Interview with Jason Foscolo, Food Law Firm
Continuing with our interview series for Ask a Food Lawyer, this week we spoke with Jason Foscolo, who provides legal counsel to food entrepreneurs throughout of the supply chain. Before starting his own firm, he was a Judge Advocate in the Marine Corps where he discovered his passion for food production and preparation. Jason completed the University of Arkansas School of Law LL.M. Program in Agricultural and Food Law in 2011 prior to starting his practice in New York State. Check out his work at foodlawfirm.com and follow Jason on Twitter @foodlawattorney.
What range of legal services do you provide to your clients?
My firm is a general practice law office focusing on food businesses of all kinds. My clients include agricultural producers who grow commodity and specialty crops, livestock producers, distributors, value-added manufacturers, importers, and even restaurants. My training gives me an insight into the way food production, packaging, and distribution are regulated, and I tend to seek out and represent clients who are passionate about the way their food is produced and consumed. Most of my work is business-related and transactional, but there is a fair amount of litigation in the food industry that the firm is starting to engage in. We also do a lot of outreach to new and beginning farmers and food entrepreneurs who may not know all the laws that they need to comply with, and we also reach out to more established businesses that need to stay current with changes in the law.
What are some of the biggest legal hurdles your clients face?
Beginning farmers and new food entrepreneurs concentrate too much on the product and not enough on building their business. Their products are often very compelling and interesting, but a big part of being successful is building a strong business. Just to stay within the legal sliver of a business, new entrepreneurs need to lease land or a facility, develop a solid trademark, draft non-disclosure agreements, and establish accounting systems, just to name a few requirements. We are not talking about employees, marketing strategies, sales force management, or any of the other elements outside of the law that you need to be successful. Unless you are a very savvy person and you have all of these skills, you need a comprehensive team to set up a solid foundation to get you off the ground and rolling. I think food, more than almost any other industry, requires a working knowledge of a variety of professional disciplines that many new startups don’t have. I try to provide them with some of the legal protections and supports they need to get their businesses up and running.
How would you like to see the legal landscape in food regulation change?
I think it’s well known that larger companies within an industry are not as affected by compliance as small players. As someone who works from time to time with people who have finite budgets, I see that regulations can have high costs. In some cases, like with the organic label, participating in a complex labeling regime has a definite value, but such regulations can also require a new farmer to spend a significant portion of their limited budget on legal advice just to have USDA’s rules explained to them. While big producers have the scale to afford legal advice to navigate complex regulations, small producers don’t. I’d like to see the disproportionate burden be alleviated somehow, in a way that doesn’t involve exemptions which compromise things like product safety or quality.
Is there any other particular legal issue that’s been on your mind lately?
Four words: Food Safety Modernization Act. This new law exemplifies how regulations can have a larger impact on smaller producers. There is an exemption for small producers, but the measure is based on gross earnings and not output. And the national exemption is not adjusted for different costs of living and production in different parts of the country. It is flat. So the rules apply more harshly to a producer in New York where production and living costs are higher than in North Carolina where costs are generally lower. It is something that I’ll be watching closely as some of my clients are going to be affected by these rules as they become official in the coming months.
What’s a typical day like for you?
I spend a significant portion of my week, up to 40%, marketing myself and my firm’s services. Because this is a new field of law, I can’t rely on business coming to me; I have to go out there and explain to people why I can provide a service that adds value to their business. In addition, I regularly engage in social media and blog on my website on current events in the food industry as another way to do some outreach. The rest of my time is dedicated to client work – writing cease and desist letters for trademark infringement, drafting contracts and supplier agreements, reviewing agricultural leases, answering client calls, and other typical lawyer stuff. One important aspect of being my own boss is that I have the flexibility to take my son to the beach for a few hours if it happens to be a sunny day (so long as I don’t have a huge, looming deadline of course.) That is something very important to me and I have the good fortune of having wonderful, understanding clients that support my choice to balance work with family life.
What advice do you have for aspiring food lawyers interested in working with small-scale producers?
You need a passion for the products. People in the food industry really do love what they do and it helps that I share their enthusiasm for great food. Just as important as passion is the expertise you need to give the kind of advice that will help generate value for your client. For me to get that knowledge I needed the LL.M. program in Agricultural and Food Law. I can’t speak highly enough of the quality of the education I received from the faculty there. I couldn’t do what I do now without that program. It was a practical, very technical program that taught real skills and empowered you to use legal tools to help clients. Other people may take different routes to establish their expertise – they may have grown up on a farm or in a rural community and they learned the industry that way, or they may have spent some time at the USDA or the FDA. No matter the route, it all comes back to the food. If you can make that connection with a farmer or producer and show them that you really want to help them do business just a little bit better, it’s a good day for everybody.
Many thanks to attorney Neil Thapar for assistance with this interview.