By Steve Eder • New York Times News Service


For eight weeks every fall, Indian Ladder Farms, a fifth-generation family operation near Albany, kicks into peak season. The farm sells homemade apple pies, fresh cider and warm doughnuts. And as customers pick fruit from trees, workers fill bins with apples, destined for the farm’s shop and grocery stores.

This fall, amid the rush of commerce — the apple harvest season accounts for about half of Indian Ladder’s annual revenue — federal investigators showed up. They wanted to check the farm’s compliance with migrant labor rules and the Fair Labor Standards Act, which sets pay and other requirements for workers.

Suddenly, the small office staff turned its focus away from making money to placating a government regulator.

During the next several days, the Ten Eyck family, which owns the farm, along with the staff devoted about 40 hours to serving the investigators, who visited three times before closing the books.

“It is terribly disruptive,” said Peter G. Ten Eyck II, 79, who runs the farm along with a daughter and son. “And the dimension that doesn’t get mentioned is the psychological hit: They are there to find something wrong with you. And then they are going to fine you.”

This is life on the farm — and at businesses of all sorts. With thick rule books laying out food safety procedures, compliance costs in the tens of thousands of dollars and ever-changing standards from the government and industry groups, local produce growers are a textbook example of what many business owners describe as regulatory fatigue.

During the past five decades, Ten Eyck said, there has been an unending layering of new rules and regulations on his farm of over 300 acres, as more government agencies have taken an interest in nearly every aspect of growing food, and those agencies already involved have become even more so.

Now, a new rule is going into effect that will significantly expand the oversight of one regulator, the Food and Drug Administration, at the farm. And aside from the government, major retailers like Costco and Walmart mandate extensive food-safety planning and audits for their suppliers, all at a cost.

Using data from the Mercatus Center, a conservative-leaning economic think tank at George Mason University, The New York Times identified at least 17 federal regulations with about 5,000 restrictions and rules that were relevant to orchards.

More than any president since Ronald Reagan, President Donald Trump has publicly seized on frustration toward a regulatory pile-on and pledged to trim, consolidate and eliminate rules.

Regulation streamlining is a winning message across the political spectrum when it comes to making life easier for small businesses, according to more than 20 interviews with business owners and others in the produce industry.

Many farmers, including Ten Eyck, acknowledge that not all regulations are bad. The grievances relate largely to the sheer amount of time and money that it takes to comply, and what farmers see as a disconnect between them — the rule followers — and the rule-makers, who Ten Eyck describes as “people looking at a computer screen dreaming up stuff.”

“So many of the farmers I’ve spoken with tell me that stricter and stricter regulations have put many of their neighbors and friends out of business, and in doing so cost them their homes, land and livelihoods,” said Baylen Linnekin, a libertarian-leaning expert in food law and policy, in an email. “For many farmers, rolling back regulations is the only way they can survive.”

‘The number of rules on ladders alone!’

After a lifetime of navigating his family’s agricultural business, Ten Eyck has a firm appreciation for the rules and regulations that are good and helpful, as well as those that are excessive and ill-advised.

One persistent concern is the use of ladders. “The number of rules on ladders alone!” said Ten Eyck, explaining there is an assortment of rules, guidances, standards and training requirements associated with ladders, including how to achieve proper angling and how to prevent falling when filling produce bags.

Ladders fall toward the excessive end of Ten Eyck’s sliding scale of regulatory cumbrance; on the more helpful end are procedures required to track produce when there is a disease or illness outbreak. Most rules fall somewhere in between.

Beyond food quality concerns, there is considerable regulation around managing a workforce on the farm. During peak season, Indian Ladder employs about 100, including pickers in the field, servers in the cafe and cider pressers.

To keep up with the panoply of changing rules, farmers are left with little choice but to seek schooling. “You can’t just hunker down in the bushes and look out to see what’s going,” said Ten Eyck, who has served on many agricultural boards and commissions, including on the New York Farm Bureau Foundation. “You have to go to meetings and attend workshops. You are responsible to know what the hell is going on. It’s a business.”

Whole Foods, the regulator

Retailers like Whole Foods, Walmart and Costco serve as some of the most demanding regulators of produce growers. The widest-reaching requirement is that their suppliers have detailed food safety and handling plans, which are customized by the farms, usually with the help of consultants. The plans are based on FDA guidelines, but are entirely voluntary.

The rules can be pretty specific, banning fake eyelashes (they can drop into food) and specifying certain types of wedding bands that can be worn (they can get caught in equipment). The distance between vehicles and crops is closely monitored (exhaust fumes are harmful). And chewing gum is prohibited because it could contaminate the produce.

The food safety plans, and the audits, are costly and absorbed by the farm, though occasionally, a retailer will offer to chip in. The audits are usually conducted by private firms or through government programs.

In the end, the Ten Eycks sell most of their apples directly to customers who come to pick them at the farm, sidestepping the hurdles imposed by Whole Foods. The rest are stored in a huge refrigerator and sold in the store or locally to retailers near Albany.

“I put apples on the shelf that aren’t perfect,” Ten Eyck said. “Don’t put me in the corner where I have to spray for cosmetic reasons. In a supermarket, everything has to be perfect.”

‘Our goal is to help them produce safe food’

Whole Foods may not be selling apples from Indian Ladder Farms, but the grocery chain’s rigorous oversight is acting as a dry run for the next big thing coming in government farm regulation: the produce safety rule.

The rule is part of the Food Safety Modernization Act, a 2011 law that followed a wave of incidents involving food-borne illnesses. It imposes stricter controls across the board on food production and gives the FDA a bigger presence on the farm.

The FDA’s deputy commissioner for foods, Stephen Ostroff, said the agency gained extensive input from farmers, and it planned to continue working with them. “Our goal is not to add to their burden,” Ostroff said. “Our goal is to help them produce safe food.”

Farmers have been wary of the new rule because it takes many voluntary elements of food safety planning and codifies them.

Linnekin, the food lawyer and author of “Biting the Hands That Feed Us: How Fewer, Smarter Laws Would Make Our Food System More Sustainable,” predicted the new requirements would not lead to significant improvements in food safety.

“Instead, the result will likely be more of what we’ve experienced over the past few decades as regulations have ratcheted up,” he said. “More of our fruits and vegetables will be grown by large domestic producers who can afford to comply with the regulations — at the expense of smaller competitors — and by produce farmers abroad.”

Ostroff disputed that assessment. “We really want to work with farmers and point out areas they could improve,” he said.