We love farmer’s markets. There’s nothing better than to go to a local farmer’s market on a beautiful weekend morning to pick the next week’s produce and locally prepared fresh foods.
We support local & small businesses, entrepreneurs and markets. They keep our local communities thriving. Large retailers can board up and leave at any time, and it will be the community businesses that will keep the community alive.
However, business doesn’t continue without government. The State of Texas and every government level below has laws that help protect other businesses and the public. Anyone can have a dream, but to create that dream in reality, it has to be done correctly in order to prosper.
When you think of going to a farmer’s market, you think of natural food and helping local farmers. That’s absolutely right! But, the government thinks of legal issues and illness that can harm you. There are many good and wonderful farmer’s markets that think of this as well, and we are putting out this Public Service Announcement (PSA) in the same spirit.
The Gypsy Rose Market has been approached by local businesses, growers and food preparers about including a farmer’s market with our artisan and shopping market. After some research, we found we cannot do so.
Here’s why and what you should look for when deciding to make a purchase at a Texas Farmer’s Market.
The Texas Department of Health and Human Services/Texas Department of State Health Services oversees activities that affect our health and well-being. So naturally, they oversee farmer’s markets as well.
According to the Texas Health and Safety Code, Chapter 437, Rule 229.701-704, Farmer Market Rules, Subchapter FF. Farmer’s Markets: (You can read the entire law here: www.dshs.texas.gov/foodestablishmen…)
SS 229.701. Purpose and Applicability
Galveston County has a population of about 329,431 residents according to census.gov and has a health department (Galveston County Health District – http://www.gchd.org/). So, Subchapter FF applies to our community.
SS 229.702. Definitions:
The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise.
(1) Department–The Department of State Health Services.
(2) Farmers’ market–A designated location used primarily for the distribution and sale directly to consumers of food by farmers and other producers.
(3) Fish–As defined in §229.162 of this title (relating to Definitions).
(4) Food–An agricultural, apicultural, horticultural, silvicultural, viticultural, or vegetable product for human consumption, in either its natural or processed state, that has been produced or processed or otherwise has had value added to the product in this state. The term includes:
(A) fish or other aquatic species;
(B) livestock, a livestock product, or livestock by-product;
(C) planting seed;
(D) poultry, a poultry product, or a poultry by-product;
(E) wildlife processed for food or by-products;
(F) a product made from a product described in this paragraph by a farmer or other producer who grew or processed the product; or
(5) Potable water–Drinking water.
(6) Poultry–A live or dead domesticated bird.
(7) Produce–Fresh fruits or vegetables.
(8) Producer–A person or entity that produces agricultural products by practice of the agricultural arts upon land that the person or entity controls.
(9) Sample–A bite-sized portion of food or foods offered free of charge to demonstrate its characteristics and does not include a whole meal, an individual portion, or a whole sandwich.
(10) Potentially hazardous food (time/temperature control for safety food)–As defined in §229.162 of this title.
SS 229.702. Permits:
The department or the local health department may issue a permit to a person who sells potentially hazardous food (time/temperature control for safety food) at a farmers’ market.
SS 229.703. Temperature Requirements
(a) Potentially hazardous food (time/temperature control for safety food) sold, distributed, or prepared on-site at a farmers’ market, and potentially hazardous food (time/temperature control for safety food) transported to or from a farmers’ market shall meet the requirements of this section.
(b) Frozen food. Stored frozen foods shall be maintained frozen.
(c) Hot and cold holding. All potentially hazardous food sold at, prepared on site at, or transported to or from a farm or farmers’ market at all times shall be maintained at:
(1) 5 degrees Celsius (41 degrees Fahrenheit) or below; or
(2) 54 degrees Celsius (135 degrees Fahrenheit) or above.
(d) Cooking of raw animal foods. Raw animal foods shall be cooked to heat all parts of the food to the following temperatures:
(1) poultry, ground poultry, stuffing with poultry, meat and fish to 74 degrees Celsius (165 degrees Fahrenheit) for 15 seconds;
(2) ground meat, ground pork, ground fish, and injected meats to 68 degrees Celsius (155 degree Fahrenheit) for 15 seconds;
(3) beef, pork, meat, fish and raw shell eggs for immediate service to 63 degrees Celsius (145 degrees Fahrenheit) for 15 seconds;
(4) prepackaged, potentially hazardous food (time/temperature control for safety food), that has been commercially processed, to 57 degree Celsius (135 degrees Fahrenheit);
(5) a raw or undercooked whole-muscle, intact beef steak may be served if:
(A) the steak is labeled to indicate that it meets the definition of “whole-muscle, intact beef” as defined in §229.162(115) of this title (relating to Definitions); or
(B) the steak is cooked on both the top and bottom to a surface temperature of 63 degrees Celsius (145 degrees Fahrenheit) or above and a cooked color change is achieved on all external surfaces.
(6) raw animal foods cooked in a microwave oven shall be:
(A) rotated or stirred throughout or midway during cooking to compensate for uneven distribution of heat;
(B) covered to retain surface moisture;
(C) heated to a temperature of at least 74 degrees Celsius (165 degrees Fahrenheit) in all parts of the food; and
(D) allowed to stand covered for 2 minutes after cooking to obtain temperature equilibrium.
(e) Cooking fruits and vegetables. Fruits and vegetables that are cooked shall be heated to a temperature of 57 degrees Celsius (135 degrees Fahrenheit).
(f) Eggs. A farmer or egg producer that sells eggs directly to the consumer at a farm or farmers’ market shall maintain the eggs at an ambient air temperature of 7 degrees Celsius (45 degrees Fahrenheit) as specified in §229.164(c)(1)(C) of this title (relating to Food).
The FAQ section of the Texas Department of Health and Human Services’ website for Farmer’s Markets are below: (Read the FAQs here www.dshs.texas.gov/foodestablishmen…)
What is the definition of a farmer? A farmer is a person who has ownership of, or financial and/or productive responsibility for producing, an agricultural product intended for use as a food or raw material. The term usually applies to people who do some combination of raising field crops, orchards, vineyards, poultry, aqua-culture or some other form of livestock. A farm is usually owned by that person or under direct control of that person.
What is the definition of a farmers’ market? A farmers’ market is a designated location used primarily for the distribution and sale of food directly to consumers by farmers and other producers.
What is a farm stand? A farm stand is defined as a premise owned and operated by a producer of agricultural food products at which the producer or other persons may offer for sale produce or foods.
Is a farmers’ market a food service establishment? No. A farmers’ market is not a food service establishment.
Do I need a temporary food establishment permit to sell food at a farmers’ market? A temporary food establishment permit is not required to sell whole, intact unprocessed fruits and vegetables and pre-packaged non-potentially hazardous food/time temperature for safety foods.
A temporary food establishment permit is required to sell all other potentially hazardous food/time temperature control for safety foods.
What is a potentially hazardous food/temperature controlled for safety food (PHF/TCS)? A potentially hazardous food (PHF) is a food that requires time and temperature control to limit pathogen growth or toxin production. In other words, a potentially hazardous food must be held under proper temperature controls, such as refrigeration to prevent the growth of bacteria that may cause human illness. A PHF/TCS is a food that: contains protein, moisture (water activity greater than 0.85), and is neutral to slightly acidic (pH between 4.6 -7.5).
May I provide/distribute samples at a farmers’ market? Yes.
To provide samples of food at a farm or farmers’ market, you must:
- Distribute the samples in a sanitary manner
- Have potable water available
- Wash any produce intended for sampling with potable water to remove any visible dirt or contamination
- When preparing the samples, either wear clean, disposable plastic gloves or observe proper hand washing techniques immediately before preparation;
- Use smooth, nonabsorbent, and easily cleaned (i.e. metal or plastic) utensils and cutting surfaces for cutting samples, or use disposable utensils and cutting surfaces;
- Samples of cut produce and other potentially hazardous foods shall be maintained at a temperature of 41°F or below and discarded within two hours after cutting or preparation. A permit is not required to provide samples at a farmers’ market.
What is a sample? A sample is defined as a bite size portion, not a full serving.
Do I need a temporary food establishment permit to provide samples at a farmers’ market? No. A temporary food establishment permit is not required to provide samples at a farmers’ market.
What are proper hand washing techniques?
- Vigorous friction on the surfaces of the lathered fingers, finger tips, areas between the fingers, hands and exposed arms (or vigorous rubbing the surrogate prosthetic devices for hands and arms) for at least 10 to 15 seconds, followed by;
- thorough rinsing under clean, running warm water; and
- immediately following the cleaning procedure with thorough drying of cleaned hands and arms (or surrogate prosthetic devices) using individual, disposable towels
What are the requirements for performing a cooking demonstration at a farmers’ market? For a farmers’ market cooking demonstration, the following is required:
- A person with a certified food manager’s license supervising the demonstration; and
- Compliance with the requirements for a temporary food establishment permit.
What are the requirements for providing sample as a part of a cooking demonstration at a farmers’ market? A farmers’ market may distribute samples as part of the cooking demonstration if:
- the samples are a part of the “bona fide educational purpose”; and
- the samples are disposed of within 2 hours of preparation.
Do I need a temporary food establishment permit to perform a cooking demonstration at a farmers’ market? Cooking demonstrations conducted by a farmers’ market for a “bona fide educational purpose,” are exempt from having to obtain a temporary food establishment permit.
What is a ‘bona fide educational purpose’? A bona fide educational purpose means the cooking demonstration made in good faith or made with earnest intent to instruct and educate.
Can raw milk be sold at a farmers’ market? No. Raw milk cannot be sold at a farmers’ market.
Will the Department of State Health Services conduct inspections at farmers’ market? Yes. The Texas Department of State Health Services has the authority to conduct inspections of all food vendors who are required to obtain a temporary food establishment permit at a farmers’ market.
Will the Department be required to write rules concerning farmers’ markets in a separate chapter outside the Texas Food Establishment Rules? Yes. The department is in the process of developing the rule concerning the regulation of farmers’ markets to comply with the requirements of Senate Bill 81 of the 2nd Legislative session and House Bill 1382 of the 83rd legislative session.
Do I need to have food handler’s card or food manager certification to sell food at farmers’ market? No. A temporary food establishment operating under the jurisdiction of the Department of State Health Service is not required to obtain a food handlers card or a certified food manger certificate. If the food vendor is associated with a ‘bona fide’ cooking demonstration, the farmers’ market must have a certified food manager.
Can a cottage food production operation sell food at a farmers’ market? Yes. Foods produced at a cottage food production operation (CFPO) may be sold at farmers’ market The CFPO must comply with the guidelines as required in the law concerning Cottage Food Production Operations.
Can I sell yard eggs at a farmers’ market? Yes. To sell farm eggs at a farmers’ market the following is required:
- You must have a temporary food establishment license; and
- Eggs must be maintained at an ambient air temperature of 45°F and below; and
- Eggs must be properly labeled as “ungraded” with safe handling instructions.
May I sell honey at a farmers’ market?
Yes. Honey may be sold at a farmer’s market. In order to sell honey as food in Texas, you will need to follow the rules for Good Manufacturing Practices (GMPs) 25 TAC §§229.210-229.222 and obtain a food manufacturing license.
Also, a small honey production operation may sell honey directly to consumers at the beekeeper’s home, a farmer’s market, a farm stand, or a municipal, county, or nonprofit fair, festival or event according the Health and Safety Code Chapter 437, Section 437.001(7).
The honey sold or dispensed must be labeled in accordance with Subchapter E, Chapter 131, Agriculture Code. The label must include: the net weight of the honey expressed in both the avoirdupois and metric systems; the beekeeper’s name and address; and the statement, “Bottled or packaged in a facility not inspected by the Texas Department of State Health Services.”
May I sell my own cattle or poultry that I have slaughtered at a licensed and inspected facility? Yes. Meat or poultry products must come from animals processed in compliance with the regulations for livestock processing (Texas Health & Safety Code Chapter 433) and a temporary food establishment permit is required.
May I sell fish and other aquatic species at a farmers’ market? Yes. Commercial fishermen must possess a license from the TPWD or the fish and other cultured species must be produced and raised in a facility that has an aquaculture license from TDA and a temporary food establishment permit is required.
Since The Gypsy Rose Market does not provide or operate at locations primarily for “the distribution and sale of food directly to consumers by farmers and other producers,” we cannot be classified as a farmer’s market and vendors will not get the same legal protections as they would if they sold at farmer’s markets as defined above. Therefore, anyone wishing to sell foods needs to have and/or obtain proper health permits from the state, county and cities in which the market of ours they wish to sell.
In the spirit of keeping local farmer’s markets prosperous and with less legal restrictions, we hope this has provided a better explanation about our position as only a artisan and farmer’s market.