Return to Frequently Asked Questions.

Q. Are there states which have enacted laws to promote direct farm marketing?
Yes, a number of state legislatures have enacted programs to support development of direct farm marketing.  The states of New York and California are two of the best examples.  The states are interested in how the state government – generally through the department of food and agriculture – can help create opportunities for farmers to sell directly to consumers.  The states do this in a variety of ways, from supporting creation of farmers markets to providing grants to farmers interested in diversifying into direct farm marketing.

California Law Establishes State Policy  on Direct Marketing 

The California Food and Agricultural Code, Article 47000, contains the state law to promote direct marketing.  The law provides an excellent set of legislative “findings” concerning the value of direct farm marketing.  The law provides:

The Legislature finds and declares all of the following with regard to the direct marketing of agricultural products:

(a) Direct marketing of agricultural products benefits the agricultural community and the consumer by, among other things, providing an alternative method for growers to sell their products while benefiting the consumer by supplying quality produce at reasonable prices.

(b) Direct marketing is a good public relations tool for the agricultural industry which brings farmers face-to-face with consumers.

(c) The marketing potential of a wide range of California-produced agricultural products should be maximized.

(d) The department should maintain a direct marketing program and the industry should continue to encourage the sale of California-grown fresh produce.

(e) A regulatory scheme should be developed which provides flexibility that will make direct marketing a viable alternative without disrupting other produce marketing systems.

(f) The department should assist producers in organizing certified farmers markets and other forms of direct marketing by providing technical advice on marketing methods and in complying with the regulations that affect direct marketing programs.

(g) The department is encouraged to establish an ad hoc advisory committee to assist the department in establishing regulations affecting direct marketing of products and to advise the secretary in all matters pertaining to direct marketing.

The California law is without doubt one of the strongest laws on direct marketing, but New York also has some very important laws concerning the value of direct marketing for farmers and consumers.  A New York law, enacted in 1981, [New York Stat. Chap. 69 Art. 23 §281] provides:

The legislature hereby finds that inflation has caused higher prices in all phases of farm and food production and farm and food products distribution; and that demand, by consumers within the state, for increasing supplies of wholesome, fresh and nutritious farm and food products provides a significant opportunity for the development of alternative marketing structures for food grown within the state by which such products may be supplied directly to the consuming public.

The legislature finds also that encouraging direct sales from farms and other agricultural producers to consumers and other buyers can provide producers with a substantially increased income over that which is currently obtainable through the conventional wholesale marketing system.

It is therefore the intent of the legislature and the purpose of this article to encourage expanded production of farm and food products through providing increased opportunities for farm and food product producers within the state to wholesale and retail their products directly to consumers on a state, regional and local basis; to encourage purchasing opportunities which will lower food costs to consumers; to increase the share of the consumer’s food dollar retained by the producers of farm and food products; to make farm and food products more readily available to residents of the state; and to encourage and facilitate the purchase and use of farm and food products produced within the state by public and private institutions and agencies.

Steps States Can Take to Promote Direct Farm Marketing

If state officials are interested in promoting direct farm marketing there are a number of actions they can take.  The New York law identifies eight different activities as part of a statewide direct marketing initiative and the law authorizes regional efforts to promote direct marketing.  The eight steps are good examples of what states can do to promote direct farm marketing.  The law [New York Stat. Chap. 69 Art. 23 §284] provides these activities shall include, but not be limited to:

1. Communications and promotion of direct marketing activities, to include, where appropriate, cooperation with the cooperative extension service in the area of education.

2.  Development of institutional direct marketing programs to increase the purchase of New York state farm and food products in coordination with the office of general services and the department of education.

3.  Development of a technical assistance program for initiating, improving, and expanding direct marketing activities and developing new forms of direct marketing.

4.  Development of guidelines for direct marketing operations that will assist individual producers in reducing costs and improve their financial returns and help assure consumers of high quality food.

5.  Assistance to retail food stores in purchasing directly from New York state food producers.

6.  Assistance to direct marketing organizations in areas identified as having poor consumer access to high quality and reasonably priced food and farm products.

7.  Assistance to producers and consumers to initiate or improve retail and wholesale farmers markets.

8.  Submission of a biannual report to the legislature which shall include an evaluation of the regional and institutional effect of direct marketing activities.

Q. What types of direct farm marketing are most commonly supported by states?
Most states which have adopted laws on direct farm marketing place emphasis on supporting the creation of farmers markets and on the operation of roadside stands.  For example another New York law discussed in the Chapter Four makes it the state policy to encourage the creation and use of farmers markets.  Other state programs help support the creation of roadside stands.  For example, both Georgia and South Carolina operate “roadside market incentive programs” designed to improve the appearance and operation of the markets.  Under the Georgia law [GCA §5-3201] “the Roadside Market Incentive Program,” is designed to “improve the quality of roadside markets and to promote fair and sanitary marketing practices throughout the roadside markets in this state.”  The law gives the state Department of Agriculture rule making authority to establish standards for the design and operation of markets.  Roadside markets meeting the guidelines are eligible to post signs designating the markets as “state certified.”
Q. Are there laws that protect direct marketers from liability for accidents on their property?
As a result of the threat of liability facing farmers who operate pick-your-own farms, several states have enacted laws to limit the potential liability of these operations.  Under these laws the operator is protected as long as the operator did not create an “unreasonable risk” or did not engage in “willful, wanton, or reckless conduct.”

While the individual state laws deal with the same subject each takes a somewhat different approach. It is worthwhile examining the language of several of the laws to illustrate the different types of protections which might be available.  For example:

II. An owner of land who permits another person to gather the produce of the land under pick-your-own or cut-your-own arrangements, provided said person is not an employee of the landowner and notwithstanding that the person picking or cutting the produce may make remuneration for the produce to the landowner, shall not be liable for personal injury or property damage to any person in the absence of willful, wanton, or reckless conduct by such owner.
The New Hampshire law, enacted in 1981, is interesting because it specifically mentions “cut-your-own” operations.

Compare this language with the somewhat different approach used in the Ohio law.  It  provides:

(B) In a tort action, in the absence of willful or wanton misconduct or intentionally tortuous conduct, no owner, lessee, renter, or operator of premises which are open to the public for direct access to growing agricultural produce shall be imputed to do either of the following:

(1) Extend any assurance to a person that the premises are safe from naturally occurring hazards merely by the act of giving permission to the person to enter the premises or by receiving consideration for the produce picked by the person;

(2) Assume responsibility or liability for injury, death, or loss to person or property allegedly resulting from the natural condition of the terrain of the premises or of the condition of the terrain resulting from the cultivation of the soil.

The Michigan law takes yet another approach to offering liability protection for PYO operators.  It provides that:
(5) a cause of action shall not arise against the owner, tenant, or lessee of land or premises for injuries to a person, other than an employee or contractor of the owner, tenant, or lessee, who is on the land or premises for the purposes of picking and purchasing agricultural or farm products at the farm or “u-pick” operation, unless the person’s injuries were caused by a condition that involved an unreasonable risk of harm and all of the following apply:

(a) The owner, tenant, or lessee knew or had reason to know of the condition or risk.

(b) The owner, tenant, or lessee failed to exercise reasonable care to make the condition safe, or warn the person of the condition or risk,

(c) the person injured did not know or did not have reason to know of the condition or risk.

(6) As used in this section, “agricultural or farm products” means the natural products of the farm, nursery, grove, orchard, vineyard, garden, and apiary, including, but not limited to, trees and firewood.

The final example of a PYO liability limitation is the New Jersey law.  This law provides:
1.  As used in this act, “agricultural or horticultural land” means orchards, nurseries or other land devoted to the production for sale of plants, crops, trees, forest products or other related commodities.

2.  Notwithstanding the provisions of law to the contrary, an owner, lessee or occupant of agricultural or horticultural land shall not have a legal duty to protect a person who is invited onto the land for the purpose of picking or taking agricultural or horticultural products from the natural risk or hazards that are inherent characteristics of agricultural or horticultural land, and shall not be liable if such a person invited onto the land is injured because of any natural risks or hazards that are inherent characteristics of agricultural or horticultural land.

While the New Jersey law does not explicitly provide that it applies when the person has paid money to be on the land, a legislative note attached to the law makes it clear that is the purpose.  This is an example of the type of legal question which can arise even when such a law is on the books.  From reading these different laws, you can see that a number of questions may still need to be litigated, including: what are the “inherent characteristics of the land”, what is a “condition that involved an unreasonable risk of harm”, what is “willful, wanton, or reckless conduct” of the owner?While these laws will apply to some situations, such as a person falling into a hole (if the owner did not know it was there) it is unlikely the laws will provide protection in a case where a person was injured by falling off a defective ladder provided by the owner.

One problem with the PYO laws is they may give owners a false sense of security that they are protected from liability and the owners may then fail to take reasonable precautions to prevent accidents from happening.  Perhaps the best way for you to think of such laws is that while it is better to have one than not to, do not rely on the laws to protect you from liability, especially if you can prevent the situation from arising.

You should always talk with your insurance provider to make sure your direct to market farm operations are covered by your insurance policies.

Q. Are there other actions states can take to promote direct farm marketing?
Yes, there are a variety of activities and programs states can undertake to assist direct farm marketers.  One of the most valuable is to publish directories of farms which have food products for sale to consumers.  Many states publish such farm directories, for example the Maine law on direct marketing of agricultural commodities [Maine Stat. Title 7, Chap. 101, §412] requires the Commissioner of Agriculture to prepare information designed to develop and promote direct marketing, including, “a list of the names and addresses of all Maine farmers and of the agricultural commodities which each produces.”  In 1998 North Dakota published a directory of all the farmers in the state involved in direct marketing of food and farm products.  Many states publish guides or maps to help people locate farmers involved in on-farm marketing.

Another approach being taken in some states, such as Connecticut, is to address direct farm marketing as part of a more comprehensive effort to examine the food and agricultural system in the state. [See sidebar.] One action many states have taken is to provide legislative protection for roadside markets under local zoning laws.  Examples of these laws are discussed in Chapter Eight.  The following are some other examples of state programs to assist direct farm marketers.

Minnesota Buy Local Law Includes Food Products – In 1988 Minnesota enacted a law, [Minn. Stat. Ann. §16B.103] titled “Agricultural food products grown in state.”  Subdivision 1 of the law, on “state contracts” provides, “The commissioner [of administration] shall encourage and make a reasonable attempt to identify and purchase food products that are grown in this state.”  Subdivision 2 requires the commissioner to prepare and submit a report each biennium to the house and senate agricultural committees “on the total food products purchases, contracted for by agencies and the amounts of fruits, vegetables, grains, meats, poultry, and other food products purchased or contracted for that are grown in this state.”  Many other states, such as Connecticut and Massachusetts, have similar local purchasing laws.

Minnesota Grown Label Law – Minnesota also has a program, enacted in 1979, for the development and use of a Minnesota Grown label and logo.  [See Minn. Stat. Ann §17.102].  The law requires people to obtain a license from the state for the use of the label.  Any fees generated from use of the logo go into a “Minnesota grown account” to be used for enforcement and promotion.  The law provides that, “the Minnesota grown logo or labeling statement may be used on raw agricultural products only if 80% or more of the agricultural product is produced in this state.”

Many state departments of agriculture, for example Iowa, New Jersey, Utah, and West Virginia, administer similar state labeling programs to promote produce and food grown in the state.

Are there federal programs to promote direct farm marketing?
The USDA has a variety of policies and programs that directly and indirectly promote direct farm marketing. First, the department leads by example, hosting a farmers market in the USDA parking lot in D.C. and encouraging other USDA facilities to allow for the sale of farm products on federal property. There are also several agencies and programs with programs directed specifically at the promotion and success of direct to consumer farm marketers.  These include:

The Agricultural Marketing Service (AMS) “administers programs that facilitate the efficient, fair marketing of U.S. agricultural products, including food, fiber, and specialty crops.” Support for direct marketing comes from research funding, education, collaboration, maintenance of a national database of information and research, and a searchable inventory of farmer’s markets across the county.
“A USDA-wide effort to carry out President Obama’s commitment to strengthening local and regional food systems,” the program provides a list of funding opportunities for producers and others seeking to promote direct farm marketing. The website contains an additional database of resources for producers looking to take advantage of local and regional markets.
“The role of USDA’s Risk Management Agency (RMA) is to help producers manage their business risks through effective, market-based risk management solutions.” RMA administers regional Risk Management Education Centers that provide funds to those with the expertise to develop and deliver risk mitigation educational materials to producers.