Smarter Rules for Farmers Markets By Wes King, Executive Director, Illinois Stewardship Alliance

Transcription

1 Smarter Rules for Farmers Markets By Wes King, Executive Director, Illinois Stewardship Alliance On June 23, 2014 Illinois Governor Pat Quinn signed House Bill 5657 creating Public Act , initiating a process for reforming the way farmers markets are regulate in Illinois to support continued growth in the local food sector of the economy. This document provides an overview of the content within Public Act as well as the process moving forward with implementation. Regional planning commissions, communities and economic development organizations are consistently including local food and farmers markets as part of their long term development plans. Illinois needs a statewide regulatory framework that treats farmers markets accordingly. As a state we should be doing everything we can to adopt rules and regulations that are risk and scale appropriate, encouraging growth within local food sector while still maintaining the appropriate level of food safety regulation. However, currently, we have a patchwork quilt of regulations that vary widely and sometimes dramatically across the state in how local health departments regulate farmers markets. Illinois Stewardship Alliance and many other organizations and individuals working to support local food and farming systems have heard for years about the burdens, barriers and challenges created by such an inconsistent regulatory system and the need for change. Despite what the TV says bipartisanship is not entirely dead. Responding to the needs of farmers and farmers markets in early 2014, Representative Mike Tryon a Republican from Crystal Lake and Senator David Koehler a Democrat from Peoria who happens to also be a former local food entrepreneur that sold at farmers markets in the Peoria area and is Chair of the Senate Agriculture Committee, together championed HB5657 at the Illinois General Assembly and helped to usher through its passage and final approval by Governor Quinn on June 23, In discussing what HB5657, now officially Public Act , does and what is contained in the law, I want to first provide some background. The issue of addressing inconsistencies between food sanitation regulations for farmers markets from county to county and the overall effort to create statewide consistency goes back at least 5 years. The actual issue and discussion around it goes back further than that, but the legislative history begins 5 years ago. In 2009 Senator David Koehler introduced legislation to create a separate statutory act to govern food sanitation at farmers markets in order to address inconsistencies and the need for scale and risk appropriate regulations. Senator Koehler was persuaded to not move forward with such legislation under the pretense that the issues would be addressed and there was no need for legislation. The status quo continued and as a result in 2010 House Joint Resolution 57 was overwhelming adopted by the Illinois General Assembly, which urged the Illinois Department of Public Health (IDPH) to form a farmers market task force to address the larger issue at hand, no such task force was formed. Then in 2011 Senate Bill 1852 was passed by both chambers and signed by 1

2 the Governor, instructing IDPH in statute to form a Farmers Market Task force for the purpose of assisting IDPH in developing statewide administrative rules for farmers markets. That task force was formed and has done some good work so far, but the intent and primary goal of the task force was to assist in the development of consistent statewide administrative rules something that at the beginning of 2014 had not yet begun. Uncertainty surrounding the original language that created the farmers market taskforce and the level of authority they had was raised as a barrier to the task force developing statewide administrative rules and regulations. The uncertainty combined with a number of other issues related to farmers markets and regulations that were outside the scope of the original language creating the farmers market task force created a need for the development of HB5657. The overarching goal of HB5657 now Public Act is to increase sales of locally grown and made products at farmers markets by standardizing farmers markets regulations to make them consistent across the state. The new law has 4 key parts to it, which I will list out and then go into specifics and details one by one: 1. Consistent statewide food sanitation regulations 2. Food sampling at farmers markets 3. Product origin transparency 4. Cottage food operations Consistent Statewide Food Sanitation Regulations for Farmers Markets The new law clarifies and strengthens the authority of the Illinois Department of Public Health s Farmers Market Task Force to develop consistent statewide farmer s market food sanitation rules and regulations. Currently, IDPH sets a basic minimum standard for food sanitation at events such as farmers markets and has done a good job over the last several years of developing guidance documents for local health departments regarding what the state law says and how it should be applied to farmers markets. However, local health department (until HB5657 is implemented) have the ability to create and establish additional more stringent and sometimes more onerous regulations; creating a patchwork quilt of regulatory hoops farmers and local food entrepreneurs selling at multiple markets in different jurisdictions had to jump through in order to comply with the law. In some cases practices that were allowed in one county would not be allowed in others. In some counties mechanical refrigeration units were required, in many counties they were not, allowing farmers to use coolers with ice packs so long as products were kept at the appropriate temperature to ensure food safety. In some counties removing Brussels sprouts from the stock has been considered processing and therefore had to be done in a commercial kitchen, in some counties putting green beans in plastic bags is considered processing and then in others both were allowed. HB5657 amends the law to make clear that the farmers market task force and IDPH has the authority to develop new administrative rules and regulations for food sanitation at farmers markets and that those new regulations once adopted will be binding for all counties and jurisdictions in Illinois; and local health department will not be able to create more stringent rules or regulations. This is not to say that farmers markets that are privately run or independently run

3 will not be able to write additional requirements into their market rules but the food sanitation rules and regulations enforced by local health departments will have to be the same in every part of the state. The only partial exception to this is one that will most likely disappoint many farmers and entrepreneurs and that is that local health departments will still be able to set their own fees related to the various permits that might be required for a farmer or entrepreneur to participate in a farmers market and sell food to the public. Those simply selling produce are currently un-regulated and things will remain that way; but if you are engaged in selling of eggs, meats, cheese, or any value-added products you will, just like now, have to obtain a local permit to sell those items, and the fees will still vary from local health department to local health department, however the associated regulations and rules will be the same everywhere in the state. Beyond clarifying and strengthening the authority of the farmer s market task force, the new law creates a timeline for the task force to develop recommendations and shortens the bureaucratic process for those recommendations to be approved and implemented. Towards the end of this document we will discuss more of the timeline and process for moving forward, but the law contains a deadline of December 15, 2014 for the farmers market task force to develop recommendations and submit them to IDPH for full review and approval. While state government often moves slower than many of us would hope, the goal is to have new regulations in place by the beginning of the 2015 farmer s market season. As we will discuss later, the task force finalizing recommendations and IDPH approving of those new rules and regulations is only part of the regulatory process, which also includes approval by the Illinois General Assembly s Joint Committee on Administrative Rules, therefore while the goal is by the 2015 farmer market season that might not come to fruition. Food Sampling at Farmers Markets New Certificate Program Food sampling can be an important part of any successful food product business, whether that is a small vendor selling product at a farmers market or someone selling through larger wholesale channels like grocery stores. A 2011 United States Department of Agriculture funded study conducted by the University of Kentucky on the impact of sampling at farmers markets in the region, including Illinois, found that sampling had a significant and immediate positive purchasing impact at the farmers market. That study also showed that of those surveyed, 55% purchased the sampled product that day when they had not planned to do so previously. Currently, here in Illinois to offer samples at a farmers market a farmer or entrepreneur has to deal with the same patchwork quilt of regulations; where regulations and more importantly permit lengths vary. In some counties you can get a permit to offer samples for the whole season, in some counties the permit is far less in the amount of days and if you are trying to offer samples at multiple markets in separate jurisdictions you will need separate permits for each. The new law authorizes and instructs the farmer s market task force and IDPH to create a new statewide food sampling at farmer s market certificate program. The new law takes the approach of exempting vendors from any sort of local food handling permits for offering samples at farmers markets provided they are certified to properly offer food samples in a sanitary

4 manner through taking a food safety training course on sampling at farmers markets and follow consistent statewide guidelines for sampling at farmers markets. Many of the details in how this new certificate program will work have not yet been determined but the farmers market task force has been working hard to develop this program first in order make sure it is available for the 2015 farmers market season. Based on preliminary task force discussions the following details are likely to be components of that new certificate program, but I stress these are preliminary and subject to change, there will be a lot more information in the coming months when it comes to education about the new certificate program. The framework to the program that the task force is considering will likely be one in that each person that engages in food product sampling will be required to have taken an approved food handlers training course, which now thanks to recent changes can be taken and finished online in about an hour or so and for about $10. In addition to that, each person will then have to watch or participate in a webinar or training on best practices for offering food samples at a farmers market. Proof of the food handlers training completion and the best practices webinar or training completion will then be submitted to the IL Department of Public Health along with an approximately $50 fee, that individual will then be issued a food sampling a farmers market certificate that will allow them to sample their products at any farmers market in the state without needing to get a local food handling permit for 36 months. The taskforce is also considering lower thresholds and fees for renewal. Product Origin Transparency Re-sellers pretending to be actual farmers, undercutting bona-fide farmers, have been a perennial issue that both farmers selling at farmers markets and market managers have complained about for years. Not only does it hurt farmers it hurts the overall brand of farmers markets where consumers by and large assume everything at a farmers market is locally produced by real local farmers. At the same time the federal government is in the process of implementing the Food Safety Modernization Act, the largest overhaul of the federal food safety system since the early 1900s that will once fully implemented include regulating produce production. Product origin transparency language was included in the new law to specifically address the dovetailing of these factors. The new law says that all vendors selling specialty crops and raw agricultural commodities at a farmers market in Illinois must include a sign, label or packing slip at the point of sale that lists the physical address of the farm or farms on which those products were produced. That is not to say that a farmer cannot collaborate with a neighbor or colleague to include strawberries or peaches they did not grow in their farmers market offerings, they just have to be transparent and disclose where that product came from. Furthermore, this doesn t out right stop re-sellers, the law actually allows for re-sellers but states if the re-seller does not know the actual farm the product came from that it must include a sign, label or packing slip that states where the specialty crops or raw agricultural commodities were purchased. In the past these types of requirements or something similar has been something that markets incorporated in their rules but it was never a legal issue. Now because of the new law it is technically illegal to not be transparent and not doing so risks a vendor potentially having their

5 products declared misbranded. Currently, the new law does not include any resources for enforcement of the provision and the public health community has signaled they do not plan to actively enforce it but there is a chance that if someone was extremely egregious in violating this part of the law that legal action could be brought against someone for selling misbranded products. In the meantime what it does is give market managers legal backing to require transparency at the market place. Furthermore, the language within this part of the law is modeled almost verbatim after a part of the Federal Food Safety Modernization Act (FSMA) which also requires product origin labeling and once implemented, which won t be for another couple years, will most likely include mechanisms and resources for enforcement. In addition, unlike many of the pieces in FSMA that contain some partial exemptions for small direct market operations, pretty much all farms will have to comply with the product origin labeling part of FSMA regardless of size. This gives farmers and market mangers an opportunity and the tools to address a perennial problem at farmers markets while also preparing for the eventual implementation of FSMA. Cottage Food Illinois Cottage Food law has been both a wonderful opportunity and a disappointment for many who wish that it was less strict and allowed cottage food operations to produce more varieties of products and sell them at additional market places beyond just farmers markets. Unfortunately, while HB5657 does make some changes to Illinois Cottage Food law it does not address those issues and instead, in keeping with the theme of creating consistency across the state, caps the registration fee and makes a slight but important change to the definition of a cottage food operation within the law. While, most counties were following both the letter and spirit of the law and charging reasonable fees for registering as a cottage food operation in the range of 0-$25 per year with Cook County Department of Public Health who was one of the major opponents of the original law charging $0. However there were several outliers who were unjustifiably charging $75, $90 and even $200 to register. On top of that some were treating the registration as being only applicable to the standard farmer s market season and requiring a second registration and fee to sell during winter farmers markets outside of the normal season. Therefore the new law caps the fees a local health department can charge for a cottage food operation at $25 per year. In addition to capping the fee, the new law changes the definition of a cottage food operation to include an out building on the same property as their home residence. There were several farmers who had out buildings with kitchens in them that they wanted to use but because the original cottage food law only mentioned home residential kitchens they were not allowed to operate as a cottage food operation in those out buildings. In one incident there was a farmer who actually had a certifiable commercial kitchen that they had not kept up the inspections and certification on and they wanted to use it to just make a small amount of jams and jellies to sell at farmers markets, such a small amount that did not justify the expense of full commercial certification. But because the kitchen was not in their home residence and it was in an out building on their property they were not allowed to. Therefore the new law contains changes to the definition of a cottage food operation that will allow someone to operate one in a kitchen on

6 their property in an out building, provided it is designed and equipped in a manner similar to a residential or commercial kitchen. Next Steps: Recommendations & Proposed Rules As it was discussed earlier the goal is to have the new law fully implemented by the beginning of the 2015 farmers market season, a lofty goal that the farmers market task force has been working hard to meet. The new law contains a deadline of December 15 for the task force to submit recommendations to the Illinois Department of Public Health for their approval. Following the departments review and approval those recommendations will then begin the next part of the administrative rule making process. 2 Whether it is federal or state law often times the bills passed by legislatures that create new statutory laws do not spell out the details necessary for implementation of that new law, leaving the details to the administrative law process. State agencies within the purview of the statutory law will often be in charge of figuring out the details and writing administrative laws. In keeping with the democratic spirit those administrative rules, under most circumstances, must go through a several stage process where both the public and the Illinois General Assembly through the Joint Committee on Administrative Rules (JCAR) 3 are able to weigh in and influence the final rules that is often called regular or permanent rulemaking. This regular rulemaking process is a two step process; a first notice of proposed rules and a second notice of proposed rules, the two step process requires anywhere from days. The agency drafting and proposing rules controls the process. Once the agency drafts proposed rules the First Notice period beings with their official publication in the Illinois Register via the Flinn Report. 4 First Notice period lasts at least 45 days during that time the public can submit comments and suggested changes to the agency proposing the rules as well as request a public hearing. After the agency has reviewed the comments and made or not made changes the rules then enter the Second Notice period where the agency files a Second Notice with JCAR that lasts for typically a maximum of 45 days. During the Second Notice period, the General Assembly through JCAR and JCAR s staff review the proposed rules. During the JCAR review the public can once again submit commitments but this time to JCAR directly. JCAR can then take several actions related to the proposed rules that can result in changes to the rules, approval outright of the rules or rejection the proposed rules. Once the JCAR review is complete the rules are finalized and published by the Secretary of State within the Illinois Register and become part of the official Illinois Administrative Code. Following the farmers market task force s submission of recommendations and the IDPH s review and approval, first and second notice periods of the rulemaking process will be opportunities for farmers, market managers and consumers to give additional input on the final 2 More detailed information on the Rulemaking Process:

7 rules and regulations pertaining to food sanitation at farmers markets. This may end up being an important tool for advocates and supporters. It is possible that members of the task force and IDPH will not see eye to eye on every aspect of the rules, the rulemaking process is an opportunity to further refine and influence the outcome in a positive manner that will give more support and flexibility to farmers and entrepreneurs selling at farmers markets. Illinois Stewardship Alliance Illinois Stewardship Alliance is a statewide nonprofit organization working to support local food and sustainable farming through education and advocacy. Illinois Stewardship Alliance s mission is to promote environmentally sustainable, economically viable, socially just, local food systems through policy development, advocacy, and education. Illinois Stewardship Alliance has an active policy advocacy and lobbying program and is a leader in Illinois when it comes to fighting for the needs of small farms, local food systems and sustainable agriculture. Illinois Stewardship Alliance was the lead proponent and negotiator of House Bill 5657 and for the original Illinois Cottage Food Law. The policy priorities that guide Illinois Stewardship Alliance s policy advocacy work have been created and revised by a Grassroots Policy Advisory Committee made of farmers, entrepreneurs, consumers and other stakeholders. If you would like to get involved with the Alliance s policy program and grassroots advisory committee please contact Wes King at wes@ilstewards.org. Illinois Stewardship Alliance s official policy priorities are: Developing tiered regulations to eliminate legal and regulatory barriers burdening the local food and farm economy. Developing local food and farm infrastructure through technical assistance, funding streams, and regulatory reform. Leveraging support of citizens, legislators, organizations, and other farmers through education about policy ramifications and engagement in the policy making process. Increasing access to local food for low-income and underserved populations through the support of Illinois Fresh Food Fund, support programs and policies to provide SNAP/EBT Infrastructure at Farmers Markets and other farm-direct enterprises. Supporting appropriate food safety rules and regulations through engagement with regulatory agencies and support for legislative reforms. Increasing access to land and farmland preservation by supporting and developing progressive reforms in land use policy. Supporting transparency, consumer choice and diversified farming by supporting mandatory labeling of genetically engineered food products. For more information on Illinois Stewardship Alliance education, advocacy and program work please visit: