Your Help Is Needed for Texas Farmers’ Markets

Published June 29, 2022

The Texas Department of State Health Services (DSHS) is proposing new rules that will impact your farmers’ market and farmers’ market vendors. The deadline for comments is Monday, July 11th, and we need your help to ensure that the new rules don’t create problems for our local food producers!

The proposed rules are in response to a very important bill that FARFA successfully advocated for during the last legislative session. SB 617 capped permit fees for those farmers and food producers that are required to have health department permits to sell directly to consumers at farmers’ markets. (Cottage food producers and farmers selling only raw, uncut vegetables and fruits were not impacted, as they are not required to have permits.) Instead of having to get separate permits for each market, and sometimes paying literally thousands of dollars in fees, the farmers’ market vendors are now able to get a single permit for $100 per year, which is good at any farmers’ market within a local jurisdiction.

SB 617 not only saves many food producers a lot in out-of-pocket fees, it also means less paperwork and hassle for our busy farmers and local food producers!

Now we’re at the stage of agency rulemaking to implement the new law. And there are some problems with DSHS’s proposal.

The biggest concern is that the agency may have created a loophole for aggressive local health departments to impose new permitting requirements! It’s rather complicated and requires understanding the underlying laws on permitting, but in brief: the agency included language that appears to be intended to ensure that local health departments apply the permit fee cap to all food vendors at a farmers’ market. But because of the way it is written, it could be interpreted by local health departments to mean that they can require a permit of ALL food vendors at a farmers’ market – even though there is no regulatory basis right now for requiring farmers selling uncut fruits and vegetables or cottage food producers to get a permit in the first place.

Are we being paranoid? Sadly, no. Since last session, we have been faced with local health departments all over the state who are looking for loopholes to impose higher fees or new permit requirements on farmers, market vendors, and cottage food producers. We need clear language in these new regulations.

We believe that DSHS’s intention was a good one: to ensure that local health departments apply the permit fee cap to all types of farmer and food producer vendors, as laid out in SB 617. But given local health departments’ actions in the last year, we need more precise language.

Less critical, but also problematic, is the agency’s elimination of the provision that individuals can make goods in their home kitchen to sell for religious or charitable bake sales. DSHS is instead relying on people’s ability to function as cottage food producers. But while we love our cottage food producers – after all, FARFA was key in getting the cottage food law passed and expanded! – it’s not appropriate to say that people can’t participate in their charitable bake sales without meeting the requirements of being a cottage food producer.

What now?

If you are a farmers market organizer, join us for a zoom meeting on Tuesday, July 5 at noon to discuss these issues in more depth. We want to know if you’ve spotted anything else in the proposed rules that needs to be changed or clarified. And we need your help to strategize on how to effectively protect our farmers markets in this process! 

If you are or know of a produce farmer or cottage food producer who has had an issue with a local health department requiring a permit when they shouldn’t have, let us know! Email or ask the affected producer to email Judith@FarmAndRanchFreedom.org with your name, what you produce, and what city/county required the permit. 

And if you are not a market manager and don’t know anyone who’s been personally impacted, please share this email with your farmers’ market manager in case they’re not on our distribution list! 

No matter who you are, if you want to protect your farmers’ market vendors, you can read the agency’s proposed rule at Proposed Rules Title 25 (state.tx.us). And watch for an action alert from us on July 6th with detailed guidance on how to submit your comments, which will be due by Monday, July 11th at 5 p.m.