27: Marketing Regulations

By Talia Isaacson | February 2, 2021

27: Marketing Regulations

Weights and Measures

How does a customer know that what they just paid for is actually what they received? The system that provides this public trust is a carefully regulated process. Article 16 of the Agriculture and Markets Law regulates how “commodities” are packaged and sold in New York State. The complete Article can be found at:
http://www.agriculture.ny.gov/WM/LawArticle16.pdf.

Basic Rules

  • Food products that are not in containers must be sold by net weight, standard measure or numerical count
  • If selling food items pre-packaged, these need to be accurately marked, with (a) the net weight, standard measure or numerical count, (b) the selling price per pound or unit of standard measure and (c) the total selling price.
  • If selling bulk items by weight an approved scale must be used. The vendor is responsible for purchasing an approved device AND having it certified by a local Weights and Measures official. Many scales available at common retail outlets are not appropriate for use; visit http://www.agriculture.ny.gov/WM/725.pdf for a list of approved commercial devices. At this time there is no fee in many counties to have equipment certified, but there is a fine for not using approved scales and for every mis-weighed unit available for sale.
  • When using open containers, they should be standard sizes, i.e. pints, quarts; and remain open to allow consumer inspection. If closed, they need to be labeled.

Weights and measures officials throughout the State routinely inspect a wide range of commercial devices and packaged commodities to assure accurate measure in the marketplace. These inspections serve to eliminate from the marketplace those devices and packages that do not provide an accurate measure of the commodities or services that are exchanged. The inspections involve more than just accuracy tests, as the official must verify that the device or package meets other operational and/or marking and labeling requirements.

Look for the Weights and Measures Seal on Devices:

The seal indicates that that device has been inspected and was performing correctly and within the applicable tolerances:

Weights and Measures seal

 

For More Information:

NYS Department of Agriculture and Markets Bureau of Weights and Measures
http://www.agriculture.ny.gov/WM/WMHome.html
518-457-3146
agmweigh@agriculture.ny.gov

Fact Sheet Overview

    Marketing Regulations

    Selling Plants

    If you sell plants for landscape use including bedding plants, perennials, shrubs, and trees grown in a nursery or greenhouse, you will need to be licensed as a Retail or Wholesale Nursery, or Plant Grower by the NYS Dept. of Agriculture & Markets. If you sell cut flowers or houseplants the license is not required. As a plant seller, your greenhouse/nursery crops are subject to inspection to protect the customer from potentially diseased or insect-infested plant materials.

    Contact for Licensing Information:

    The NYS Ag & Markets Division of Plant Industry
    http://www.agriculture.ny.gov/PI/PIHome.html

    Albany office: 1-800-342-3464 or 518-457-2087

    Regional Inspectors will visit your production facility to inspect plants before you begin sales and thereafter annually. There is a fee for the license.

    Selling Produce

    No licenses are required. Federal regulations through the Food Safety Modernization Act (FSMA) Produce Safety Rule (PSR) and/or buyer requirements, such as a third-party audit, may apply to some produce growers.

    Here are some important considerations:

    Grade and StandardsSome produce is subject to USDA grade and quality standards if packaged. This includes: potatoes, apples, lettuce, and grapes. Grade, quantity of contents, name and address of producer are required on all closed packages. NYS Agriculture & Markets enforces quality and grade standards.Guides to vegetable grades and sizes, including print-out sizing templates and color photo fact sheets with grading and packing standards are available on the Cornell Vegetable Program website and are especially useful for farmers looking to sell into wholesale markets.For grading information consult the following website for fact sheets pertaining to each of the mentioned crops:
    https://on.ny.gov/2MJ0e0x/a>
    Food Safety Modernization Act (FSMA) Produce Safety Rule (PSR)The FSMA PSR establishes, for the first time, science-based minimum standards for the safe growing, harvesting, packing, and holding of fruits and vegetables grown for human consumption. Some farms may be exempt or not covered by this regulation; however, buyer requirements for food safety, such as a third-party audit may still be required. Compliance dates are staggered based on total produce sales, with the first inspections beginning for some farms in 2019. Training is required for farms covered by this regulation; to learn more about upcoming trainings visit the Produce Safety Alliance website. For general information and compliance dates visit: http://bit.ly/FSMAfinalrule

    For coverage and exemption status determination visit: http://bit.ly/foodguidanceregulation

    To attend a Produce Safety Alliance Grower Training visit: www.producesafetyalliance.cornell.edu
    On Farm Readiness Reviews (OFRR)The New York State Department of Agriculture and Markets, together with food safety specialists from Cornell Cooperative Extension, are offering On-Farm Readiness Reviews (OFRR) to prepare growers for compliance with the FSMA PSR. All On-Farm Readiness Review visits are free, non-regulatory, voluntary, and confidential. Feedback is shared only with the farm owner/grower who requested the review.For more information about On Farm Readiness Reviews visit: http://bit.ly/onfarmreadiness

    Contact the NYS OFRR Team by phone (518) 457-3846 or e-mail to Steve Schirmer (steve.schirmer@agriculture.ny.gov.)
    National Good Agricultural Practices Program (GAPs)The National Good Agricultural Practices Program provides foundational on-farm food safety knowledge to produce growers and packers. A wide variety of educational resources are available including recordkeeping templates, Standard Operating Procedures (SOPs), worker training posters, photo novellas, training DVD, and the GAPs Online Produce Safety Course.For information visit: www.gaps.cornell.edu

    Or contact Gretchen Wall at glw53@cornell.edu or Betsy Bihn at eab38@cornell.edu.
    Buyer Requirements & Third-Party Audits (Produce Safety)Third-party audit certification is meant to provide verification to the buyer that the produce they purchase is grown and packed under conditions that result in safe, wholesome fresh produce. Safe food is important for many reasons, primary among them being the health of consumers. It is also important from a liability standpoint to have standards that help assure consumers that the produce they buy is safe. Not all buyers require third-party audits. Prices for the audit vary and there are many organizations that offer audits. For a limited time, USDA is providing funding to 16 states (including NYS) for the GAP Assistance Program to enhance market access by defraying costs of undergoing voluntary USDA Harmonized Good Agricultural Practices (GAP) audits in 2019.Contact your buyer directly for more information. Be sure to ask which audit (USDA Harmonized, GlobalGAP, Primus, etc.) is required (if any) and what scopes must be completed. More information is available in Questions and Answers about the GAP Assistance Program on AMS’ Harmonized GAP webpage, https://www.ams.usda.gov/services/auditing/gap-ghp/harmonized, and by contacting AMS’ Specialty Crops Inspection Division, Audit Services Branch at (202) 720-5021 or scaudits@ams.usda.gov.
    NYS Grown & CertifiedNew York State Grown & Certified is the first statewide, multi-faceted food certification program designed to strengthen consumer confidence in New York products, address food product labeling, and assist New York farmers so they can take advantage of the growing market demand for foods locally grown and produced to a higher standard. New York State Grown & Certified is open to New York producers who adhere to the best practices in safe food handling and environmental stewardship. It is currently available to New York State producers or processors of produce, dairy, eggs, beef, poultry, pork, shellfish, Christmas trees, maple, cut flowers, craft beverage ingredients, wine, spirits, beer and cider.Learn more about New York State Grown & Certified at https://certified.ny.gov/ vary based on the commodity. For questions regarding applications or other commodities, e-mail: NYSGrownandCertified@agriculture.ny.gov

    Selling Seeds

    Labeling requirements, as well as purity and germination rate standards apply to “Each container of seed which is sold, offered or exposed for sale, or transported in this state for planting purposes.” Provisions differ across various categories of seed, and are set out in Article 9 of the Agriculture and Markets Law Chapter 631. Circular 826 presents these rules and regulations:
    https://www.agriculture.ny.gov/PI/commodities/ARTICLE9.pdf

    A readable summary of the regulations as they relate to agricultural seeds can be found here:
    https://cpb-us-e1.wpmucdn.com/blogs.cornell.edu/dist/e/1628/files/2016/02/Ag-Seed-Sales-177g9c9.pdf

    Slaughter and Sale of Farm-Raised Meats

    The best source of information on marketing your meat is: “A Resource Guide to Direct Marketing Livestock and Poultry” (Available in PDF at https://bit.ly/2TYjSbu).

    Here is a brief summary of some regulations.

    • Poultry exemption
      Farm-raised poultry is exempt from NYS and USDA inspection and can be slaughtered and butchered on farm ONLY if you raise and slaughter not more than 250 turkeys OR not more than 1000 of all other poultry (chickens, ducks, geese, etc.) per year. If you raise more than this per year the birds must be processed in a licensed 5-A or USDA facility and stamped for commercial/retail sale.
    • Other Meats (beef, lamb, goat, pork)
      These species must be slaughtered and butchered in a USDA inspected facility if you intend to sell individual cuts of meat. If you are selling whole, halves, or quarters of an animal direct to consumers, the animal can be processed in a NYS custom exempt slaughter plant. The meat must be stamped “Not for resale.” If you want to receive your meat from a USDA-inspected slaughterhouse and do further processing, such as making sausage or charcuterie, this must be done in a USDA inspected facility or NYS certified processing facility/kitchen holding an Article 20-C license. See Fact Sheet #28 for more info on 20-C licensing.
    • Exotic Animals
      Bison, deer, rabbits, game birds and ratites must be slaughtered and butchered in a 5-A inspected facility if the meat will be sold.

     

    For questions about meat slaughter and sales, contact NYS Ag & Markets at 518-457-4492.

    Selling Fish

    • Whole fish
      Without any special permits, you may sell a fresh whole fish at your farm to a private customer. You may bring completely chilled fresh whole fish to a farmer’s market and sell to a private customer. Keep fresh whole fish at 32°F with crushed ice or in a refrigerated unit.
    • Eviscerated fish
      Entire gut contents are removed and the fish is thoroughly rinsed with fresh water that is 38°F or lower (water from public source or from a tested well.) Chill the fish to 32°F immediately. At this point, the fish can be frozen and kept in a frozen state for sale. Frozen eviscerated fish may be sold at the farm or at a farmer’s market; fresh and properly chilled eviscerated fish may be sold at a farmer’s market or at the farm.
    • Fillets
      Filleting fish or any similar processing requires an Article 20-C Food Processing License at your farm or a facility off-farm that carries a current 20-C Food Processing License. You may transport your fish to a 20-C facility and use it temporarily (usually for a rental fee). Such fish may be sold to individuals, stores, or restaurants if in a frozen state. Fresh fillet sales require an Article 28 Retail Food Store license (where food and food products are offered to the consumer and intended for off-premises consumption and conducts no food processing). Current price for an Article 20-C license fee is $400.00 for 2 years and an Article 28 license fee is $250.00.

    Rules and regulations surrounding aquaculture-raised fish are subject to change. Contact the office in your region:

    NYS Department of Agriculture and Markets Food Safety and Inspection Division:
    518-457-4492 or http://www.agriculture.ny.gov/FS/FSHome.html

    Selling Eggs

    Egg cartons must be marked with grade and size (though producers selling eggs of their own production directly to consumers are exempt from this requirement). Eggs may be sold in bulk displays but grade and size must be indicated. Additionally, eggs should be washed and candled, cartons must include the name and address of producer and the date packed, and eggs must be held at 45 degrees F or lower.

    For a fact sheet on egg sales consult:
    https://www.agriculture.ny.gov/FS/industry/shelleggs.html

    A more comprehensive fact sheet, particularly relevant for larger operations needing to deal with grading, etc., can also be found here:
    http://www.agriculture.ny.gov/FS/general/farmprods.html.

    Selling Honey and Maple Syrup

    These products are exempt from licensing if you do not add ingredients or repack. Production facilities must be clean and sanitary. If you make specialty flavored honey or maple products, you must have an Article 20-C license. Maple syrup is subject to grade identification.

    For more information on the sale of Maple Syrup, visit https://www.agriculture.ny.gov/FS/general/maple_syrup_honey.html

    Alcoholic Beverages

    The production and distribution of this category of products is regulated by the New York State Liquor Authority (SLA):  http://www.sla.ny.gov/. Wine, beer, spirits, cider, and mead are each treated differently. The NYS Liquor Authority are also distinguishes between manufacturers and wholesalers, regulating and licensing these differently. Finally, the SLA also offers less-costly “micro” licenses for small-scale producers, and special dispensations for small “Farm” manufacturers using New York State grown ingredients. Depending on the particularities of your enterprise, you will need different permits.

    To apply for manufacturing licenses, visit: https://www.businessexpress.ny.gov/app/answers/cms/a_id/2027/kw/Alcoholic%20Beverage%20Manufacturer%20License

    An “application wizard” tool will then help you to find the license application fees and forms relevant to your case. After completing this brief questionnaire, you will be able to email the various documents to yourself. https://on.ny.gov/2vL3e0G

    Making/Selling Wine

    There are 4 types of winery licenses that apply to the following situations:

    • Individuals who make wines without having a vineyard
    • A retail facility that retails wines but is neither a producer or processor of grapes
    • A farm winery which must have its own vineyard and processing facilities and any purchased grapes must be 100% NY grown
    • A special farm winery that does not have its own processing facility but works with another established wine processing facility. Farm wineries may sell their own wine at their wineries, at NYS Farmers Markets and to restaurants and retail stores in NYS

    For assistance in developing a farm winery consult the following sources:

    Brewing Beer

    In order to receive a Farm Brewery license in New York State, the beer must be made primarily from locally grown farm products. The schedule for the license is as follows:

    • From January 1, 2019 to December 31, 2023, no less than 60% of the hops and 60% of all other ingredients must be grown in New York State.
    • From January 1, 2024, no less than 90% of the hops and 90% of all other ingredients must be grown in New York State.

    For assistance in developing a farm brewery consult the following sources:

    Soft and Hard Cider

    Previously, cideries fell under the SLA’s “Winery” category. Commercial scale processing of hard cider requires an Article 20-C food processing license and a site inspection, but “farm” cideries making only hard (alcoholic) cider may be exempt. Good manufacturing practices must be followed. If you are interested in making hard cider, we recommend joining the NY Cider Association, a trade association for cider-makers: https://www.newyorkciderassociation.com/.

    For soft cider, apples must be firm and washed. Pasteurization or Ultra Violet treatment is required. HACCP (Hazard Analysis Critical Control Point) plans are required for cider and juice processing facilities if selling wholesale.

    Dairy Products

    If you are interested in making processed dairy products, like cheese, yogurt, or butter, we suggest contacting the Dairy Extension Program for help understanding all the requirements and evaluating potential profitability. This team also occasionally has grant funding to host workshops for artisan cheese and dairy food producers, so it’s worth asking if there are any upcoming to help you learn the ropes.

    Milk

    Processing facilities are regulated by:

    Milk cannot be transported from a farm to a processing facility without a license, and dairy products processed in your home kitchen or a commercial kitchen cannot be sold to the general public. You must have and maintain a certified milk processing plant on your farm if you plan to sell dairy products to the public.

    Once a plan has been developed, you may also want to contact the Cornell Department of Food Science Cooperative Extension (http://foodscience.cornell.edu/ cals/foodsci/extension/index.cfm) or the Dairy Plant at SUNY Morrisville at 315-684- 6106. They offer instructional programming schools/workshops for dairy processors and have staff that may be able to help review your plans and offer advice.

    The primary resource to familiarize yourself with the development of your plant is New York State Department of Agriculture and Markets Circular 958 (Part 2), which covers the rules and regulations for operating a milk processing facility in NY:

    http://www.agriculture.ny.gov/DI/Laws%20in%20PDF/PART2_milk_ control_law.pdf

    Selling Raw Milk

    Due to the potential liabilities of selling unpasteurized milk to the public, it is highly discouraged by the State and the Cornell University Department of Food Science. However, it can be legal. In New York, raw milk can only be sold on the farm

    where it is produced, and only if the producer holds a Raw Milk Sales Part 2 permit and meets several additional tests and requirements that other milk processing facilities do not have to meet. Even if the farmer gives away one gallon of milk, a permit is required. To receive a permit the farmer must have:

    • A Brucellosis ring test on file with the Department’s Division of Animal Industry.
    • A Tuberculosis test performed on each animal.
    • The farm operation must be enrolled in the Quality Milk Production Services (QMPS) program and must have a report showing that each animal was tested for pathogens, including but not limited to Staph. aureus and E. Coli.
    • The farm operation must have a milk sample tested for the following pathogens: Salmonella, Listeria, Escherichia coliform, E. Coli 0157:H7, Campylobacter, and Staphylocci. These tests are required initially and monthly.
    • Satisfactory farm water test must be on file.

    Please contact the state Division of Milk Control and Dairy Services in Albany for requirements to sell raw goat’s or sheep’s milk.

    A farm selling raw milk is required to post the following signage:

    “NOTICE: Raw milk sold here. Raw milk does not provide the protection of pasteurization.”

    More legal information on raw milk can be found here: https://www.agriculture.ny.gov/DI/PDF%20WebDocs/RawMilkRegsPart2.pdf

    Selling Cheese

    Hard cheese made from raw milk may be sold to the public if labeled raw milk cheese and aged at least 60 days. A permit is still required.

     

    For all other food inspection questions, contact:
    NYS Dept. of Agriculture & Markets: Division of Food Safety & Inspection
    http://www.agriculture.ny.gov/FS/FSHome.html
    518-457-4492