working for the certifying agency will visit the farm to inspect the crops or products being raised and to examine the records maintained by the producer.  The producer pays a fee to the certifying agency for this service. If the certifier determines the producer has followed the farm plan and is complying with the standards for organic production then the crops are “certified.” The producer can then used the organic certified logo.

Q. My farm isn’t “certified” organic but I don’t use chemicals, can I sell my products as 'organic'?
The answer to this question depends on who you are selling to and where.  Many farmers, especially those raising produce for direct farm marketing to consumers, restrict or avoid the use of chemicals.  Their reasons for doing so vary, ranging from a desire to limit production costs to the desire to produce high quality food free from any possible chemical residues.  Some of these producers may be eligible for having their products certified as “organic” if they choose to do so.  On the other hand some  producers may use certain “organic” practices, such as not using pesticides, but may use other practices, such as using inorganic fertilizers, which do not comply with the rules.

Producers whose products might be eligible for certification may choose not to become certified for a variety of reasons.  The cost of certification is one reason, but others could include whether customers demand such certification.  In some situations there may be little incentive for the producer to be certified.  This doesn’t necessarily mean the products are not organic, it just means they are not certified as such.

In most forms of direct farm marketing, communication about the quality or traits of the products being sold is personal between the producer and the buyer.  If you tell buyers your vegetables are produced without chemicals there is little anyone can do to stop you.  You could even call them “organic” and in most situations be able to get away with it.  However, if your customers ask if they are “certified” organic and you say they are when they are not, then you would be making a false claim about the products.

In situations where your customers know and trust you, or where they have been to your farm and observed your practices, the issue of whether your products are “certified” organic may be unimportant to them.  What is important is their confidence and trust in how you farm, and their belief you are looking out for their interests by producing and selling them safe healthy food.  This is why many producers who are marketing foods in “closed” systems such as CSAs – meaning they personally know all of their customers – may choose not to be “certified,” even if they qualify.  In these situations the cost of certification does not add to their ability to market their products.

However, in situations where you are marketing products in larger quantities at retail, or to customers who you do not know, then organic certification provides a method of communicating to them how the products were raised.  Sales like this happen more often in some form of public marketplace, such as a farmers market.  In these situations, it will be much riskier for someone to claim their products are certified organic when they are not.  First, customers who are concerned about this issue may inquire about who did the certification.  Second, the rules of the market may require the producer to provide evidence of the certification.

 

Chapter SixGuide ContentsChapter Eight