Farmers Markets Escape Potential for Overregulation

By Melissa Daniels | PA Independent

HARRISBURG — Statewide food safety regulations for farmers markets are working.

But that wasn’t the case initially. The new rules, which seemingly called for expensive fixes and equipment buys, worried farmers and market managers.

But those burdens aren’t true to the law, says a new Harvard Food Law and Policy Clinic report that examined the 2010 regulations, referred to as Chapter 57 of Act 106. Advocacy group Keep Food Legal commissioned the report, which concluded Pennsylvania’s laws offer a favorable model for ensuring market products are safe.

Food law instructor Emily Broad Leib, one author of the study, said some local health inspectors were “overzealous” when the law was first applied.

Horror stories emerged of local health inspectors suddenly requiring equipment such as commercial sinks costing up to $1,500. In Bucks County, markets lost at least five vendors who couldn’t get motorized cooling devices, the report found.

Those aren’t requirements of the updated food safety code, but the language was interpreted that way.

“One of the things we’ve seen in a lot of states is the law isn’t always 100 percent clear,” Broad Leib said.

Farming advocates, and the state, stepped in. The state Department of Agriculture clarified the law for local health departments and held public meetings to explain it to vendors.

Per the law: Instead of refrigerated trucks, ice chests will do just fine. All that matters is products are stored at temperatures at or below 41 degrees.

Chapter 57 prevents local authorities from applying their own sets of regulations, and vendors need only meet state requirements to pass inspection.

Under the old law, each of the state’s 150-plus local and county health departments could craft their own regulations, while all other jurisdictions were dictated by state law. So, a farmer could go from a one city to another, and then to another county, and have to employ a different setup and abide by different rules.

One jurisdiction might allow cheese sampling, another might not. One might require a food truck to store goods, while the other would be satisfied with an overhead tarp.

Such were the headaches for traveling vendors, said Brian Snyder, executive director for small-farm advocacy group Pennsylvania Association for Sustainable Agriculture.

He said the new laws are an improvement, mostly. In Pennsylvania, small farms are growing, in every sense of the phrase.

“It is relatively easy for smaller farms to get started selling at markets and doing things that are quite difficult in some of the other states,” he said.

But a handful of vendors who operated in jurisdictions with few or no regulations are just now adjusting to statewide rules, he said.

PASA is pushing for new legislation that would allow for “mobile permits,” so vendors can travel more freely from market to market, he said.

Lydia Johnson, director for the Bureau of Food Safety and Laboratory Services at the Department of Agriculture, said one of the largest changes in Chapter 57 was a requirement for individual vendors selling certain goods, such as meat, to have licenses. Previously, only the market itself needed a license.

“If you had one bad player they could cause the entire market to lose the license,” Johnson said.

Johnson worked with vendors, markets and local health departments to implement the food code.

“We’re not looking at an expensive way to achieve food safety, but what we’re trying to accomplish is to have safe food,” she said. “We’re not going to require a very expensive piece of equipment if you can do the same job and have safe food using something which is not as expensive.”

Baylen Linneken is executive director of D.C.-based food freedom advocacy group Keep Food Legal, the group that commissioned the Harvard study based on concerns about overregulation.

“(A farmer’s market) is one that most people don’t think of as a restricted atmosphere for buying and selling, but it is,” Linnekin said. “There are regulations around the country that make it difficult for farmers and market management to sell or buy.”

Linnekin said he was satisfied with the report’s conclusion, especially the notion that food safety regulations should be about results, not process.

“A lot of the burden is really cost-related, and so if you can get the same results, or better results, out of something less costly , why not require that less costly thing?” he said.