The City Council of Plano, Texas has adopted a new health ordinance that effectively kills any chance of a farmers’ market operating in the city, while promising to convene a committee to recommend ways to amend the ordinance to make farmers’ markets possible. The council voted unanimously to imposes extensive new restrictions on farmers’ markets, including mandatory permanent refrigeration units. In other words, the new ordinance treats farmers’ markets as if they were supermarkets. See article in EatGreenDFW for more details.

Below is a letter that FARFA sent to the Plano City Attorney, Diane Wetherbee, on December 3, 2012:

Dear Ms. Wetherbee:

I am writing to alert you to a problem with the City of Plano’s recently adopted ordinance governing farmers’ markets.

My organization, the Farm and Ranch Freedom Alliance, is a national organization, based in Texas, that supports independent family farmers and protects a healthy and productive food supply for American consumers. FARFA promotes common sense policies for local, diversified agricultural systems.

In the 2011 legislative session, FARFA worked on provisions in SB 81 to make it easier for local food producers to high quality foods to interested consumers. One of the provisions in SB 81 explicitly forbids local governments from mandating the method by which farmers maintain safe temperatures at farmers’ markets. In other words, while Plano can require that farmers keep potentially hazardous foods cold (or frozen, as appropriate), the City cannot require mechanical refrigeration.

The language of the statute is clear:

Sec. 437.0201. REGULATION OF FOOD AT FARMERS’ MARKETS UNDER TEMPORARY FOOD ESTABLISHMENT PERMITS. (a) In this section, “farmers’ market” means a designated location used primarily for the distribution and sale directly to consumers of food products by farmers or other producers.
…
Sec. 437.0202. TEMPERATURE REQUIREMENTS FOR FOOD AT FARMERS’ MARKETS. (a) In this section, “farmers’ market” has the meaning assigned by Section 437.0201.
(b) The executive commissioner by rule may adopt temperature requirements for food sold at, prepared on-site at, or transported to or from a farmers’ market under Section 437.020 or 437.0201. Food prepared on-site at a farmers’ market may be sold or distributed at the farmers’ market only if the food is prepared in compliance with the temperature requirements adopted under this section.
(c) Except as provided by Subsection (d), the executive commissioner or a state or local enforcement agency may not mandate a specific method for complying with the temperature control requirements adopted under Subsection (b).
…

The City’s recent classification of farmers’ markets as food establishments does not override the provisions of the Texas Health & Safety Code quoted above. If an establishment meets the definition of a farmers’ market in the state statute, then it is protected.

This Texas law is consistent with standards nationally. According to a study from the Harvard Food law and Policy Clinic, all ten states that it examined had either performance-based standards (i.e. the method of maintaining temperatures was left entirely to the farmer) or, at the least, allowed for options that included coolers and ice rather than mechanical refrigeration. California, which has over 800 farmer’s markets, requires only that food be kept at safe temperatures, without mandating how those temperatures are maintained.

The other new regulatory requirements that the City seeks to impose also go against the trend, both in Teas and nationally, to promote local farmers’ markets. Indeed, the Harvard study found that several states barred local authorities from adopting more stringent food safety laws on farmers’ markets. The study went on to recommend that all states should do so, or allow local authorities to allow jurisdiction to enact less stringent requirements only.

There are over 100 certified farmers’ markets in Texas, and there has yet to be a single case of foodborne illness traced to any of them. Yet since 1998, there have been over 16,000 cases of foodborne illness reported in this state. While not all foodborne illnesses are reported, it’s apparent that Texans do report many such illnesses, yet none have come from the farmers’ markets. The City’s decision to impose new, extensive regulations on farmers’ markets is not supported by any rational basis.

I urge you to repeal or amend the farmers’ market ordinance so as to comply with state law and implement rational, fact-based policies.

Sincerely,

Judith McGeary, Esq.
Executive Director, Farm and Ranch Freedom Alliance

References:

1. http://search.ams.usda.gov/farmersmarkets 
2. See Rosenberg, N. and E. Leib, Pennsylvania’s Chapter 57 and Its Effects on Farmers Markets, Harvard Food Law and Policy Clinic (Aug. 2012) (attached)
3. http://wwwn.cdc.gov/foodborneoutbreaks/default.aspx