Ask a Food Lawyer: Breaking Down Legal Barriers for Small-Scale Local Food

Interview with Janelle Orsi, executive director of the Sustainable Economies Law Center

Orsi_Janelle_photoThis time on Ask a Food Lawyer, instead of answering questions, I’m doing the asking. Numerous food lawyers across the country are working hard to improve the food system. From drafting legislation to challenging corporate misconduct to supporting sustainable alternatives, these smart lawyers are playing a critical role, yet receive little credit for the important work they do.

Janelle Orsi is an attorney in Oakland, California who practices “sharing law.” In addition to her law practice, she is executive director of the Sustainable Economies Law Center, a non-profit organization whose mission is to provide “education, research, advice, and advocacy for just and resilient economies.” She is also author of “Practicing Law in the Sharing Economy,” a guide for lawyers interested in navigating the emerging field of sharing law. I included her on my recent list of the top ten lawyers in the food movement for offering free advice sessions, or “legal cafes,” for small community-based food and other entrepreneurs through SELC. For more information about Janelle and SELC, visit theselc.org and follow them on Twitter @JanelleOrsi and @TheSELC.

What is “sharing law” and how does it intersect with the good food movement?

Sharing law is a term I use to describe legal work related to any community-based project or business formed on the basis of sharing resources, like cohousing, cooperative businesses, urban farms, and even car sharing enterprises. The law practice of sharing law includes services like advising clients and drafting agreements and bylaws to form legal entities and to define how sharing will take place.

If we are going to move from the current centralized food system to a local, diversified new food economy, sharing has to be part of the solution. Corporate control of our food system vests decision-making power with a very small group of people whose profit-maximizing goals often deplete resources from communities rather than strengthen them. I think the cooperative model offers a solution to this problem by distributing power among many small-scale producers, owned by community members or workers whose goals are in closer alignment with those of the community as a whole. I envision a localized, small-scale food supply chain from farm to fork, built on a foundation of sharing and cooperative ownership.

Besides having your own law practice, you co-founded the Sustainable Economies Law Center. You must be busy. What’s a typical day like for you?

I don’t think there is such a thing, that’s what makes it so interesting! When I started my practice, I spent most of my time with individual clients. When I realized I needed to address some of the bigger issues in sharing law, I co-founded SELC and stopped seeing as many clients. Now, I spend most of my time teaching workshops on sharing law to other lawyers, mentoring legal apprentices on their way to becoming lawyers, writing, and doing interviews about a variety of sharing law subjects. I really don’t practice law all that much anymore, except for when I provide legal advice to clients at our Resilient Communities Legal Cafes. I’m on the computer a lot!

SELC recently championed the California Homemade Food Act, which makes it legal in California to sell certain food products made at home. Why did SELC take this on and how does this law benefit the public?

One major strategy for SELC is to whittle away at the legal barriers we think unreasonably prevent people from starting small-scale food businesses. Before the California Homemade Food Act passed, California law prohibited anyone from selling food produced in his or her home kitchen. A couple years ago, we noticed several other states had passed laws allowing people to produce and sell non-potentially hazardous foods out of their home kitchen. On the premise that some foods made at home didn’t pose a health safety risk and that face-to-face interactions between buyer and seller would incorporate higher levels of trust and accountability, we decided to push for a change in the law. It was the first piece of legislation we successfully carried through the state legislature and we’re glad to see so many cottage food operations starting up as a result.

What other legislation is SELC working on?

The Neighborhood Food Act is the next step in our drive to change the law regarding food production. Currently, zoning ordinances in most cities and counties in California restrict or prohibit commercial agriculture in urban areas, making the sale of food produced in one’s backyard, community garden, or on an empty lot illegal. Even if it isn’t illegal, the required permits and soil tests are often cost-prohibitive. Our proposal will make it easier for people living in urban areas, including people in housing governed by homeowners associations and tenants on leased property, to grow and sell food regardless of the zoning classification of the property.

As the sharing economy grows, what will prevent it from cooptation by corporate interests?

That’s a good question. I suppose that risk always exists, but I think that the cooperative model is our best bet against cooptation. There are two distinct features of a cooperative model that make it hard to fake. First, cooperatives are democratically controlled by their members, each having equal decision-making power. This tends to maintain high workplace standards and increase accountability within the cooperative and in relation to the public, features that don’t exist in the corporate model. Second, profits distributed to cooperative members are based on patronage dividends, which reward each member according to their involvement in the coop. So, in a potential sale to a corporation, the incentive to sell to make a big profit doesn’t exist for any single individual.

What role do you think lawyers play in building and supporting the good food movement?

Anybody starting a new food enterprise should talk to a lawyer. It’s not that I want to increase business for lawyers, it’s that many legal issues inevitably arise when starting a new food business, and some can make or break the business. So, it’s important to have a lawyer to spot potential issues at the start, before investing a lot of time, energy, and money.

In addition to representation, I think lawyers can provide valuable insight in forming new policy. Lawyers often come up against legal barriers when representing clients and can anticipate problems in the law’s application or interpretation. I think lawyers should be advising policymakers as well as leading food policy reform.

Lastly, I think lawyers must be promoters of the good food movement as well as participants. It’s necessary for the public to invest in a new food business to make it viable; for that to happen, there must be a relationship of trust between the community and the business. I think lawyers can help foster that relationship.

What, as a lawyer, is most exciting to you about the good food movement?

Well, as a human being, I just really like food! As a lawyer, I think the food movement is, and will continue to be, the testing ground for many of the changes we need across sectors to move towards a new economy. Cooperatives, community supported enterprises, local currencies, and local investment are all already playing out in the food sector, so I think it is very fertile ground for new legal models. Part of the reason I think food is attracting so much attention is because it directly affects everyone. Unlike say, energy or finance, people make choices about food every day, several times a day! The more times people have to think about their choices, the more potential exists for change.

Many thanks to attorney Neil Thapar for assistance with this interview.

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