What You’ll Learn Here

  • The Importance of Farmers’ Markets
  • How a Typical Farmers’ Market Operates
  • Issues Addressed in Farmers’ Market Regulations
  • The Role of the Market Manager
  • The Role of USDA’s Farmers’ Market Nutrition Program
  • Legal Issues Involved in Operating a Farmers’ Market
  • What to Consider When Joining a Farmers’ Market
  • Farmers’ Markets and Liability

There is little question about it – farmers markets are hot!  Consumers love to visit them, city officials love what they add to city life, and thousands of small farmers find them perhaps the most effective and low cost way to direct market farm products.  The USDA’s Farmers Market directory in 2013 shows the number of farmers markets in the U.S. at over 8,100 now in existence. This number has more than tripled in size since the “Legal Guide” was originally published in 1999.

Farmers markets typically are simple in organization and very straightforward in operation, but there are important issues which can arise in connection with farmers markets.  This chapter takes a closer look at many of the legal issues related to farmers markets.  It includes a discussion of how to organize a market, the role played by the market manager, the rights and obligations of farmers selling at the market, and questions such as how farm liability insurance relates to activities at the market.  The chapter provides examples of farmers market regulations and vendor agreements and examines the relatively few court cases which have dealt with issues such as enforcing market rules involving accidents at markets.

Considering the Importance of Farmers Markets

Farmers markets are one of the most important components of direct farm marketing for several simple reasons:

  • Farmers markets are easy to organize and operate, meaning city officials, farmers, churches, schools – just about anyone – can start a farmers market, if there are customers to support it;
  • Farmers markets are generally located close to participating farms, which minimizes the distance and travel required and which increases the freshness of the products offered;
  • Farmers markets provide farmers with direct access to large numbers of interested customers, who are motivated to support the local food economy;
  • Farmers markets offer a low-cost retail outlet for producers, with market fees typically of just a few dollars a day to participate;
  • Farmers markets provide a seasonal market for producers with specialized crops which are only marketed for a few weeks;
  • Farmers markets offer consumers direct access to high quality, locally grown produce and other foods, at prices which are often less than in other retail outlets;
  • Farmers markets give producers a way to make contact with customers who can also visit their farms and who can buy products directly during periods when the markets are not open;

While most farmers markets have a set of regulations, they are typically very informal and friendly places to do business without a great deal of red-tape.

The list of attributes could go on, but you get the idea.  Farmers markets are experiencing a revival because they just plain make sense – for farmers, for consumers, for cities and towns, and for the nation.

How a Typical Farmers Market Operates

There may not be such a thing as a typical farmers market, because they can vary in size from four vendors in a local park to hundreds of vendors and thousands of customers taking over the downtown of a major city.  But regardless of the size of the market there are some common features in how they operate, including the following:

  • there will be a set of regulations, developed by whoever is sponsoring the market, which vendors must agree to follow,
  • vendors will be required to sign an agreement concerning their participation in the market, whereby they agree to follow the rules,
  • vendors will pay a market fee on a daily or seasonal basis, and
  • there will be a market manager, who is responsible for running the market and enforcing the rules.

The primary purpose of the rules is to help the people sponsoring the market carryout these three goals:

  • create opportunities for local farmers to sell their products,
  • create a place where consumers can buy the foods they want from the people who raise it, and
  • create an enforceable mechanism for insuring the integrity of the   market.

Issues Addressed in Farmers Market Regulations

Farmers market regulations can vary from very general to lengthy legal agreements.  The regulations deal with the type of issues you would expect.  Most typically they include lists of what products can be sold, rules on parking, rules on displaying products, and requirements to clean up the stalls when the market is over.  The rules will usually deal with questions such as obtaining necessary permits for the products being sold, collecting sales tax if required by the state, and having liability insurance in case of accidents.  While no set of rules is necessarily representative, the rules from the main farmers market in my city, which are set out in the accompanying box, are a good illustration of farmers market regulations.

Regulations Applying to the Des Moines Farmers Market
In Des Moines, Iowa a popular and successful downtown farmers market operates every Saturday from early May until the end of October.  On a typical Saturday over 120 vendors sell their goods from 7:00 a.m. until noon.  The following regulations used at the market, illustrate the terms under which vendors operate.  The rules were developed by the Downtown Partnership, the legal entity sponsoring the market,  and by signing the contract to participate in the market, a vendor agrees to be bound by the rules.

Downtown Farmers Market Rules and Regulations Governing the Sale of Goods at the Downtown Farmers Market

1. It is the responsibility of every vendor to know if they are required to collect and remit Iowa Sales Tax.

2. Out-of-state retailers or any other vendors who are not regularly engaged in selling at retail and who do not have a permanent place of business must collect and remit sales tax on a non-permit basis.  Questions regarding sales tax can be made to Robert Porter with the Iowa Department of Revenue, Ottumwa office for Special Events, telephone 515/684-9074.

3. For USDA SNAP information and/or an application, please telephone the Federal Department of Agriculture, 515/284-4035.

4. Food, food producing plants and seeds may be purchased with SNAP.

5. Individual vendors are responsible for obtaining all licenses and/or permits required by the Polk County Public Health Department and the State of Iowa.  Copies of all licenses/permits must be on file with the Downtown Partnership prior to selling at the Downtown Farmers Market.

6. The Downtown Partnership, Inc. reserves the right to refuse acceptance or any vendor or item that is not in keeping with the rules or quality of the Downtown Farmers Market.

7. Vendors selling Iowa homegrown or homemade products will receive first preference.

8. One vehicle only per stall, no exceptions.  No vehicle may extend beyond the given stall area.  All other vehicles must be removed from the immediate Market premises.  Vehicles from which goods are sold must meet the Partnership standards of cleanliness (no rusted out, unpainted, visually objectionable vehicles, and/or bad odors) will be allowed.

9. Vendors furnish their own tables, chairs, brooms, dustpans and garbage removal.

10. Vendors are responsible for cleaning their stalls at the end of each Market Day; garbage must be removed from the Market.  Garbage MAY NOT be placed in any City trash bin.  Failure to meet these standards is a rule violation.  If a stall is left dirty, a $30 fine will be assessed and must be paid before the vendor will be allowed to participate in the Market again!

11. Respect other vendors & Downtown Farmers Market customers.  Profanity, yelling and/or heckling will not be tolerated.

12. Vendors may not sublet space.  The Downtown Partnership, Inc. retains the right to approve and facilitate all arrangements pertaining to subletting space.

The Downtown Partnership, Inc. will enforce all rules and regulations.  Disregard for any Downtown Farmers Market rules or WIC regulations will cause action to be taken.  Downtown Partnership, Inc. retains the right to fine or prohibit a vendor from participating in the Market, with a refund, if rules are broken.

The rules set out in the box provide many answers about how the market is to operate and who is responsible for different matters.  By setting out the rights and obligations of vendors who participate in the market, the regulations help create a smooth running market.  Unlike many farmers markets, the Des Moines market rules do not limit vendors to selling only foods they produce themselves.  This means the market includes both farmers selling locally raised food in season and wholesale peddlers selling produce grown anywhere.  “Producer only” markets – those which limit vendors to selling only goods they have produced themselves – are more common and reflect the truest form of farmers market.  In those cases, the market rules will clearly state what producers can and can not sell.

The Role of the Market Manager

The farmers market regulations will answer many issues which arise, but not necessarily all of them.   For example the Des Moines market rules don’t answer such questions as what procedure will be followed if there is a dispute over enforcing a rule or how the priority for locally grown product will be implemented.  In most markets the responsibility for making these decisions will rest with the person known as the market manager.  The market manager is typically employed by the sponsor of the market or is a volunteer with the sponsoring agency.  The manager could be a public employee, a local volunteer, or even someone hired by the vendor association, if one exists.  The market manager’s job includes:

  • registering vendors to sell at the market, which often includes both seasonal vendors and producers using daily stalls;
  • assigning spaces so producers know where to set up their stands and consumers know where to find their favorite farmers;
  • collecting the fees for market spaces;
  • dealing with day-to-day administrative issues which arise at the market, such as “someone is illegally parked in my space!”;
  • enforcing the market regulations and administering penalties, which in many cases may mean imposing fines on vendors;
  • answering inquires and responding to complaints from customers and vendors;
  • promoting the market and working with the local media to advertise what the market has to offer; and
  • making sure the market, as a business, is in compliance with any local, state, and federal regulations which might apply.

The responsibilities of the market manager will vary a great deal depending on the size and nature of the market.  If the farmers market is a relative small and informal one, such as six farmers in the church parking lot one afternoon a week, the market manager’s job is not that large.  On the other hand, if you manage a larger farmers market, one with hundreds of vendors and thousands of customers, then the job of market manager, can be a full-time responsibility.

The Role of the USDA’s Farmers Market Nutrition Program

One of the important benefits of farmers markets is how they create local sources of fresh nutritious produce at reasonable prices.  Farmers markets can be especially valuable sources of food for citizens living on fixed or low incomes.  For many shoppers at farmers markets, especially those in cities, SNAP is an important way to buy food.  The USDA estimates that over $75 million in SNAP is redeemed at farmers markets.   The role of SNAP in direct farm marketing is discussed in the next chapter.

One other program, also discussed in Chapter Five, deserves mentioning here.  In 1992, Congress and the USDA created the Women, Infants, and Children (WIC) Farmers Market Nutrition Program.  This program provides additional benefits to WIC participants, in the form of coupons, which can only be redeemed at farmers markets for locally grown fresh, nutritious, unprepared foods such as fruits and vegetables.  In 2013 the federal government supplied grants to state agencies and others of nearly $19 million through this program.  Currently more than 45 states, territories, and tribes participate in the program.

The NAFMNP
NAFMNPThe National Association of Farmers Market Nutrition Programs helps Congress and USDA promote the WIC Farmers Market Nutrition Program. The organization, which includes representatives of the participating states, tribes and territories, as well as representatives from participating markets, was created to promote increased funding for the Farmers Market Nutrition Program. It publishes an annual report concerning the impact of the program and how funds were spent in each state. To learn more visit the NAFMNP website or call 703-837-0451.

Legal Issues in the Operation of Farmers Markets

The legal issues most commonly associated with farmers markets can be divided into three categories:  questions relating to vendors and the products which can be sold at farmers markets, such as inspection and labeling; issues relating to the relation between the vendor and the market, such as the right to participate; and issues relating to public policy and the operation of farmers markets, such as the application of local ordinances and market promotion efforts.   On the first two categories of issues – those involving market participation and operation, while there are many legal issues that might arise, the reality is that there have been few court cases or formal legal disputes involving farmers markets.  This doesn’t mean the potential legal issues aren’t important but it may mean if disputes have developed the parties have been able to resolve them privately.  On the third category, the issue of public policy and the promotion or development of farmers markets, there are a number of examples of local, state and federal rules applying specifically to farmers markets.  One of the best examples is the New York state law which sets out the state policy for the promotion and development of farmers markets.

New York Farmers' Market Law
The State of New York has one of the strongest laws recognizing the role of farmers’ markets in promoting agriculture. The law, New York Statutes, Chapter 69, Article 22, Section 259 provides:

The legislature hereby finds and declares that farmers’ markets provide a vital and highly effective marketing mechanism for thousands of New York farmers, improve the access of consumers and wholesalers to New York farm products, and contribute to the economic revitalization of the areas in which the markets are located. The legislature further declares that farmers’ markets provide consumers with access to a wide range of high quality, nutritious, farm fresh and processed New York state agricultural and food products; facilitate expanded wholesale distribution of New York state farm products to retail stores, restaurants, institutions and other wholesale food buyers; provide new and expanded farm and city jobs in agricultural production, marketing, and sales, and in market facilities development and operation; promote consumer awareness of New York state agriculture and agricultural products; and foster economic and social interaction between urban and rural residents of the state.

It is therefore the intent of the legislature and the purpose of this article to encourage farmers’ markets in the state by providing state assistance to municipalities and public and private agencies interested in developing new markets or expanding or reconstructing existing farm market operations.

The best way to consider legal issues which arise in connection with farmers markets is to answer some of the questions most commonly asked about how farmers markets operate.

Q. Can anyone just open up a market selling food products and call it a “farmers market”?

The answer depends on what state you are in.  In most states the use of the term “farmers market” is unregulated and can be used by anyone as a marketing device.  For example, it is not uncommon in some states to see grocery stores with the term “farmers market” in their name.  However, there are a few states which control use of the term by law.  Perhaps the best example of such a law is in Maine.  Under Maine law [Maine Stat. Ann. 7 §415] a farmers market is defined as “a building, structure or place used by 2 or more farmers for the direct sale of farm and food products to consumers, at which all sellers meet the requirements of subsection 2, paragraph B.”  Subsection 2 of the law provides:

2. Prohibitions.  The following acts are prohibited.

A.  A person may not use the term “farmers market” to describe a market or other sales location that does not meet the terms of the definition set forth in subsection 1.

B. A person may not sell farm and food products at a market labeled a “farmers market” unless at least 75% of the product offered by that person was grown or processed by that person or under that person’s direction.  A product not grown or processed by that person or under that person’s direction must have been grown or processed by and purchased directly from another farmer and the name and location of the farm must be identified on the product or on a sign in close proximity to the displayed product.

The law provides that it is a civil violation, subject to a fine of $100 to $200, to violate the prohibitions.  The law also provides that these provisions do not “prohibit a market from imposing more stringent requirements on its sellers than those imposed” by the law.

Q. Are there restrictions on where you can hold a farmers market?

The fact the term “farmers market” is generally unregulated can present opportunities for vendors.  In most states the process of creating a farmers market is relatively unregulated – meaning you don’t have to get a license or permission from any government agency.  This means local officials, church leaders, governments, or anyone interested in doing so, can decide to try and open a farmers market.  All that is needed is a place to hold the market and some farmers to sell their produce.  As to the customers, the belief (and experience) is farmers markets are like the famous baseball field built in an Iowa cornfield – if you build it they will come.  This means the most important ingredients in forming a farmers market are finding someone to sponsor it, finding somewhere to hold it, and finding farmers to sell at it.

One possible location for a farmers market is on federal property.  The government owns land in most cities and towns in America, whether it is the USDA office, the federal court house, or the post office.  As part of its campaign to promote the expansion of farmers markets, the USDA published a brochure “How to Establish a Farmers Market on Federal Property.” It provides details on how to identify possible market sites and who to contact within the government to arrange for use of the site. The USDA’s Know Your Farmer Know Your Food Initiative and website contains a great deal of valuable information about farmers markets, including a bibliography of publications, many by the state extension programs, on issues such as how to organize and manage a farmers market.

In 1996, the USDA led by example creating a farmers market in the parking lot of the USDA headquarters in Washington, D.C. The USDA farmers market has 14 vendors from three states, and its success has led to the addition of farmers markets at other agencies in the city.  This experience led the USDA to promote the idea of using federal property throughout the country as possible locations for new markets.

Q. Do I need a license to sell my products at a farmers markets?

The best answer to this question is that in most states and at most farmers markets – probably not.  In most states farmers do not need a license to sell what they raise.  And even in those states or towns where such sales may be regulated, the operators of the farmers market will typically have acquired any required permits.

However, there are exceptions to this general rule.  For example, if you are selling a product which is considered a processed food rather than an agricultural product – for example, a jar of jam rather than a pint of berries – then in many states you will need some form of food processor license.  The rules on licensing for food processing are discussed in more detail in Chapter Eleven.  It is your responsibility to know when you need a license.  Many of the regulations used by farmers markets – and typically – the vendor agreement you sign to participate in the market – will specify it is your responsibility to obtain any necessary licenses and permits.

Q. Are there any states where farmers need a license to sell products at a farmers market?

There are exceptions to the general rule that you do not need a license to sell your own produce at a farmers market.  Perhaps the most significant is the California system of certified farmers markets, noted in Chapter Three.  In California the state and county agricultural commissioners administer a system created by state law which certifies both farmers markets and the farmers who are eligible to sell commodities in them.

The California System

Q. How does the California system work and what is the purpose of regulating who is a farmer?

If you are a California producer, you no doubt understand how this system works.  But for farmers in other states it may seem like a rather peculiar system.  The idea is to create a system of farmers markets at which only real farmers – people who produce the food – can participate.  This gives consumers who are interested in buying farm-raised food directly from farmers an opportunity to do so.  In order to implement the system, the state uses a process whereby county officials inspect and certify both farms and farmers markets to insure they comply with state regulations.  In order to participate in a “certified farmers market” a farmer must have in his or her possession a “certified producer certificate” (CPC).  The CPC will list which products a farmer is certified to raise and sell.  Under the law certain types of farm products are treated as “certified” meaning only certified farmers can sell the products at farmers markets.  Other commodities are treated as uncertified meaning other people – as well as farmers can sell them.

Under the California system, the market managers at certified farmers markets (CFM) are responsible for helping enforce the regulations determining who can sell what at the market.  The regulations deal with issues such as “carrying” – which determines whether one producer can sell products raised by another certified producer.  Under the California rules a certified producer can only “carry” products raised by one other certified producer during the year.  The certificates for farmers and markets are required to be renewed annually.

Q. Do California farmers need to be certified to sell their own products at roadside stands on their farms?

Under the current rules, farmers who sell their produce on their own land are not required to have a certificate.  The requirement for a certificate only applies for sales made at certified farmers markets.

Q. Are there examples of farmers market regulations which restrict what you can sell at a market or who can participate?

While California is the only state where the government regulates this process, most farmers markets in the U.S. have specific rules about what type of products can be sold and by who. The most common restriction is to create what are known as “producer only” markets. These markets require that all of the goods being sold are raised by the farmers selling them.  Different markets use varying approaches to enforce such requirements. Some may just make it one of the market rules and use an informal system to enforce the guideline. But other markets use a much more detailed procedure to implement “producer only” requirements.

A good example of a farmers market with a very strict system of private regulations and enforcement is the famous New York Greenmarket – “producer only” markets held at locations throughout New York City.

The NY Greenmarket System
The Greenmarket uses a system of rules and vendor agreements to enforce what is essentially a set of private regulations.  The Greenmarket requires farmer vendors to submit a farm plan explaining what they plan to raise and sell – including quantities – before the market year begins. Staff from the Greenmarket conduct on-farm inspections to verify the production plan is feasible and being implemented. If producers are found to have violated their plan – or other rules of the market – they are subject to disciplinary action which can range from fines to eventual expulsion from the market.

The rules and regulations used for the operation of the New York Greenmarket are much more detailed than for many other markets, such as the Des Moines Downtown Farmers Market discussed above. The regulations for the Des Moines market do not include a restriction that only farmers can sell there. While the rules and regulations for the Des Moines market fit on one page, the rules for the Greenmarket now consist of 26 pages of rules and procedures. Review these rules as an example of more stringent and technical farmers market regulations.

The Greenmarket vendor’s agreement, a contract that must be signed by participating members, is almost as detailed and certainly as full of legal and technical language. It is addresses insurance requirements, suspension and termination, conflict resolution, and indemnification to name a few items and incorporates many standard legal techniques more commonly found in business contracts. Several of these legal clauses are discussed in Chapter Ten on insurance and liability.

While such rules and contracts can seem daunting and even intimidating keep in mind that the eighty farm families who participate in the Greenmarkets – and who sign the agreements – do so for some very important reasons.  The markets provide them with excellent sales opportunities by providing them with access to some of the most affluent and food conscious shoppers in America.

Q. Has the Greenmarket ever had to go to court to enforce its regulations?

Conversations with Greenmarket officials indicate that they have been in court on at least one occasion concerning the enforcement of the market rules.  In that case, a vendor had been suspended from the market for a series of violations of market rules.  The dispute revolved around allegations the vendor was selling poultry at the market which had not been raised on the farm but which had been purchased elsewhere.  The Greenmarket officials noted the farm plan submitted by the vendor did not indicate how he could produce the number of birds being sold or grow enough feed to raise them.  The vendor had refused to allow on-farm visits and refused to submit information which would explain the source of the poultry.  In response to the actions of the market to prevent the vendor from participating, which included a hearing of the Farmer Consumer Advisory Committee as called for in the market rules, the vendor went on the offensive and filed a lawsuit to require the Greenmarket to reinstate him.  This action led to extensive court filings and drawn out legal maneuvers.  However, the vendor was not in the market and Greenmarket officials felt they succeeded in preserving the integrity of what is sold at their markets.  The legal fees and effort involved in defending the case, illustrate how difficult it may be to enforce market regulations.

Q. Have there been other court cases involving attempts by farmers markets to enforce market regulations?

Some of the farmers market managers contacted report they have been sued by vendors and many more report having been threatened with legal action.  Several said they have sued vendors to resolve disputes over serious rule violations and those who have done so report being successful.  A review of reported court cases reveal very few disputes involving farmers markets have made it to the state appeals courts.  While this may make it difficult for law professors writing books, it is probably good news for direct farm marketers because it indicates, as you would hope and expect, that farmers markets function relatively smoothly without many reported legal disputes.

One court case involving a farmers market rule dispute is from Wisconsin.  While it is just one case, it is an excellent example of how courts will enforce the rules of a farmers market.  In Bowen v. Dane County Farmers Market, [555 N.W.2d 409, 1996 WL 515234 (Wis. App. 1996)], a vendor of baked goods had been suspended from participating in the famous Dane County farmers market in Madison, for selling products banned by the city and for not producing at least 20% of what he sold.  He brought a suit for damages against the market, the market manager and the board of directors, alleging a series of legal theories ranging from breach of contract to intentional infliction of emotional distress.  The defendants won the lawsuit on a summary judgment and then asked the court to award court costs and attorneys fees against the vendor and his attorney for bringing a frivolous lawsuit.  The district court granted the request and the vendor appealed the award of costs against him.  The Wisconsin Court of Appeals upheld the ruling the vendor’s legal action was frivolous and ruled the vendor should have known he had no viable claims against the farmers market.  The court noted the vendor “never offered evidence he was innocent of the rule violations which led to his suspension despite opportunities to do so.”  The court noted the markets’ rules concerning the punishment of suspension were clear.  The court concluded that as to the vendor, “The undisputed material facts are that he violated the rules of the market and was punished as provided in those rules.”

The case illustrates several points.   First, courts will probably enforce the markets’ rules as long as they are clear and are applied in a fair manner.  Second, a market may need to be prepared to expend time and money to defend its actions in court.  Third, while the case is unusual, because findings of frivolous lawsuits are not that common, it shows that a producer who sues a market when the facts are clear, may risk having to pay the market’s court costs and attorneys fees.

Questions to Consider When Joining a Farmers Market

If you are a vendor at a farmers market or are considering joining one, you will be asked to sign an agreement.   Hopefully you will read the agreement and consider the terms set out in it.   Regardless of whether or not you read it or understand the agreement, the effect of signing it will be to make it binding to your dealings with the market.  Even if the marketing agreement you sign is less detailed than the Greenmarket contract, as will probably be the case, it will still create a binding legal contract between you and the market.  That is why it is important to read and understand the legal agreements you sign.  Contract law and issues to consider when signing contracts, are discussed in Chapter Six.

To help you understand what may be involved in deciding to participate in a farmers market, there are certain questions you should ask yourself.  The box set out below contains a list of 20 questions which are examples of legal issues you should consider.  While all these questions might not be important in your own situation – depending on the type of market you are joining – they are all worth considering.

Twenty Questions to Ask About Your Farmers Market
1.  Who is the sponsor of the farmers market, is it a local government or a non-profit group?

2. Who owns the land on which it is located and are they responsible in case of accidents or injuries to shoppers?

3.  Who is in charge of the farmers market and who has authority to make decisions about how it is run, such as deciding who gets to set up in which location?

4.  Is the farmers market a “producers only” market meaning only farmers who produce food may sell it, or are other vendors and wholesale peddlers allowed to participate?

5.  Does the farmers market provide for “carrying rules” which allow one farmer to sell food raised by another farmer?

6.  What type of rules or regulations apply to your market participation, for example can you provide samples to customers?

7.  What penalties apply for violating market rules, are there fines or can you be expelled from the market for serious violations?

8.  If you are forced to leave the market or are unable to continue to come, is any portion of the seasonal fee you paid refundable?

9.  What happens if you just miss one market day, do you lose your location in the market?

10.  What is the procedure to be followed if there is a dispute over a rule violation, is there a committee of vendors and customers who decide the matter or does the market manager?

11.  Does the market have all the necessary local business permits or licenses or do you need to obtain business permits for each of the farmers markets in which you participate?

12.  Is the farmers market approved for participation in the USDA’s Women Infants and Children (WIC) Farmers Market Nutrition Program (FMNP) and SNAP?

13.  If you want to sell products such as meat, poultry, eggs and canned or processed food is this allowed by the market rules and what licenses will you need to obtain?

14.  How does the market manager make sure all of the vendors are not selling the same thing, such as sweet corn, so that people don’t start lowering prices?

15.  Does the market carry insurance in case of accidents?

16.  What type of insurance does the market expect you to have and what proof of insurance must you provide?

17.  Do the market rules require the farm owner actually attend the market or can you send employees to do the selling?

18.  Does the market require you to submit a plan before the market season begins listing what you intend to produce and the approximate amounts?

19.  Can the market officials visit your farm and inspect your operation and records?

20.  Do the market rules place limits on how you can label or describe your products?

California Law Establishes Standards for Food Handling and Storage at Farmers Markets

One issue which can arise in connection with the operation of farmers markets concerns the standards for the handling and storage of different foods.  For produce and fruit the issue of handling is generally not as significant as it may be for perishable foods such as meat or dairy products.  Standards for the sale of these foods are discussed in more detail in later chapters, but it is important to recognize that many farmers markets have rules which deal with food handling.  Often the rules simply state that vendors must comply with the applicable local and state rules for the food products in question.  An example of a state law which sets out specific food storage and handling standards for use in farmers markets is the law which creates California’s system of certified farmers markets.  The law [California Health and Safety Code, Art. 15 §114371], set out below, is a good example of health and safety standards designed to limit food safety problems and improve the appearance and operation of a farmers market.

California Rules in Food Handling at Farmers Markets
§ 114371.  Food handling and storage; facilities and sanitation of premises; animals; adjacent food vendors

Certified farmers markets shall meet the provisions of Article 6 (commencing with Section 113975) and, in addition, shall meet all of the following requirements:

(a) All food shall be stored at least 15 centimeters (6 inches) off the floor or ground or under any other conditions that are approved.

(b) Food preparation is prohibited at certified farmers markets with the exception of the food samples.  Distribution of food samples is allowed provided that the following sanitary conditions exist:

(1) Samples shall be kept in approved, clean, covered containers.

(2) All food samples shall be distributed by the producer in a sanitary manner.

(3) Clean, disposable plastic gloves shall be used when cutting food samples.

(4) Food intended for sampling shall be washed, or cleaned in another manner, or any soil or other material by potable water in order that it is wholesome and safe for consumption.

(5) Potable water shall be available for hand washing and sanitizing as approved by the local enforcement agency.

(6) Potentially hazardous food samples shall be maintained at or below 45 degrees Fahrenheit.  All other food samples shall be disposed of within two hours after cutting.

(7) Utensil and hand washing water shall be disposed of in a facility connected to the public sewer system or in a manner approved by the local enforcement agency.

(8) Utensils and cutting surfaces shall be smooth, nonabsorbent, and easily cleaned or disposed of as approved by the local environmental health agency.

(c) Approved toilet and hand washing facilities shall be available with 60 meters (200 feet) of the premises of the certified farmers market or as approved by the enforcement officer.

(d) No live animals, birds, or fowl shall be kept or allowed within 6 meters (20 feet) of any area where food is stored or held for sale.  This subdivision does not apply to guide dogs, signal dogs, or service dogs when used in the manner specified in Section 54.1 of the Civil Code.

(e) All garbage and rubbish shall be stored, and disposed of, in a manner approved by the enforcement officer.

(f) Notwithstanding Article 11 (commencing with Section 114250), vendors selling food adjacent to and under the jurisdiction and management of a certified farmers market may store, display, and sell from a table or display fixture apart from the vehicle, in a manner approved by the local enforcement agency.

The California law deals with a number of issues which often arise in the management of farmers markets, including whether to allow the distribution of food samples and allowing people to bring their dogs and other pets to the market.

Farmers Markets and Questions of Liability

One of the important legal issues which can arise in the operation of a farmers market concerns liability in case of injury or accidents to shoppers or vendors.  Markets attempt to address liability concerns in different ways.  Many markets purchase their own insurance policies to cover some of the events which might happen at the market.  Some markets also require vendors to purchase policies specifically for their market activities, which list the market as an insured party.  The most common way this issue is addressed is for the market agreement to require that vendors provide some proof of liability insurance.  This issue of insurance and farmers markets is discussed in greater detail in Chapter Ten, however it is important to recognize that questions exist as to whether the liability insurance most farmers have for their farms will apply to what may happen at the market.

A review of reported court cases indicates there have been very few disputes involving claims of liability against farmers markets which have made it to the state high courts. This probably indicates that there are relatively few incidents and that many of those which do arise are settled before they go to court.  The one reported court case on this issue, again from Wisconsin, illustrates why it may make a difference who is sponsoring the market.  In Anderson v. City of Milwaukee, 559 N.W. 2d 563 [Wis. 1997], a shopper sued the municipality after falling at a farmers market which was constructed, owned and maintained by the City.  The suit alleged that the city was negligent in the design and maintenance of a brick walkway involved in the accident.  Efforts to settle the suit were unsuccessful and after a trial the jury found the city negligent and awarded the shopper $443,000 in damages.  The city appealed alleging that it had immunity from the liability due to a law which limited damages against governmental subdivisions to $50,000.  The issue in the court case concerned whether or not the city had waived this limitation in the way it handled the case at trial.  The Wisconsin Appeals Court reversed the lower court and ruled the city had not waived the damage limitation, and ordered the case remanded to the circuit for awarding damages of only $50,000.

 

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