General Policy Considerations

Ten Most Important Developments Shaping Direct Farm Marketing
1. Growing Consumer Interest in Local Food

Without question “local food” is one of the hottest trends in America’s food system and the most common way to have access to this fresh, nutritious food is to purchase it directly from farmers.  The increase in demand for local food is creating many more opportunities for people to consider becoming direct marketers and is adding new demands and markets for those farmers already engaged in the field.

2. Need for Local Meat Processing Facilities

As the demand for local food increases it is creating new markets for locally raised meat, eggs, and dairy products.  While some products, like eggs, have well developed rules for direct farmer-to-consumer sales, other products like meat and dairy can face more extensive rules as to food safety, handling, and marketing.  But one of the most significant challenges farmers in many areas face in entering or expanding production of meat is the availability of federal or state inspected animal slaughter facilities which must be used to be able to sell meat by the pound or cut.  If farmers have to drive the animals hundreds of miles for processing, the extra cost and the stress on the animals make the marketing opportunity less attractive.

Additional resources about how organizations and policy can help make local meat processing feasible and profitable can be found through the Partnership’s “Expanding Market Access with Local Processing” page.

3. Growth in Farmer’s Markets

The number of farmers markets in the U.S. has more than doubled in the last 10 years, reflecting both the demand for farm raised food and the popularity of such venues as a form of community development and social entertainment.  The growth in the number of farmers markets is creating opportunities for new farmers to enter direct marketing and creating more outlets for existing producers to market their production.  It also increases the number of communities and other organizations that have to figure out how to create, manage, and operate a farmers market.  An important new organization, the Farmers Market Coalition, have emerged to help serve the needs of markets and all of the parties involved with them – from farmer vendors to managers.

4. City Chicken Movement

One of the many strands that are being woven together in the local food movement is the rapidly expanding interest on the part of people – rural and urban alike – to keep a small flock of chickens as a source of eggs and entertainment.  The urban chicken phenomena has led to creation of new organizations, the publication of several magazines and dozens of books, and is supporting the growth in a cottage industry of businesses supplying the chicken coops, feeders, and other supplies.  It has also lead hundreds of communities across the nation from small towns to major cities like Seattle and Kansas City, to pass city ordinances to address raising poultry in urban areas.

5. Availability of Health Insurance for Direct Marketers

While issues of the cost and availability of health insurance are somewhat removed from direct farm marketing, the topic is of critical importance to farmers.  The cost and availability of insurance is an important issue, which might deter people from leaving other non-farm jobs to produce full time.  One common solution is for farm families to have one spouse maintain a job with health insurance and use this insurance to cover the on-farm spouse.  However, one issue that may complicate this strategy is the fact many health insurance policies may exclude coverage for other family members if the accident or injury was in connection with a business activity – such as farming.  As with other issues of insurance cost and coverage, the best way to prevent unpleasant surprises after an accident or illness has occurred is to ask questions of the insurance agent about what is covered.

6. Labor Law Issues and Farm Interns, Apprentices, and Volunteers

Having sufficient labor is one a critical issue for most direct marketing farms and one traditional way many farms meet their labor needs is to use what are often referred to as interns or apprentices.  These are typically young people interested in learning about how to farm and raise food, who are paid some form of a stipend (which is less than the minimum wage) and who may receive other benefits in the form of housing and food.

Interns can fill a critical labor need but from the perspective of the intern these are valuable opportunities to gain practical experience in farming, which fill gaps in formal agricultural education and give those who did not grow up on a farm the chance to experience the life and work.

The critical legal issues relating to internships, which has come into sharper focus in recent years in states, such as California, Washington and Oregon, is many common “intern” relations do not comply with applicable state and federal labor laws on wages and hours, withholding, workers compensation insurance and related issues.  While these labor law questions have not been joined in many states, in the places where investigations have occurred farms have had to pay significant fines and face uncertainty.

The result is some direct marketing farms have moved to traditional forms of hired seasonal farm labor, reducing opportunities for non-farmers to gain experience.  Another option is for states to consider enacting legislation creating labor rules for “farm internships” such as Washington did in 2010.

7. Farm Festivals and Other Periodic On-farm Events and Zoning Law

Land use rules, most often in the form of zoning, continues to be the most common legal issue facing direct marketing farms.   How farming is defined and questions about whether it can take place in areas zoned as “non-agriculture” are issues being faced by courts – and farmers – all across the nation.

The newest land use issue relating to direct marketing now popping up concerns on-farm “harvest” festivals and other annual or periodic events that may bring thousands of people – and their cars – to farms and rural areas.  The land use issues typically arise from complaints of neighbors about the traffic, noise, dust and other impacts – and legal issue is often whether these activities must apply for “special use permits.”  The question may relate to the cost of the permits as well as other rules, such as hiring security to handle parking, oiling roads to reduce dust, or required number of restroom facilities.

While the farmer may see these as a simple end of the year party for the farms customers, the land use officials – and the neighbors may view them more like a outdoor rock concert in the neighbors pasture.

8. Urban agriculture and city ordinances to encourage farming and food production

While the city chicken is one strand of local food, a larger and more significant issue relates to the enactment by cities of comprehensive ordinances and plans to promote urban agriculture.

A large and growing number of major cities, including Seattle, Los Angeles, Chicago, Memphis, Kansas City, and New York, have in recent years developed and enacted comprehensive urban agriculture plans, often including amendments to the city land use and zoning ordinances.  Typical provisions may relate to the use of vacant lands for food production, clarifying the ability of residents to grow food on their properties, expanding the availability of community gardens and allowing food grown there to be sold, inventorying city owned land to identify tracts possibly suitable for farming, and provisions to allow production of chickens, and perhaps other livestock such as goats, and bee-keeping.

These efforts to expand urban agriculture, or what can also be referred to as community-based agriculture, are helping make it possible for people to raise food and become involved in direct farm marketing.

9. Raw Milk Issues Stir Controversy

Raw milk is one food product primarily available only through forms of direct farm marketing.  While the people who purchase and consume raw milk are generally avid believers in its health benefits, food safety officials at the local, state and federal level are for the most part uniformly opposed to retail sales of raw milk because of fears over the health risks in can poise through contamination with a variety of harmful germs.

The raw milk debate is not new, one of my first assignments as a newly minted lawyer for the state of Iowa over 30 years, involved Iowa’s department of agriculture efforts to prohibit the sale of raw milk.  But consumers of raw milk and farmers who market it have been creative in finding ways to bring it to the market – such as through cow shares designed to avoid the “sale” of the milk, and they have pursued state and local legislation – successfully in some states –  to create opportunities for raw milk sales.

There is no one – or easy – answer to the raw milk debate, but it is important to recognize that for some consumers, farmers, and even trade organizations – raw milk is the most important legal issue relating to not just direct farm marketing but to consumer freedom.  Some groups and individuals have taken to promoting access to raw milk under the theme of “food sovereignty,” casting the debate over individual freedom and the right of local governments to be free of unwanted state and federal health regulations.  Several communities in Maine have gone so far as to enact “food sovereignty” ordinances declaring federal food safety laws inapplicable.  These efforts are for the most part ill-conceived and unconstitutional attempts to avoid the application of food safety laws.  But these debates, and lawsuits like that filed by the “Farmer Consumer Legal Defense Fund” may only confuse the important discussion about appropriate food safety rules, and hijack the positive ideals of local food and direct marketing, by turning what for many is a desire for better food into a political struggle over the rights of individuals to be free of public regulation.

10. USDA Efforts to Promote Local Food and Direct Farm Marketing

The appointment of Tom Vilsack, former Governor of Iowa, to become Secretary of Agriculture in the Obama Administration has set in motion a wide range of changes in how the USDA administers various federal programs and in the priorities of the department.  One of the most significant changes promoted by the Secretary has been the broadened of USDA efforts to include support for all farmers, regardless of their size or their method of production, which has brought a significant focus to issues important to small farmers and farmers involved in direct farm marketing.  Much of this focus has resulted from the USDA’s identification of expanding local and regional food systems as critical to improving rural economic development and creating more opportunities for farmers and consumers.

The most important indicator of this new priority on local food was the creation within USDA of the Know Your Farmer Know Your Food campaign, designed to identify how USDA programs can be used to increase the connections between farmers and consumers.  While Know Your Farmer is not limited to direct farm-marketing efforts, such as promoting farmers markets, these efforts are at the heart of the campaign largely because direct farm marketing is the easiest and most available method to connect consumers with the farmers who raise their food.

As a result, the internal USDA efforts to evaluate programs for how they can be used to promote the Know Your Farmer idea have led to new attention on issues important to direct marketing.  Topics such as support for small enterprises for livestock processing, development of new crop and income insurance products suitable for direct marketers, and expanding the use of federal nutrition benefits at direct marketing outlets are examples of how this new attention from USDA will benefit direct farm marketing.

Ten Opportunities for Direct Farm Marketers and the Legal Issues They Raise
1. Season and Product Extension

A key opportunity for direct marketers, especially in light of the growing consumer demand for local foods, is finding ways to increase the length of the market season and to expand the types of products to be sold.  There are a number of ways producers can attempt to forward these goals, including:

  • Working with the farmers market managers to lengthen the market season, or to consider adding winter markets at indoor locations.
  • Adding high tunnels and other production techniques to bring products to the market sooner when higher prices may be possible, or to extend the growing season longer into the year.  In 2009 the USDA Natural Resources Conservation Service (NRCS) implemented a “high tunnel” pilot program under the Environmental Quality Incentives Program (EQIP) to provide significant cost-sharing assistance to thousands of growers to build high tunnels.
  • Adding more products to what is produced and sold, especially products like eggs or meat which have a year round market and which can be delivered directly to customers on a periodic basis.  The addition of higher-value products like these, or food products like jams and salsa will introduce new issues as to food safety regulations and licensing.
  • Using the list of farmers market customers to offer home delivery or develop common drop off sites for off-season sales.  Many producers arrange to locate their trucks in a convenient parking lot during set hours and encourage customers to stop by for deliveries, however this method can raise issues relating to zoning or even require permits for peddling.

2. Diversify the Types of Direct Marketing Used

A common way many direct markets expand sales is to add a new marketing outlet.  Many farmers who rely primarily on seasonal farmers markets have diversified into CSA.  The CSA method of direct marketing is growing and evolving in the U.S. and has become an increasingly important market mechanism for farmers.  If you are considering a CSA there are many options which include doing it just for your farm or joining with a group of other nearby producers who may offer a more diverse line of products – for example someone may have eggs and another fruit – to offer customers.  Farmers who decide to go the CSA route have many factors to consider including the use of contract, the price for shares, the timing and frequency of deliveries as well as their location.

3. Take Advantage of EBT Programs and Use of Smart Phone Technology

A key to successful marketing is finding your customers and making sales transactions convenient.  As the federal food assistance programs, commonly know as food stamps but officially called the Supplemental Nutrition Assistance Programs (SNAP), has shifted completely to using electronic benefit transfers (EBT) many direct farm markets – and farmers markets – have had to adjust to take advantage of the technology.  While a shift to EBT has required many vendors and markets to go to the expense of acquiring technology to read EBT cards, there are important benefits from doing so.

In addition to being able to take advantage of the sales funded by SNAP – and in doing so making direct marketing a part of the nation’s nutrition assistance efforts – most devices which read EBT cards also are able to process credit card transactions.  The reality is that most vendors using such card reading devices make more sales of greater value to credit card customers.  This can be especially important if the products being marketed are of higher value, such as meat, which might exceed the cash a customer is carrying for an impulse purchase.  It is also important to recognize that the type of technologies available to read credit cards will continue to evolve – for example many smart phones can be so equipped, and the cost of using them will continue to decline.  Because many people now exist in a cash-free all plastic world for their purchases it is important for direct farm marketers to serve them.

4. Take Advantage of Public Nutrition Assistance Programs

Direct farm marketers need to consider the benefits of participating in the various public nutrition programs such as SNAP and WIC.  While these programs have not been an important source of sales for some farmers or markets they do represent an important opportunity.  The percentage of Americans now receiving food assistance has increased sharply and pubic officials are considering how the programs can be used to increase access to fresh nutritious produce – the idea that underpins the WIC and Seniors nutrition coupon programs.

Across the nation, people are experimenting with innovative projects to increase the use of nutrition assistance benefits for direct farm marketing, such as the innovative “double voucher” program being piloted by the Wholesome Wave Foundation.  This program uses private funding – much of it from companies involved in health such as hospitals and insurers – to double the value of nutrition assistance if it is used to purchase fresh produce directly from farmers.  The success of these programs in improving access to fruits and vegetables indicates they will continue to expand in the future.

5. Get Involved with the USDA – Be Counted

One criticism many small farmers and direct marketers have often made about the USDA is that it does not focus on issues important to them and that it is only interested in commodity production on a large scale.  The recent efforts by Secretary Vilsack to make USDA more relevant to all types of farmers and to focus on local and regional foods shows that USDA can change.  But direct marketers can also help USDA in this work by making sure the department knows they exist. There are two things marketers need to do.

First, be sure to fill out the Census of Agriculture – the next one will happen in 2017.  The Census happens every 5 years and it provides the data upon which most USDA and Congressional action is based.  By making sure to be counted direct farm marketers can help make sure USDA and Congress are aware of the number of farms relying on these sales and the extent of the market.

The second step is to be sure your farm is registered with the USDA and that you have a farm number from the Farm Services Agency (FSA).  By registering your farm with USDA you will be sure to receive a Census, but as importantly you will be able to take advantage of various USDA programs.  For example, if you wanted to apply to the NRCS for cost sharing for a high tunnel, you would first have to have a farm number.  To obtain a number contact the local FSA office.  You will be required to show them a deed to the land you are farming – and perhaps show a survey – or if you are leasing land you may have to have the landlord assist in the process.  The FSA officials can explain to you the process and help fill out the necessary form.  There is no minimum size for a farm or restrictions on where they can exist so be persistent if the local FSA officials play dumb or are unhelpful.  If you encounter problems contact the Office of Advocacy and Outreach in the Office of the Secretary at USDA and explain the problem.

6. Consider New Opportunities for Institutional Sales

Most farmers involved in direct marketing choose this type of selling because the returns are higher than larger scale wholesale marketing in volume.  As the demand for local food increases many food marketers – what can be considered institutional buyers such as grocery stores, restaurant chains, schools, and food companies such as Sodexho – have begun looking for supplies of local food so they can meet the demands of their customers.  These institutional sales may offer opportunities for direct farm marketers since the food they grow is authentic and local.

However the markets may also present challenges – in the prices being offered, the quantities being desired and the conditions the buyers might impose such as having food safety plans and liability insurance.  While these issues may mean the possible markets are not attractive or even available to many direct marketers it is important to consider how these institutional markets may allow for the sale of larger volumes and with less costs and time involved in the sales – as compared to farmers markets.  The key for any farm is to consider the opportunity and weigh the additional sales and income against the costs and other risks they may represent.

7. Agri-tourism and On-farm Experiences

The idea of offering customers other activities to engage in once they visit the farm is nothing new for many direct marketers.  In recent decades many farms have added corn maizes, hay rides, you pick pumpkin patches and other activities to draw in customers and offer entertainment on the farm.  The demand for these experiences – both authentic farming activities such as farm stays and gathering the eggs and more invented touristic activities such as corn maizes – is growing and many farm families will have the opportunity to decide what if any of these activities might be right for the farm.

Many factors will go into such decisions including the size of near by populations, the resources available to the farm and the possible returns. But the issue of on-farm activities can also raise a host of legal and regulatory issues, not the least of which are the application of land use and zoning laws which may determine if and where an activity can take place, and questions of liability and insurance costs to help cover any risks that might be associated with having large numbers of paying customers engage in some activity.

There is no easy answer to any of these questions – though this book gives guidance on many of them.  The easiest rule to remember is that the more something looks like something other than farming then the more likely it is other legal rules might apply.  Just because you live on a farm do not assume you can do anything you like or bring as many people onto the farm for any reason without considering the impact on neighbors and the public.  This doesn’t mean that what you want to do is necessarily illegal but it may mean there are new issues to consider and new regulations with which to comply.

8. Consider Farm-to-School Marketing Opportunities

One important example of where the interest in local food and improve the diet and nutrition of citizens are coming together is in the area of “farm-to-school” marketing.  The idea here is fairly simple – schools buy and serve large amounts of food to young people who need sound nutrition and local farms should be considered as the source for this food whenever possible.

This common sense idea is the subject of initiatives all across the nation – and the focus of a national farm to school organization – but as you might expect it is not as simple as it might sound.  Many factors make farm-to-school marketing a challenge – including the budget pressures schools face in the prices they can pay, the changes in school feeding such that many facilities lack kitchens to prepare food, and the seasonality of the products local farmers might be able to supply.

But these possible challenges are not insurmountable an the opportunity to consider local schools as possible markets for farm products is something any direct marketer can consider.  One of the important factors to remember is the schools are administered by locally elected school boards and most schools have some autonomy in deciding what foods to buy.  If the parents and citizens in a school district believe buying food from local farmers should be a priority there is nothing standing in the way of making this possible.

9. Connect with Local “Foodie” Groups – Such as Slow Food and Edible Communities

The growth in the local food movement has also led to the formation of many groups of people who find common interest around food issues.  For example, Slow Food USA has chapters in towns and regions all across the nation and helping support the production and enjoyment of locally produced foods is a key goal of the groups.

Many direct marketers are involved with Slow Food and similar groups, and may bring members to their farms for tours, planting and harvest parties and other food base events.  By making contact with these groups farm marketers can help find new customers but as importantly find new allies and supporters who are interested in helping improve the local food economy.  Whether the issue is expanding the local farmers market, talking to the school officials about farm to school, and working with zoning officials to help promote farming – these citizen allies can be very important in improving the local environment for farming – and for increasing the awareness of farming and its appreciation.

The growth in the Edible Communities series of regional food magazines is another great example of how the interests of eaters can be important ingredients in improving the prospects for direct farm marketers.  These publications are always looking for interesting stories and having your farm featured in a regional food magazine can be great advertising and validation for your work.

10. Utilize Social Media as a Way to Connect with Your Customers

The methods of communication we use continue to evolve – with techniques unheard of when this book was first written now being common ways many people, especially the young, stay in touch.  Social media tools such as Facebook and Twitter are just two examples of such “new” ways of communicating. Many direct farm marketers are taking advantage of these convenient and inexpensive ways of talking to their customers – such as informing them what new products are ripe and where the next market will be.

In addition to serving as a method of communication, social media is also a way to create interest groups and friends. In recent years, there have been several well-publicized lawsuits involving direct farm marketers in which the farms have used social media to reach out to supporters and develop community support for the farms.  When hundreds of local residents show up at a zoning hearing to support a popular farm it gives the public officials a new perspective on the issue.   While it is impossible to predict what new forms of social communication may be developed in the years ahead it is clear that farmers can use these tools in important ways to promote the success of their farms.

Fifteen Questions that May Cloud the Future of Direct Farm Marketing
1. Will consumer demand for local food continue to grow or is it a fad that will not be the basis for building sustainable farm businesses?

2. Will FDA and state implementation of food safety rules drive up the costs and increase the obstacles facing direct farm marketers and make it difficult to continue the direct farmer-to-consumer forms of marketing popular today?

3. Will state labor officials be more aggressive in investigating farms using interns, apprentices or other forms of work arrangements possibly illegal under existing labor laws, and in the process change the available supply of low cost farm labor and dry up opportunities for non-farmers to gain practical experience?

4. Will efforts to increase “institutional sales” by farmers, such as farm to school initiatives have the effect of creating new higher value markets for farmers or will the efforts suffer in competition with wholesale supplies?

5. Will the initiatives by major retailers like Walmart to join the “local food” movement and related efforts by national food manufacturers such as Frito-Lay to label their mass marketed products as being locally grown – somewhere – confuse or dilute the market place for true local food and limit direct farm marketing?

6. Will state, local and federal food safety officials continue to pursue efforts to limit the growth in sales and use of raw, such as by limiting the use of “cow-share” arrangements, and perhaps expand the efforts to other potentially risky foods such as cheese and eggs?

7. Will the USDA Risk Management Agency and crop insurance companies be able to develop affordable and effective forms of crop or income insurance policies suitable for small, diversified, direct marketers?

8. Will the proliferation of farmers markets and other forms of direct marketing outlets such as Community Supported Agriculture (CSA) dilute the consumer base for local food or increase the marketing costs of farmers to the point the returns from direct farm marketing decrease – or can the consumer demand for direct marketed foods continue to expand?

9. Will enough of the new generation of people who want to become farmers and who are looking for land, as seen the in Greenhorns and farmer-veterans efforts, find opportunities and economic success in farming, or will the challenges and obstacles be too great to overcome?

10. Will towns and communities welcome the growth of small farms, city chickens, and direct marketing efforts such as farm stands and pass laws to promote and protect these farms or will the traditional conflicts between farming and urban residential land uses place legal barriers to the expansion of direct marketing?

11. Will local food and direct farm marketers become an important part of the national effort to address food related illnesses such as diabetes and improve access to nutritious foods, as reflected in the seniors and WIC farmers market nutrition efforts, or will the expansion of EBT and other innovations in delivering public food assistance be unavailable to direct farm marketers?

12. Will the CSA model continue to evolve and expand as a method to develop larger more profitable direct marketing farms, or will the success of CSAs result in new legal scrutiny of their features, such as zoning concerns about using common drop off sites in residential areas, or the use of volunteers and work- share price reductions as possible labor issues?

13. Will the conventional food retailing sector, such as grocers and big box stores, come to see direct farm marketing as an increasing threat to sales and attempt to use political power to implement more stringent rules, such as food safety inspections and other licensing requirement on direct marketers?

14. Will current USDA efforts to promote the role of local and regional foods as a form of economic development, such as the Know Your Farmer Know Your Food initiative, and innovative funding efforts such as the high tunnel pilot program under EQIP, continue under future administrations or if there are changes in the leadership at USDA?

15. Will city initiatives to expand urban agriculture and expand local food production, be successful in creating opportunities for citizens, farmers and communities, or will the efforts bog down in conflicts over funding, direction and results?

Policy Actions and Examples

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.

Examples of State Laws to Protect Pick-Your-Own Farms
The examples provided here may be helpful to policy makers and advocates in formulating additional law. Several questions are also provided below the examples in order to help flesh out concerns direct marketing farmers may have about such laws.

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:

”New
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:

”Ohio
(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:
”Mich.
(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 from New Jersey. This law provides:
”New
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.

The FAQs section may help further flesh out concerns direct marketing farmers may have about such laws.
Limiting Private Landowner Liability for On-farm Recreation
All states have some form of recreational use statute that limits the liability landowners can face regarding recreational users on their property. However, there are a wide variety of such statutes with equally diverse interpretations by state courts. For instance, most, but not all statutes, only limit liability so long as no charge or fee is required for the use of the property. Further, some courts extend the limitation of liability to trespassers, while others only cover users that have sought permission.
”Recreational
The National Agricultural Law Center at the University of Arkansas provides a database of all recreational use statutes. The statutes are accessible on a state by state basis.