The FTC and Local Food

December 1st may have been a big day for the local food movement, but it passed without much notice. What happened that day, you ask? That is the day that a new set of guidelines from the Federal Trade Commission [Guides Concerning the Use of Endorsements and Testimonials in Advertising (16 CFR 255)] went into effect. Specifically, these expand “Truth in Advertising” laws and create a much higher standard for endorsements. These stricter standards apply both to the “generally expected performance” of the product and any “material connections” between the parties involved. Also the new rules make clear that they apply to all forms of social media, not just traditional advertising. 

How it impacts the local and sustainable food movement:

This is a highly interconnected movement. In this context, how can “material connections” be defined? Applicability is clear in cases where money is involved. But what about endorsements on a personal blog, or a plug on Facebook? On both the for-profit and non-profit sides of the local food movement, people recognize the value of social media to spread the word and cross-promote friends and business partners. Since the users of social media recognize it as having advertising or marketing value, in due course it is probable that the FTC or a plaintiff’s lawyer will as well.

Who gets to speak? In the traditional top-down world that the FTC is used to regulating, the authority to speak on behalf of the organization is typically pretty clear. The new rules expressly hold employers liable for the endorsements of their employees, even if the employee makes the statements on her own blog or Facebook page. Do interns or volunteers within your organization provide “endorsements” to other businesses or advocacy groups?

The other potential vulnerability is in the poorly defined language that is common within discussions of sustainable foods. Take the word “sustainable” itself. While the word is clearly defined in many venues, it is not always clear that it can be applied to a particular product or practice without a large dose of opinion. Likewise, the words “healthy” or “local” are open to interpretation. “Organic” is clearly defined and has clear applicability. But even here there is danger, since benefits beyond organic status are often implied if not explicitly stated. Can these statements live up to a higher burden of proof?

Finally, the new guidelines mandate that the “advertiser” create policies and training for employees, and have a structure in place to monitor compliance. As a practical matter, this is likely to be another case where a small producer may find compliance more difficult than their larger, more traditionally structured competitors. 

Now don’t get me wrong… I believe in accountability and transparency as much as the next guy. But I am concerned that the eventual implementation and enforcement of these rules may have a particularly severe impact in a movement defined by a network of non-traditional business relationships, multiple communication paths via social media, and product claims that may be difficult to quantify. My hope is that we can create and adopt practices which the FTC will accept and others can model, before an unreasonable interpretation is imposed upon us.

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Lisa Hamilton has it right

“Sustainable agriculture is founded on the principle of farmer leadership. The first step to creating a sustainable food system is restoring stewardship, that elemental relationship in which a farmer balances food production with ecological health and social well-being. That is possible only when farmers are empowered: trusted to lead, respected financially, and encouraged—indeed, allowed—to be independent and free.”

This paragraph is lifted from a letter written by Lisa Hamilton to President Obama. (Read the whole letter here.) In it, she perfectly captures what I consider to be the defining challenge of a more sustainable food system: The fact that the people who best understand it are restricted in their ability to innovate and compete. Elsewhere in her letter, she points out that the bureaucratic burdens of operating within a highly regulated framework put the small farmer at a severe disadvantage. She cites the NAIS program as a prime example of a program, that however well intended it might be, makes it difficult for the farm without a major regulatory compliance to succeed.

I understand that some of this comes with the territory with a bureaucratic system. In one of my earlier professional lives as an employee of the federal government I saw it first hand. I recall feeling that I had to choose between getting the job done, or completing all the required weekly, monthly and quarterly reports that would demonstrate exactly why I didn’t. My immediate supervisor trusted me, but unfortunately that trust could not translate back to Washington.  The bureaucrat’s surrogate for trust? Documentation. What a relief it was to leave that job for the private sector in Silicon Valley.

Part of the allure of the farmer’s market is the ability to reconnect with the farmer and experience the trust that comes from a direct, personal relationship. I’ve experienced it myself: contrary to my own prediction, at last week’s Outstanding in the Field dinner, few seemed to care whether I was organic. But they did want to know about me… they wanted that trust.

Can we maintain that trust in a food system beyond the very small and local? That remains to be seen. But I hope so. A sustainable system where farmers were trusted to do the right thing appeals to both the progressive and the libertarian components of my nature.

About SOAR

I am a believer in representative democracy, which is the more positive way of saying I am not a fan off California’s all-pervasive initiative system. As practiced today, this system represents and failure of our elected officials to exercise the wisdom and judgment that the voters should rightfully expect. Instead we get endless campaigns pushing narrow special interests, distorted demagoguery and finally, just plain bad policy.

A favorite local example for me is the Ventura County SOAR complex. I call it that not to make it sound ominous, but because I think it is a real mess. SOAR stands for Save Our Agricultural Resources. But it applies to a series of City ordinances governing the potential conversion of agricultural land to other uses, a county ordinance with the same objectives, and a non-profit advocacy organization of the same name. The term is also used generically to apply to active members of the organization and/or the roughly 70% of Ventura County voters who can be relied upon to vote for just about any “no-growth” ballot initiative. Since two of our 5 County Supervisors are SOAR Organization founders and Boardmembers, people frequently (if imprecisely) consider the County Government and SOAR synonymous as well.

I hope anyone who knows me or regularly reads this blog believes that I am concerned with the long term economic viability of agriculture in Ventura County. So why would I have issue with a program intended to preserve agricultural land? Frankly, because I think that it does little to advance the goal, while restricting options for agricultural landowners (not always the same thing as a farmer).

Even my most organic and liberal farming friends (Yes, we have them here in Ventura… I know conventional farmers who own Priuses!) start to sound a little libertarian when it comes to property rights. This should be understandable. After several generations of carefully stewarding an asset that typically represents nearly the entirety of their net worth, farmers don’t like to see its value diminished. For a farmer, the land is not just a job, it is a family heirloom, legacy to the children, and retirement plan. Sadly though, if a farmer opposes SOAR his concerns are pretty airily dismissed. After all, his financial motives seem clear enough.

Those of us in Agriculture bear some responsibility for this. When SOAR was being rolled out in the mid ‘90’s, we generally failed to engage in the debate. No point dignifying such hare-brained scheme. We did not engage or propose alternative means to similar ends, which are surely one that most remaining Ventura Farmers can embrace. We want to see Ag continue here. We are literally working toward that goal every day.

What to do now? Item one is engagement, and this has already begun. At our County Farm Bureau annual meeting last week, SOAR architect and County Supervisor Steve Bennett was our keynote speaker. He explained the world view of our “urban friends”. In a Q&A session that followed he heard some of the rural worldview. I think there were moments where it was quite clear that neither side had any idea what the other was saying. But both frustration and a desire for cooperation was evident on both sides of the podium.

Item two is for those of us in agriculture to really begin to get serious about the policy directions that frankly acknowledge the desires of the urban majority in this county, while being a fair and workable system for those on the land. To this point, the debate has largely focused on a false choice between SOAR or no-zoning anarchy and unlimited suburban sprawl. We need a richer palette of choices. I agree with their desire for continued agriculture, and believe that local government has a role in shaping land use. There narrow point on which we differ is that in a county with greenbelt ordinances, Williamson Act restrictions, and notoriously cumbersome planning and zoning processes, SOAR believes that an additional layer of ballot box planning review represents leadership in stewardship of the land. I feel it is bureaucratic overkill. Let’s make something better.

Having been pretty tough on the “SOAR complex” let me contradict myself and acknowledge the real passion and commitment for the continuation of agriculture that I have seen from some of the individuals within SOAR’s leadership.  Specifically, I want to thank Karen Schmidt, SOAR ‘s Executive Director, for exhaustive work that she has done in support of the Ag Futures Alliance. A typical knock on SOAR is that it is a one-dimensional means to preserve pretty viewshed for the suburbs. Karen’s efforts in developing new economic opportunities for farmers with local and regional food systems contradict this view. I have enjoyed working with her for nearly 6 years, and I hope that her systematic approach to all the whirling variables in this complex system will be a model for others, even while she and I continue to argue about the details.

Common Ground?

A few thoughts that might provide a “strawman” for the Ventura AFA’s discussion on fumigants (Not in any particular order):

Organic and sustainable are not the same thing. While any use of chemicals, including fumigants, is not inherently unsustainable, lower usage will tend to enhance sustainability.

AFA values clarity and consistency in applicable pesticide regulations, but we recognize that current regulations, labels and science will likely change with experience and new data. Our understanding and awareness of certain impacts will evolve over time, and our best practices will co-evolve with them.

 Sustainability is based on best efforts to reduce or eliminate secondary impacts from their use, and consideration for alternative methods if practicable. Further, sustainability is not an easily identifiable end point: it is a process of continuous improvement.

Legal action may be appropriate as a means of getting redress from bad actors or pressuring regulatory agencies and policymakers, but AFA calls for safe harbor for responsible growers using approved legal practices.

AFA recognizes that all human activities carry with them certain impacts, and this includes agriculture, both conventional and organic. The challenge before us as stewards is to continually seek to minimize our impacts while still deriving the needed benefits.

Conventional agriculture is not something categorically wrong that we should seek to eliminate completely, such as violence, or racism, or disease. While seeking to reduce negative impacts, we must also recognize the positive benefits that society has received from agriculture.

The bundle of technologies and practices called the “Green Revolution”, were generally accepted as a complete package during the “Better Living through Chemistry” era of the 1950’s. That experience has shown that some of these have had differing impacts and levels of effectiveness. The task at hand is to “unbundle” these technologies and practices and keep the best, rather than reject the whole package.

Fumigants (as with many other chemicals) are potentially harmful materials that require training, professionalism, concern for others, and strict compliance with applicable guidelines to be used responsibly. AFA does not endorse careless, sloppy, or illegal usage of restricted materials.

Encourage further research and extension in the areas of alternative applications methods, materials, and cropping strategies.

In order to allow growers more choices of economically viable crops and practices, AFA should continue to promote a greater diversity of markets and distribution channels and support mechanisms such as land trusts and  conservation easements to ease economic pressures that limit farmer’s options.