Published July 6, 2022 [Updated July 8 with addition of Section 3, “Definition of ‘Farmer.'”
Time to get your comments in!
Thank you to the farmers’ market organizers who met with FARFA yesterday. We had a productive exchange about the issues their markets are facing and what they need in the new rules. The meeting gave us additional insight into what is happening on the ground and helped us refine our plans – and now it’s time for you to add your voice!
Background: FARFA fought hard for a bill (SB 617) that limits the amount of permit fees that a local health department can charge farmers or other food producers who sell at farmers’ markets. We also fought hard to establish and expand the ability for “cottage food producers” to make a wide range of foods in their home kitchens and sell without needing any permit. And even before our work, farmers selling uncut fruits and vegetables never needed a permit.
These local health departments are already trying to find loopholes around the permit fee cap, as well as blatantly flouting the law by telling cottage food producers and vegetable farmers that they must get permits. Note that it’s not all the health departments, or even a majority – but it’s multiple ones scattered across the state, who are clearly in communication with each other to encourage these improper practices.
And into this situation come the new proposed rules from the Department of State Health Services. The rules are a well-intentioned effort to implement the permit-fee cap bill. But they include language that the rogue local health departments will almost certainly misuse to get the opposite result, as well as to impose new permit requirements!
We need DSHS to revise the proposed rules so that they don’t add fuel to the fire with these problematic local health departments.
Email your comments to email@example.com by 5 p.m. on Monday, July 11.
Below is an outline of the comments that FARFA plans to submit. If you are a farmers’ market organizer or vendor, we encourage you to share any experience you have had in terms of your local health department misinterpreting state regulations (whether about the permit fee cap or other). This helps DSHS understand why it is so vital that the state agency write clear, unambiguous regulations.
And please send a copy of your comments to Judith@FarmAndRanchFreedom.org, so we can also share them with legislators at the right time.
If you are a consumer, or a farmer or market vendor who hasn’t faced such problems, take just a few minutes to email to share that you, too, support clear regulations that implement the law’s intent to help farmers’ markets thrive!
Note: these may change slightly over the next few days as we continue discussing the issues with our allies in and outside of the legislature. But the core substance will remain.
1. Definition of a “farmers’ market”
SB 617 defined a farmers’ market as “A designated location used for a recurring event at which a majority of the vendors are farmers or other food producers who sell food directly to consumers.” This definition partly grew out of numerous problems with local health departments that improperly applied the prior law too narrowly so as to exclude many of the farmers’ market and market vendors the legislators had intended to have included. We urge DSHS to keep that history in mind when proposing and finalizing these regulations.
The agency’s proposed rule adds the following requirement: “A farmers’ market must include vendors who meet the definition of “farmer” defined at §229.702(2) of this title (relating to Definitions) and may include vendors who meet the definition of “food producer” as defined at §229.702(6) of this title.”
FARFA does not object to this addition in general, since we agree that a farmers’ market must certainly have at least some farmer-vendors. To avoid confusion, however, the agency should specify that the market may also include other types of vendors besides farmers and food producers. Otherwise, if the rule specifies that markets may include farmers and food producers, but not mention any other type of vendors, some local jurisdictions may try to interpret it to be exclusive to that. Similarly, the agency should quantify how many farmer vendors are required as the minimum.
In addition, there has already been some confusion on the application of SB 617, with at least two jurisdictions stating that they intend to judge the status of markets on a weekly basis. These jurisdictions are contending that a market that normally has a majority of farmer and food producer vendors stops being a “farmers market” if, one week, not enough of the farmers or food vendors are present. The practical outcome of this misinterpretation is that vendors never know ahead of time if their $100 annual farmers’ market permit will cover them that week at the market, or if they will have to fill out paperwork and pay for a permit at the last moment because one of their fellow farmers can’t make it that week for whatever reason. This is not consistent with the language or intent of SB 617. Since farmers’ markets are, by definition, “recurring events,” their status should be judged based on their normal practice, not individual outliers.
Suggested language (FARFA’s addition highlighted in red):
“A farmers’ market must include at least two vendors who meet the definition of ‘farmer’ defined at §229.702(2) of this title (relating to Definitions) and may include vendors who meet the definition of “food producer” as defined at §229.702(6) of this title. A farmers’ market may also include other types of vendors, so long as the number of vendors who are farmers or food producers combined constitute a majority of the vendors who participate in the market during the year.”
2. Implementing the permit fee cap without expanding permitting
The proposed section 229.703 raises serious concerns. The current regulation states that DSHS or a local health department may issue a permit to a person who sells time/temperature controlled for safety food. This is consistent with the fact that people who are selling cottage foods or uncut fruits or vegetables do not need to obtain any permit.
Unfortunately, several local health departments have already been overreaching their authority and telling cottage food producers and vegetable farmers that they must obtain a permit – even though both categories are excluded from the definition of “retail food establishment.” Given this problem, the proposed rule will almost certainly be misinterpreted by some local departments as justification for requiring such permits. FARFA recognizes that this is not DSHS’ intention, but rather that the agency is trying to implement the permit fee cap from SB 617 for all producers who are required to get permits, consistent with the intent of the law. We thus propose the following language:
The department or the local health department may issue a permit to a farmer or food producer [person] who sells food [potentially hazardous food (time/temperature control for safety food)] at a farmers’ market to the extent authorized in statute or other regulation. This section does not create an independent basis for requiring a permit of a farmer or food producer. Regardless of what the permit is called, the following parameters from Texas Health and Safety Code §437.0065(c) apply. The permit:
- must be valid for a term of not less than one year;
- may impose an annual fee in an amount not to exceed $100.00 for issuance or renewal; and
- must cover sales at all farmers’ markets, farm stands, and farms within the jurisdiction of the permitting authority.
3. Definition of “farmer”
FARFA agrees with the concept underlying the proposed definition of “farmer,” but we again urge greater specificity and clarity.
The first area of ambiguity is what constitutes agricultural products. While this may seem obvious, we have previously heard government officials publicly state that raising fruits and vegetables doesn’t count as farming! We therefore urge the agency to list the wide range of items that are agricultural products.
The second concern is with the requirement that the farmer “control” the land on which the products are raised. While many farmers own or rent the land they operate on, which would constitute control, that is not the only model anymore. Many beekeepers, for instance, raise honey with beehives on other people’s land, which they in no way “control.” Some beginning farmers reach agreements with landowners to work the farm for the landowner, with the right to raise their own crops on some portion of the land. Multiple individuals may cooperate to establish a diversified farm, and not all may be designated to have “control” of the land. In brief, there are numerous arrangements under which people raise food from the land to sell to consumers – and the issue of control of the land does not bear on whether someone should qualify as a farmer who is selling crops they raised to consumers.
We thus proposed the following definition:
Farmer–A person or entity that produces agricultural products, including fruits, vegetables, fungi, grains, fiber, honey, dairy, meat, poultry, or eggs, by practice of the agricultural arts on land that the person or entity owns, rents, leases, or otherwise has legal access to.
3. Charitable “bake sale” provision
FARFA is concerned about the elimination of the provision for religious or charitable bake sale, since there may be people who wish to be involved in such without being a formal cottage food operation (which necessitates a food handlers license and specific labeling). We urge the agency to keep the religious/charitable exemption for home kitchens in defining what is not a retail food establishment.