Live Chat
05.17.2012
29
answers
GASTROGNOME Jason Foscolo
Attorney
Jason Foscolo LLC
Location Long Island, NY
Website www.jasonfoscolo.com
About Jason Foscolo was born and raised in Eastern Long Island, New York. The historic abundance of the island’s agricultural land inspired him to establish Jason Foscolo, LLC, a combination of his professional life and his deep passion for all things edible. Jason has worked with farmers and food entrepreneurs throughout the country, helping them to achieve greater market access through cooperative development, direct marketing guidance, food processing compliance, product liability law, trademark and collective certification programs, product labeling, and grant funding.
chat ended at 13:00 pm EDT
...but check out a recap below!
  • Q:
  • Here in California, there's been a lot of interest in creating easier regulation at the state level for cottage food industries. Any thoughts on the challenges of balancing accessibility and diversity of business models...with public health? I lean toward not living in fear and making it easier for micro-businesses. Any guidelines for knowing when or how to protect the public?
  • A:
  • I think accessibility can be achieved with strictly mandated food safety training before issuing any license to produce commercial sold food from the home kitchen. I know from experience that small scale producers do not take food safety seriously enough. If the law does not require it, I make sure my clients do anyway.
  • Q:
  • How can I protect my recipe before I get to a co-packer?
  • A:
  • Please reference previous answer to same question above!
  • Q:
  • Thank you so much for sharing your time and expertise with us!!!
  • A:
  • Thanks!
  • Q:
  • What type of legal agreements should I make sure to have for distribution?
  • A:
  • That depends. Are you a producer or a shipper? We are running out of time, so If I dont get your follow-up, reach out to me via my email this afternoon.
  • Q:
  • Hello there. The nature of your work is putting you into contact with people that are working really hard to change the food system. With all of this 'research', who are your idols in the food world? Whose work do you really admire?
  • A:
  • There are lots of individuals I admire. But do you know how Time Magazine's person of the year sometimes names a class of people as person of the year, like "TEACHERS"? I am going to cop-out like that right now. I love the weirdos, the innovators, and the entrepreneurs. I dig the graphic designer-cum-organic masa flour wacko, just rolling the dice on a totally new career and product. I believe that the small businesses will change the food system a dollar at a time, as they one by one convince consumers to switch from foods made unethically and anonymously to their own products.
  • Q:
  • Can you please address the challenge of "owning" one's formula even though a copacker may have done R&D? I have heard folks sometimes don't even know their final formula so if they switch copackers, they are at a huge disadvantage
  • A:
  • Excellent point. You have to put things this in writing during the negotiation with the copacker. The recipe is the most valuable thing about your product. It is a form of intellectual property and you can negotiate that your co-packer share it with you, not use it again for a competing product, or reveal its preparation technique to competitors. Think defensively.
  • Q:
  • Hi Jason. There's a lot of discussion around food labor issues these days (particularly regarding internships). People ask to intern on our farm - and while we could use the help and want to help educate people - it seems like a liability at the moment. Any advice?
  • A:
  • Be real careful with internships. If you are a business looking to bring on a few interns, I implore you to read this as a primer: http://www.dol.gov/whd/regs/compliance/whdfs71.pdf. Your state will also have its own rules to add on top of the Federal Department of Labor requirements, so check with your state department of labor as well.
  • Q:
  • If we're someone looking for inspiration . . . what areas of the food and ag sector have the easiest legistlative barriers to entry right now? i.e. if you were to start a food business, what would it be?
  • A:
  • The direct market for vegetables is not to crazy to get into, and good fresh veggies can actually be pretty profitable with the right Small Plot Intensive techniques. Candy is easy, too! Anything involving protein, dairy, eggs, or fat has a higher cost of entry.
  • Q:
  • You mentioned community kitchens in a previous question about culinary incubators. Have you had any experience working with a community kitchen as a business model that is similar to CSAs, where "members" sign up and purchase prepared foods (that they can reheat at home) on a weekly basis (much like getting a weekly produce box in a CSA)? I know a couple of places out there that are doing this, but am curious about how "profitable" a business like this is.
  • A:
  • Hmmm. Interesting. Sounds like a timeshare. I have not heard about this model, but I am intrigued. If you could send an example my way, I'd appreciate it.
  • Q:
  • There has been a lot of buzz around the issue of needing more meat processing facilities so that farmers don't have to send animals as far - and to make selling small quantities of meat more economically sustainable for all involved. What are the major barriers to making that happen, from the perspective of law?
  • A:
  • The regulatory process to start a new plant is lengthy. Of course. The regulatory requirements for a USDA facility are so extensive, start-up costs are very high, and believe it or not there are extravagant amounts of money to be made in animal slaughter. The capital costs absolutely favor larger plants which depend on volume from established protein giants like smithfield or tyson.
  • Q:
  • Where can I find co-packers that can handle the specific needs of my product?
  • A:
  • Google, and work that phone. Pick one that not only can make your product, but one that manages a safe, clean place. Ask them about their HACCP, food safety training, state of their equipment - everything. You are trusting them with your innovation and they should be willing to tell you all about the steps they take to ensure they produce something that is not only tasty but safe too.
  • Q:
  • How do you know when its time to get a copacker versus doing it yourself?
  • A:
  • From a risk management perspective, I am not a fan of home-based processing. Almost no homeowners insurance policy will cover casualties from commercial activity within the home. In my opinion, the co-packer is the first step you make after baking a few test-pies.  
  • Q:
  • Do you need to have FDA review of your product before you ship out of state? What about international?
  • A:
  • I can answer the second part easily. Our country makes it easy for us to export. Every country makes it easy to export actually. You will run into problems when the plane lands or the ship docks. That is when the laws and regulations of the other country are triggered. To complicated things further, match sticks, meat, socks, brooms, and hats all get a different import treatment. Best to get yourself an importer-exporter familiar with your product.
  • Q:
  • In the interest of getting on a lawyer's good side . . . what makes a really good client?
  • A:
  • No one has ever asked me that before (**Wipes single tear from cheek**) A good client is one that takes our advice. Not like I expect em to roll over and play dead - ask smart questions, but use us to make an informed decision.
  • Q:
  • Can you recommend a lawyer who understands co-packing agreements? And you can say yourself!
  • A:
  • Me! 
  • Q:
  • What advice do you have for someone who is thinking about starting a food business incubator/commercial kitchen rental space?
  • A:
  • Push all the liability onto the renter with a written agreement, without question. Also review the handling practices of people who rent your space, and make sure they are properly insured before they start making the food. Also, I have found that incubator kitchens are tough to maintain without an anchor tenant buying a big block of your capacity. Successful products leave their incubator behind in a hurry and move on to a co-packer that can handle increased volume. Community kitchens are tough to make money off of without at least a grant.
  • Q:
  • How can small food producers better market their products?
  • A:
  • I wish I knew marketing better. Sorry! 
  • Q:
  • When you collaborate with another company to create tangible resources, how do you protect your ownership of those resources from the get-go?
  • A:
  • If you mean things like trade secrets, your best best is to use non-disclosure agreements and non-compete agreements. Easy documents for an attorney to draw up.
  • Q:
  • For packaged food, in my case, candy, aka Pistachio Crack, at what point in development do I need to have it FDA ok'ed or have the nutrition value put on the package?
  • A:
  • Your label will definitely have to say "nuts" somewhere on it in big letter. It is one of the key allergens requiring prominent display on product labels. Not all labels require pre-approval or substantiation.  
  • Q:
  • What are your thoughts on getting insurance (for food poisoning etc) for small food producers? Necessity or not worth the cost of you're already taking precautions?
  • A:
  • Insurance is the most important thing you can have when making, growing, or handling food. This industry is governed by the rule of strict liability for anybody involved in processing or producing food. Essentially, that means if you put a food product into the stream of commerce in a dangerous or defective condition, you are liable for the consequences. It is a potentially limitless amount of risk for you, and insurance is a no brainer - pay the broker. Pathogens will always get through. Have the best HACCP plan you can devise, but be prepared for it to fail. (They often do).
  • Q:
  • I am having a hard time finding a lawyer who knows specifically about packaged food and the ins and outs. Any recommendations?
  • A:
  • Can I shamelessly self promote? Me. 

  • Q:
  • How much should I pay for the services of a food consultant versus a food lawyer? And how do I know which one I need?
  • A:
  • Sometimes a consultant might be able to give you perfectly valid compliance advice. For example, graphic designers who specialize in product labels will be able to tell you about the volumes of regs involved. Tough call sometimes, but that is the best answer I can give unless I can get a specific scenario. Sorry!

  • Q:
  • Hi Jason-This is Natasha from Chicago (spoke to Rich-thanks!). My question is, what are the challenges that you've encountered within the Food Law practice area, and what opportunities to see for growth within the field?
  • A:
  • Natasha! Hey! My biggest challenge is that I have no passive client flow like divorce attorneys or criminal law attorneys. When you need one of them, people just open the yellow pages or use google to find 50 in their area. "Food Law" is a blessing and a curse - I am doing something original, but in order to make it profitable I have to connect directly with the clients at trade shows, ag organizations, and through publishing in print and on my blog.
  • Q:
  • Hi, we're interested in starting a small farm in Pennsylvania and we are thinking about incorporating educational programs for both children and adults on the farm, which could include cooking classes and demos. How do we figure out what the legal requirements are (we would most likely be doing this as a for-profit business) Who do we talk to?
  • A:
  • Though I am not a PA attorney, you would most likely solve those issues in-house. What you are describing is agritourism, which is not regulated in many places. You would need to talk to an attorney to assess some of the risks of inviting kiddos onto your land around all those bitey animals and rusty things, especially if you own the land on which you will host these activities.
  • Q:
  • What advice do you have for a recent graduate interested in food law but uncertain about the merits of law school? What other ways can young adults become involved in food law without a law degree? Can you recommend any organizations? Thank you.
  • A:
  • It is a tough time to go to law school. The market is truly and utterly saturated with available lawyers. Food law is such a niche, developing area of law that a multitude of job opportunities have yet to flower within the field, so there might not be much security in that either. THink long and hard about going to law school. Unless you have experience, unless the law is in your bones, pass. Young adults have other avenues into food law they can pursue without the law school investment. Legislation, for example. Every state legislature in the country has a ag committee that needs staffers. That would be a superb place to start. 
  • Q:
  • What's your advice for lawyers in a traditional corporate practice to transition to "food law"?
  • A:
  • Transitioning into food law is tough. Several Upper Midwest firms specialize in ag law for those who want to make a lateral move. If one were so inclined to strike-out on his or her own, there is really no place to go for on the job training. Further education is a necessity. I transitioned into this field after attending the Agricultural and Food Law Program at the University of Arkansas School of Law. Best professional decision I ever made - couldn't do my job without having attended. Can't speak highly enough of the curriculum or the faculty. 
  • Q:
  • Just so we're all on the same page . . . what's a reasonable rate for legal fees in a new business?
  • A:
  • That depends on the company structure you are picking. Non-profits are tough, and require lots of time to set up. For a straight-up LLC, provided that you are certain an LLC is the right format you need and you do not have partners or anyone else in the mix, Legalzoom might suffice. 
  • Q:
  • As a start-up, do you think it's important to have a lawyer from the get-go? It seems like a hefty investment and I want to make sure it's worth while.
  • A:
  • Don't start any business without legal guidance, but it is particularly important not to start a food business without trying to find someone who knows the industry. It is an investment, and it should be figured into your business plan right from the start. A solid legal foundation will be important especially to potential investors.Though the investment is significant, you also need to look for an attorney with a sensible billing practice. Legal expenses for a startup shouldn't be too outrageous if you find the right counsel.
  • Q:
  • I appreciate your expertise but I live across the country. Is there a place where you food and ag lawyers exchange ideas and info? I'd love to learn about who you admire who is doing this across the country?
  • A:
  • The American Agricultural Law Association is a well-organized and respected professional organization with about 1,000 members. Though the core of the professionals who are members come from an industrial agriculture background, it is starting to shift some focus onto smaller, innovative producers. Informally, the few small scale ag law attorneys keep in touch regularly through email and social networking to share ideas, practice tips, and such.

Post a Job

Jobs

Resources

Connect

Company

Get Mail

make your tuesdays brighter with our weekly dose of inspiration
You are currently signed in, but you won't be able to view how to apply
to the job or post jobs until you follow the link in your confirmation email.
Please check your email to confirm.
Please check your email to confirm your registration.
(You will not be able to view how to apply to the jobs until you follow this step)

Never received a confirmation email?
Click here and we'll send you another!
(If you're tired of us already, click here
to unsubscribe)
Your session is about to timeout.
Save your hard work as a draft from the
Preview page, or Proceed to Checkout
(and cross 'find an awesome new employee' off your to-do-list).
0.0915 | 2.44MB | 5 DB