Which came first: the chicken or the egg? That is a difficult question to answer. But when it comes to who has the governmental authority to regulate an industry, the law is supposed to make that question an easy one to answer. When it comes to who can sell chicken to restaurants in Indiana, that answer is apparently harder to find.
When Zach Hawkins decided he wanted to make a living as an Indiana farmer in 2013, his dad, Jeff Hawkins, was at a crossroads. The Lutheran minister — who had once found the same type of spiritual cultivation on the farm as he had in his congregations — was beginning to think about the future of the Hawkins family farm. Retirement was on the horizon and scaling back operations was under consideration. Cultivating the land, growing produce, raising livestock, and sharing the harvests of their labor had been a part of the family's history for six generations. However no one in the family had been completely committed to the family farm for total livelihood. As Jeff was considering scaling back, Zach was contemplating a total commitment to the Hawkins farm.
One thing that Jeff quickly realized, however, was that if the farm was going to be Zach's livelihood for him and his family, the operation was going to have to up its game.
The Hawkins farm, located in North Manchester, operates an on-farm store offering seasonal vegetables, fresh eggs, and frozen meats — pork, beef, chicken and turkey products. It is also a community-supported agriculture farm (CSA), which allows growers and consumers to share in the risks and the benefits of farming and locally grown produce and meats. Participants receive a box of farm goods once a week. In a perfect world, those ventures are only enough for a family farm to break even. However the world is far from perfect and Jeff and Zach knew they would have to venture into new territory in order to be viable as a sustaining business.
One potential for diversification came in 2014, courtesy of the state legislature.
"There were some changes in the law that loosened up some of the processing of chicken availability for farmer's markets and roadside stands," says Jeff. "After that I started to inquire does this apply to us, in what way, and does it open up for us to sell to restaurants?"
Jeff sought the answers to those questions from the State Board of Animal Health (BOAH), the government entity that oversees livestock operations for the state. It was through BOAH that Jeff learned the new rule didn't particularly apply to their situation, but that their family operation could qualify for exemption status under the federal Poultry Products Inspection Act (PPIA), which is the guideline for the country on poultry processing.
The PPIA requires all poultry — whose final destination is to be human food — be slaughtered and processed in a facility with continuous inspection, or rather an inspector looks at all birds before and after it is slaughtered. The U.S. Department of Agriculture maintains a food inspection program through the Food Safety and Inspection Service that maintains inspectors all over the country in processing facilities. Twenty-five states have a state inspection program — Indiana utilizes BOAH inspectors.
However, the PPIA also has an exemption program for smaller farms and enterprises. A typical large poultry processing plant might produce 200,000 chickens per day. The exemption establishes guidelines for producers that are only processing 20,000 chickens or less per year. Hawkins Family Farm averages about 4,000 chickens per year.
The federal exemption status allows small processors to forgo having an inspector on the premises all day every day to look at every single bird antemortem and post mortem, however they do have to adhere to a stringent set of regulations regarding sanitation, facilities, recordkeeping, and other standards. The facility must also be inspected at least twice a year and all products must have a specific label indicating it was processed at an exempt facility. But also according to the federal exemption rules, producers and growers under this exemption in certain categories could in fact sell to retail stores, distributors, hotels, institutions and restaurants within state lines only.
With some guidance from BOAH, Jeff and Zach developed their processing facility in adherence to the strict standards outlined in the exemption guidelines. "We did our due diligence," says Jeff. "I constantly asked, 'Now this says we can do this, right?' and they said yes. The Board of Animal Health to their credit really worked with us well."
BOAH conducted the biannual inspection and signed off on the facility. The Hawkins men were on their way to beginning to sell their chickens to restaurant.
A farm-to-fork restaurant in Roanoke, Indiana became the first customer of the Hawkins chicken. The problems began, however, when the Indiana State Department of Health (ISDH) got involved.
"It has been their custom to not allow anything but officially inspected poultry to be sold to restaurants and for restaurants to buy it," says Jeff. "So they said, 'you can't do this.'"
That began a back and forth discussion of "Yes-I-can/Oh-no-you-can't " with the ISDH. Jeff cited the exemption under which he was operating and the seal of approval from the BOAH. The ISDH claimed it was still illegal and demanded the Hawkins stop selling their chicken to restaurants. Jeff researched the law, combing through Indiana code to find where it said he was out of line, but couldn't find it. When he asked for ISDH to provide the statute, no one there could find it either.
According to Jeff, the exemption under which his farm operates had not been utilized on Indiana for decades. Despite its 45-year existence there was no mechanism for farmers to learn about it and apply for it, so no one had — until the Hawkins did in 2014. But regardless of inactivity, the law remains valid.
On the ISDH website under the Food Protection section tab is a link to a .pdf titled "Mark Guide – Animal Products." All of the information provided there indicates the BOAH is responsible for all animal products processed and sold for human consumption, including poultry. Nowhere does it say that the ISDH has the authority to intervene in the sale of animal products.
Sen. Jean Leising, (R-Oldenburg), got involved in the discussion on the issue when she was contacted about the issue by Sen. Amanda Banks (R-Columbia City).
"[Sen. Amanda Banks] said that she had a restaurant in her district that wanted some language changed in the department of health code and statute in Indiana," says Leising. "Because she had a farmer that wanted to sell uninspected chicken to major restaurants and they wanted a language change in our current state code."
Leising told Banks no and went on to investigate the situation herself.
"I'm a farmer and I do everything I can to promote agriculture of all sizes, but I said I'm also an old nurse and I can't do anything that would jeopardize food safety," says Leising.
The issue became the subject of an interim study committee on agriculture and natural resources where Jeff Hawkins and Pete Eshelman, owner of Joseph Decuis restaurant in Roanoke, were able to present their case — illustrating the value of the farmer-restaurateur relationship, the safety and security involved in the process and the legal statutes under which they were operating. The other agencies involved testified as well.
"Out of turn she called back the Board of Animal Health and chastised them asking, 'How could you do this? How could you allow them to do something that is illegal?' and they testified that they followed the law. She didn't hear any of that."
Jeff says Leising came back to the committee meeting the following day claiming the practice was illegal according to ISDH — a few days later Jeff received a cease-and-desist order to stop selling Hawkins chicken to restaurants.
Ultimately the Attorney General's office got involved, at the request of Sen. Banks on behalf of Hawkins farm, to provide clarification of the laws and statutes involved. When the AG's office issued an advisory opinion stating that the interpretation of the law by the farm and the BOAH was accurate and that the ISDH had no jurisdiction, the cease-and-desist order was rescinded.
Two bills were proposed this year, one in the Senate and one in the House, to close what Leising believes is a loophole in the law. Senate Bill 71 would have prohibited restaurants from serving poultry from operations that are exempt from antemortem and postmortem inspections and prohibited exempt operations from selling to restaurants. That bill died in committee. House Bill 1267, which is still active, would give ISDH new authority over food inspection and processing while prohibiting restaurants from selling and meat, including poultry, that has not been inspected antemortem and postmortem under a state inspection program. The legislation is currently assigned to the same committee where SB 71 died.
Leising is convinced allowing exempt processing facilities to sell to restaurants presents a food safety risk. Leising could not provide any specific instances where food safety was an issue and there is no evidence of any problems in other states. She also believes that the farm-to-table movement isn't as strong as it thinks it is. While attending a conference in Denver last month , Leising spent time with a bakery manufacturer that provides buns to McDonald's restaurants. The marketing manager shared his thoughts on the farm-to-table movement.
"He said that this new modern movement is led by 6 percent of the population. They had done some extensive research on it because obviously they have a big business and they want to know," says Leising. "And then he said that 20 percent of the population follows those 6 percent leaders of the movement and that leaves 74 percent of us just planning on having a quick lunch today in the middle of our work day and we know we're going to be eating safe food because we live in the United States. I know when I travel, that isn't always the case."
However in Indiana, the farm-to-table movement is growing and farmers, restaurateurs and consumers are interested.
"Chefs and farmers are after a common goal to create the best food possible," said Alan Sternberg, executive chef at Cerulean in Indianapolis. "Legislators need to help the foodway systems in our country because promoting direct foodways creates a healthier societal dynamic. It allows people access to a diverse arrangement of nutrient-dense foods and creates a more sustainable livelihood for farmers. Real reform needs to come in the form of subsidizing farms that are good stewards."
Cerulean is one of many farm-to-fork restaurants that are supporting Hawkins farm and their legal right to sell their chicken to restaurants. Ten restaurants in Indianapolis and northern Indiana are buying and serving Hawkins chicken.
110 Craft Meatery Warsaw, IN
Cerulean Indianapolis, IN
Cerulean Winona Lake, IN
The Golden Fort Wayne, IN
Joseph Decuis Roanoke, IN
Kenapocomocha North Manchester, IN
Light Rail Café Village Café Winona Lake, IN
Milktooth Indianapolis, IN
Public Greens Urban Kitchen Indianapolis, IN
Rook Indianapolis, IN
As described by the National Research Council Committee on Public Health Risk Assessment of Poultry Inspection Programs, antemortem inspection "refers to the examination of live poultry to detect signs of disease. The USDA inspector observes the flocks between the time they arrive at the slaughtering plant and the time birds are hung on the slaughtering line. Because antemortem inspection is discretionary, it is conducted not bird by bird but on samples selected from flocks or groups of birds in their crates."
Often referred to as "bird-by-bird" inspection, this refers to the postmortem appraisal of carcasses on the slaughter line. The examination is organoleptic, which means inspectors use their senses of sight, touch, and smell to assess each bird (some people call it the "poke-and-sniff" test). Inspectors look for lesions, tumors, bruising, imperfections, and other signs of damage or disease. Regulations allow inspectors to review up to 35 chickens per minute, which can give them only seconds to do all this work on fast-moving lines. Even if they are given more time, however, inspectors using traditional "bird-by-bird" procedures are not able to detect the presence of salmonella and other pathogenic microorganisms. Microbes are not visible to the naked eye.
Part of the controversy over this issue has to do with the verbage used to describe it.
According to Sen. Leising, the poultry from the Hawkins Family Farm is uninspected. While it is true that the chicken is not subject to antemortem and postmortem inspection, the farm is and its facility is under federal regulations for operation and the facility is inspected twice a year.
According to Zach and Jeff Hawkins, their farm is an "exempt operation" and their chicken is labeled as such. That means their facility is exempt from the "bird-by-bird" inspection requirement, but still operates under federal regulation.