What do you get when you cross Green, as in Green Markets – those emergent farmer’s and craftspeople’s markets that have given life to local food – with Black or Grey Markets – ie, illegal sales? Khaki is the color you get, and you get what I call “Khaki Markets” – the growing trend towards producing food, toiletries and other regulated substances outside of regulation. It is a hugely growing trend, from unlicensed sale of everything from produce to herbs to illegal raw milk sales to gourmet restaurants operating out of old school buses and people’s apartments. Indeed, there are whole “mobile local markets” that rotate and spread by internet and word of mouth in many cities designed to encourage unlicensed producers and to expand local food markets. Khaki Markets aren’t just growing, they are trendy.

While I’m sure some of my readers are horrified that anyone would sell anything food related without a license and a triple sink, and some are equally horrified by the idea that anyone would attempt in any way to regulate food or drugs, let us assume that most of us operate somewhere in the middle ground here, recognizing there is a case on both sides. Food regulation, in the US the USDA and FDA did not arise for no reason. The spread of diseases through milk, including tuberculosis, the replacement of flour with plaster and beans with stones, the contamination of foods not kept at stable temperatures, patent medicines that did no good and plenty of harm – these are real parts of our history, and the regulation of food and toiletries arose for compelling reasons. Some of our ability to critique what has arisen derives precisely because we have been made safer.

On the other hand, it is also obviously the case that the methods of assuring safety used have come to dramatically favor the large, the corporate and the industrialized, and to shift us over to other, equally serious dangers. The hundred-cow industrial hamburger is not safer than the home-slaughtered cow, as we all know – but the single cow beef producer experiences an economic and regulatory burden that is disproportionately hard on them, compared to the hundred cow burger maker. The choice to focus on technological solutions (large scale pasteurization, bulk tanks, etc…) to the problem of milk safety, for example, makes dairying a marginal activity for all but the largest producers and doesn’t produce milk any safer than regular inspection of raw dairies, as is used in Europe. While making cheese at home can be risky, and you might want to be able to track cheese back to its source, baking bread at home, unless you have a special source for ergot contamination of your wheat is pretty much harmless – there is no reason to regulate it. All food is not equally pathogen-friendly.

The regulations themselves, begun in some cases with the best of intentions, have become in many cases as much or more a tool for keeping people out of markets than for actual prevention of illness or unfair practice. We know from the large companies themselves that their supply chains in this industrial era are so spread, and so vulnerable to contamination, that Kelloggs executives at Congressional Hearings acknowledged that there was no real way to ensure food safety, reliant as they were on world-scale ingredients. They asked that congress regulate the supply chains to ensure greater food safety – but the other answer is to support and endorse producers who don’t get flavor ingredients from China and India.

All of the battle between the needs of small producers and local eaters and industrial agriculture might be a minor thing, were it not for the fact that the emergent local food systems that are growing here may well be precisely what is needed in a society that neither has (resource depletion) nor can use (climate change) nor can afford to use (the economic consequences of the above, plus a bunch of other stuff ;-)) the kinds of resource intensive, environmentally destructive agriculture we have been. What happens if the thing you most need is also illegal?

Well, we have a pretty good idea what happens. We know, for example, that Novella Carpenter’s small urban farm was shut down because she didn’t have a $2500 conditional use permit (that she doesn’t make that much in a year farming doesn’t seem to be relevant) to grow chard and eggs in an area where there are regular drug shootings. Good the city is right on top of that chard-growing thing! Moreover, the city pushed it to the point of a threat to evict her from her home as well, even though most of her activities are for home use. Kind people eventually paid for her permit, but that’s because she’s famous for her book _Farm City_. What about the non-famous farmers?

We also know that the laws have are being strengthened in favor of those who prioritize industrial food – for example, the Food Safety and Modernization Act includes this:

Previously, the FDA’s ability to detain food products applied only when the agency had credible evidence that a food product presented was contaminated or mislabeled in a way that presented a threat of serious adverse health consequences or death to humans or animals.

Beginning July, the FDA will be able to detain food products that it has reason to believe are adulterated or misbranded for up to 30 days, if needed, to ensure they are kept out of the marketplace. The products will be kept out of the marketplace while the agency determines whether an enforcement action such as seizure or federal injunction against distribution of the product in commerce, is necessary.

That is, the FDA no longer needs “credible evidence” – it just needs an unfounded accusation or misunderstanding or any other “reason to believe” to impound agricultural products for 30 days. Since a farmer with a main crop can be impoverished by 30 days holding – many agricultural products are unsalable and unsafe after 30 days – this strengthening of power is a real threat to the livelihood of small farmers. It remains to see how this will be used, but that’s not the point – the point is that the right of authorities to regulate in the absence of any evidence or indication of disease is a burden that will be hard for small producers to bear.

At the same time that hostility towards small-scale illicit agriculture is emerging at every regulatory level, opposition is also rising. Competent adults are frustrated that they can buy cigarettes, but not peppers from an unlicensed farm stand. Home cooks who could make a living from their kitchens are frustrated that they need a 10K remodel to bake muffins to sell next door. Farmers who can raise milk to pasteurization temperature in a double boiler need a 100K dairy in order to sell their milk – even though European evidence suggests that their milk may be safer than milk commingled in a bulk tank. More and more people ignore the laws they recognize as biased in favor of large industrial corporations and destructive to the kind of agriculture and food system they both want and need.

So what emerges are more private food coops, more cow-shares, more illegal milk and egg sales, more home-based restaurants and unlicensed establishments. And more raids, more crackdowns, more public prosecutions – but of course, none of these things can keep up with the desire for good food. And along with them arises the question – to what extent is this in anyone’s interest?

We know for a fact that in a lower energy societies, small farmers feed everyone. In fact, 85% of the whole world’s farms, producing more than half of the world’s total food crops are small farms of less than 5 hectares. We have seen in the former Soviet Union and in Cuba among other places that large scale agricultural industrialization is not viable with fossil fuel disruptions. That is, the food system that is emerging on the wrong side of the law, the outlaw Khaki markets are precisely what we need to feed us.

At the same time, no one wants to go back to the days of transmitting disease regularly through food. Farmers and bakers argue that cheating your customers is bad business, and safety is important – but we also do need to be able to track outbreaks to their sources. The increasing hostility to khaki food markets serves no one – the implicit assumption is that if they just crack down, they will go away. But not only will they not – indeed, active resistance is growing precisely in response to these crackdowns, but they should not. The system that is emergent meets both the needs of present consumers who can’t find higher quality food in the industrial system, the needs of producers who need to make a living, and also the needs of the future.

The shadow system that is building in response to growing demand for local food is not going to go away – one of the things about food trends is that they mostly don’t disappear, but rather, get rolled into the future. So, for example the basil and fresh mozzarella of the 1980s are still there – accompanied by the asian veggies of the 1990s, and the kohlrabi and roots of the contemporary food era. Food trends build, they don’t disappear.

More importantly, food independence is a cause that crosses political lines – the right to choose what you should eat, the right to be innocent of causing harm until proven guilty, the right for consenting adults to eat what they want to – these things appeal on both right and left, and for that reason are likely to endure and build. Most of us can see that the prohibition on urban chickens is bizarre in a context that permits your city neighbor to have a barking dog the size of a pony whose manures are far more dangerous than that of any chicken. Most of us can recognize that a society that permits smoking, the sale of mountain dew and significant levels of fecal bacteria in your burger may have a little loss of perspective when they try to tell you not to eat pastured eggs or home-baked bread. Those inconsistencies matter.

There are two choices here – the first is that we waste time and resources at the town, state and federal level, create legal conflicts, drive a few farmers out of business, shut down a few markets and drive them further underground, while raising the level of anger and hostility towards government. The second is that we begin to evolve an open system that gives support and primacy to the kind of agriculture we need now and in the future. One model for this would be my own suggested “urban right to farm laws” which could be enacted by municipalities to override bans on things like backyard chickens, front yard gardens, open clotheslines and small-scale residental businesses. Building on the model of right-to-farm laws enacted since the 1970s in rural areas, they prohibit nuisance lawsuits and save everyone the trouble of fighting out each chicken and garden related battle by itself.

There are other models that can and should be supported at the state and federal level – and those of us who engage in small scale production will need to also support the larger goal of a safe food system – we can’t cheat. That is, we’re going to have to self-test for bacteria levels, sell honestly, give fair weight and track our own sales so that we can legitimately argue that our system is just as safe as any other. If we don’t self-regulate, others will do it for us.

Right now, we’re set up for scorched earth battle between the consumers and producers of small-scale, natural homegrown food and regulators of food safety – both of whom often want the same good things – good food, good health. This battle serves no one – and in the end, it is a losing battle for those who support the present model and also want to see less food borne illness. The more you push it underground, the harder it is to address the real issues. The less free we are to be honest, the more lies there will be. The more we undercut those want to do the most ordinary things in the world – feed themselves, feed their neighbors – the worse the harm will be. Moreover, the anger and rebellion growing from people who simply want to eat as they choose is far larger than any agency budget or regulatory power.

If the two fight to the death, the small scale food economy and khaki markets will win, but at a higher price than anyone wants them to pay. Again, this is precisely the food system that towns and counties and states may have to rely on in more difficult times – the cost of farmers fined out of business and of potential participants scared off is too high. The better system would be to work in concert, to build a regulatory system that focuses not on means and technologies – not on whether you have a 20K pasteurizer – but on whether you can produce milk that is safe to drink; not on whether you have three sinks but on whether your jam is safe to eat. A shift from ends to means would serve us all – and shift khaki back to green.