FARFA’s Priority Bills for Texas’ 2021 Legislative Session

Updated March 1, 2021

Among its many impacts, the COVID-19 pandemic has revealed the fragility of our food system. In March, grocery store shelves emptied, not because of so-called panic buying, but because of the consolidated, centralized system for processing and distributing food in our country. There was no actual shortage of food, but it was inaccessible to consumers because (1) it was in processing plants designed for large-scale packaging for industrial use and the expensive, specialized equipment couldn’t be retooled; (2) it was grown under contract with large corporations that no longer wanted it, and there were no other buyers; or (3) various other problems connected to having the vast majority of our food managed under a “just in time” system that maximizes profits for a few companies at the expense of all other interests. 

In contrast, small farms and food producers were able to very quickly adjust their operations and continue providing their local communities with food during this difficult time. Demand for locally raised food is at an all-time high. The major barriers for our local farmers, ranchers, and food producers continue to come from regulations that have been written by and for large-scale, consolidated agriculture. It is time to develop a regulatory system that supports a resilient, diversified food system and small businesses.

For information on the status of these and other bills of interest to small farms & the local food movement, go to our bill tracking page.

1. Support Local Meat Production

Texas’ small farmers and ranchers have long struggled with the lack of accessible small-scale inspected slaughterhouses. Under the Federal Meat Inspection Act (FMIA), meat from “amenable species” (cattle, hogs, goats, sheep, and poultry) can only be sold if they are processed in an “inspected slaughterhouse.” While there are both USDA-inspected and state-inspected slaughterhouses, the standards for both types are the same. They include requirements for a Hazard Analysis Critical Control Point (HACCP) plan and having an inspector on-site at all times during the processing. The costs and regulatory barriers for inspected slaughterhouses have resulted in too few to meet the needs of many small farmers in Texas. 

This situation was already a problem pre-COVID, and due to the closure and slowdowns at many large-scale meatpackers, it is now a crisis: Texas farmers in many parts of the state are unable to get a slot to process their livestock at an inspected slaughterhouse for a year or more. They must somehow find a way to feed and care for their animals without being able to sell the meat for income, for a year or longer. Many will simply go out of business.

There are approximately 100 “custom slaughterhouses” in Texas, which are often closer and more accessible for small farmers. These facilities must meet federal standards and are licensed and inspected by the Department of State Health Services (DSHS). They do not, however, need to have an approved HACCP or have an inspector on-site during processing. 

Under the FMIA, the meat from custom slaughterhouses cannot legally be sold, but can only be used for personal or household consumption by the person who owned the animal at the time of processing. As a result, they primarily process meat for hunters and homesteaders. Farmers can sell a live animal in shares to individuals, then have it processed at a custom slaughterhouse, and the meat is then distributed to the animal’s owners. But this requires that the individuals are willing and able to buy ½ or ¼ of a cow at a time.

Wyoming has passed a law that creates greater flexibility within that system. It allows people to purchase shares of a farmer’s herd, and then get a distribution of the meat from any animal from that herd. This solution is consistent with the FMIA, while still allowing small farmers to use custom slaughterhouses for their products. This will make selling meat more accessible and profitable for smaller-scale producers, encouraging more farmers to produce meat for their local communities. And it will enable Texas consumers to more easily obtain meat directly from Texas farmers, providing for their families and supporting their local food systems.

FARFA’s proposed bill, which was filed on February 26 by Sen. Drew Springer as S.B. 867, would mirror the Wyoming law, https://www.wyoleg.gov/Legislation/2020/HB0155.

2. The Texas Department of Agriculture’s Overreach on Small Farms

Prior to 2011, produce farmers were not regulated by the federal or state governments; food safety regulations generally began when the produce left the farm for packing or processing. Due to outbreaks linked to large-scale production and processing, Congress passed the Food Safety Modernization act (FSMA), which directed the Food & Drug Administration (FDA) to adopt new rules on many topics, including a Produce Safety Rule (PSR). Congress specifically exempted small, direct-marketing farms from the PSR when it passed FSMA. FDA’s implementing regulations created a category of very small farms that are “not covered,” in addition to the “qualified exemption” for small, direct-marketing farms. Both categories are based on the farms’ sales (the gross revenues and who they sell to), and can thus be confirmed on the basis of their financial records.

In 2017, the Texas Legislature passed HB 3557, giving TDA authority to implement the PSR in Texas. But in adopting regulations to implement that authority, TDA has gone beyond the PSR in significant ways. The agency claims that it has authority to conduct physical inspections of all produce farms – including not-covered and qualified-exempt farms. The agency further claims authority to not only enforce the PSR on produce farms, but to enforce the other provisions of the Federal Food, Drug, & Cosmetic Act. And it has created a standard not found in the federal rule, “egregious conditions,” under which the subjective opinions of inspectors could impose enhanced and potentially ruinous penalties.

FARFA’s proposed bill, which was filed on February 26 by Rep. Eddie Rodriguez as H.B. 2397, would explicitly limit TDA to implementing and enforcing the PSR, as was the intention of the 2017 law. A companion bill, S.B. 1118, has been filed by Sen. Nathan Johnson.

3. Healthy Soils for Healthy Communities

Healthy soil is a living entity, with numerous microorganisms functioning in a biological system. Healthy soil has an immense capacity to capture and store water, which provides many important benefits: reducing runoff and flooding, reducing the need for irrigation, increasing drought resilience, increasing aquifer recharge, and improving water quality. Healthy soil also results in improved yields of high-quality crops.

Despite the many benefits, only a relatively small number of Texas farmers and ranchers are currently using the full range of methods available to produce healthy soils. While many farmers have heard of rotational grazing, cover crops, no-till, and other soil health practices, they lack the information and tools to feel confident in implementing them. Many of these practices also require significant initial investment. There are federal funds available to help with this, but Texas currently lacks a mechanism to leverage those funds. 

FARFA’s proposed bill, filed as HB 2619 by Rep. Terry Wilson and SB 1118 by Sen. Nathan Johnson, would direct the Texas State Soil & Water Conservation Board to provide education, technical assistance, and grants to farmers & ranchers who use methods that sequester carbon in the soil and produce healthy soils. The bill identifies the program as eligible for both agricultural and conservation grants from the Texas Water Development Board. The bill also establishes a task force to assess current programs and identify additional measures to be considered in the next legislative session. 

4. Clarify the Provisions for Permit Fees and Sampling at Farmers’ Markets

Last session, the Texas Legislature approved two bills – HB 1694 and SB 932 – to address regulatory challenges for farmers and other people selling food directly to consumers at farmers’ markets. Unfortunately, a few local jurisdictions have failed to comply with the intent of the bill, limiting their applicability to farmers only and excluding all other people selling food at farmers’ markets. The local health departments’ legal arguments are extremely weak, and they are taking advantage of the fact that these very small businesses do not have the resources to bring suit to enforce the law. 

The 2021 bill, HB 1652, by Representative Wilson, and SB 617, by Senator Kolkhorst, would add a definition for “producer” to fix this problem, as well as add a provision to recompense farmers’ market vendors for their expense in bringing suit to enforce the law if necessary.

5. Improve Access to Locally Raised Eggs

Locally raised eggs are in high demand by restaurants and consumers, but existing regulations on “grading” create unnecessary barriers for farmers who wish to sell their eggs to chefs. “Grading” eggs involves weighing and measuring each egg, sorting them by size, obtaining a license from the Texas Department of Agriculture, and paying fees. Grading is a marketing issue and provides no benefits from a health or food safety perspective.

Texas farmers can legally sell ungraded eggs directly to consumers, and you can find ungraded eggs being sold at farmers’ markets all over the state – with no reported problems. But regulations prohibit restaurants and retailers from buying ungraded eggs, preventing farmers from selling their eggs to chefs or grocers unless they get a license and grade their eggs. This requirement is a significant barrier for many small farmers, because eggs have a very small profit margin, and the additional expense and hassle is difficult for many farmers to justify. 

This bill was filed on Jan. 13, 2021, by Sen. Nathan Johnson as SB 336. Since then, the House companion bill, HB 2028, was filed by Rep. Lambert. Last Session, the bill passed the Senate unanimously as SB 1605. If passed, it will allow farmers to sell eggs clearly labeled as “ungraded” to restaurants, so long as they are clean and sound. The bill includes labeling requirements to ensure that the consumers know who produced the eggs.

For more information, contact Judith McGeary, Executive Director, Farm and Ranch Freedom Alliance, Judith@FarmAndRanchFreedom.org, 512-484-8821 (cell).