Texas Farmer's Market

What is the definition of a “farmer”?
§229.702(2) defines “farmer” as “a person or entity that produces agricultural products including, but not limited to, fruits, vegetables, fungi, grains, fiber, honey, dairy products, meat, poultry, or eggs, by practice of the agricultural arts upon land that the person or entity owns, rents, leases, or to which the person or entity otherwise has access.”

What is the definition of a “farmers’ market”?
§229.702(3) defines “farmers’ market” as “a designated location used for a recurring event at which a majority of the vendors are farmers or other food producers who sell food directly to consumers. A farmers' market must include at least two vendors who meet the definition of "farmer" as defined in paragraph (2) of this section and may include vendors who meet the definition of "food producer" as defined in paragraph (6) of this section. In addition, a farmers' market may include vendors who are not "farmers" or "food producers," provided that "farmers" and "food producers" constitute the majority of vendors who participate in the market throughout the year.”

What is the definition of a “farm stand”?
§229.661(b)(6) defines “farm stand” 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. . . .”

What is the definition of a “food producer”?

§229.702(6) defines “food producer” as “a person who grew, raised, processed, prepared, manufactured, or otherwise added value to the food product the person is selling. The term does not include a person who only packaged or repackaged a food product.”

Is a farmers’ market a food service establishment?
No. A farmers’ market is not a food service establishment.

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.

A temporary food establishment permit is not required at farmers’ markets under DSHS jurisdiction to sell whole, intact unprocessed fruits and vegetables and pre-packaged non-potentially hazardous food/time temperature for safety foods or cottage foods. A temporary food establishment permit is required to sell all other potentially hazardous food/time temperature control for safety foods.

Farmers and food producers planning to vend food products at farmers’ markets located in areas that are under the jurisdiction of local health departments (i.e. municipal or county health departments or public health districts) should contact those jurisdictions for licensing requirements.

May I sell honey at a farmers' market? 

Yes. Honey may be sold at a farmer’s market.   With the adoption of the updated 25 TAC 229.210-225 Subchapter N, Current GMP and GWP in Manufacturing, Packing or Holding Human Food, beekeepers that sell raw honey produced from their own bees/hives are “farms” and are exempt from licensing as food manufacturers when engaged in allowable farm activities. 

Beekeepers harvesting raw honey will not be required to license with DSHS if they are only engaged in allowable farm activities.  Harvesting operations that conduct filtering, packaging, and labeling of honey are still subject to the adulteration and misbranding provisions of Texas Health and Safety Code 431.  The Texas Agriculture Code, Title 6, Chapter 131, Bees and Honey, Subchapter E, Labeling and Sale of Honey gives DSHS regulatory authority over the labeling of honey.  

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).  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.  A temporary food establishment permit is required.

Do I need a temporary food establishment permit to sell food at a farmers’ market? 

A temporary food establishment permit is not required at farmers’ markets under DSHS jurisdiction to sell whole, intact unprocessed fruits and vegetables and pre-packaged non-potentially hazardous food/time temperature for safety foods or cottage foods. A temporary food establishment permit is required to sell all other potentially hazardous food/time temperature control for safety foods.

Farmers and food producers planning to vend food products at farmers’ markets located in areas that are under the jurisdiction of local health departments (i.e. municipal or county health departments or public health districts) should contact those jurisdictions for licensing requirements.

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. 

Farmers and food producers planning to vend food products at farmers’ markets located in areas that are under the jurisdiction of local health departments (i.e. municipal or county health departments or public health districts) should contact those jurisdictions for certification requirements.

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.

What is a time and temperature controlled for safety (TCS) food?

§229.702(11), following the 2017 FDA Food Code 1-201.10(B), defines “TCS food” as follows:

Time/Temperature Control for Safety Food (formerly “potentially hazardous food” (PHF)).

  (1) "Time/temperature control for safety food" means a FOOD that requires time/temperature control for safety (TCS) to limit pathogenic microorganism growth or toxin formation.

  (2) "Time/temperature control for safety food" includes:

    (a) An animal FOOD that is raw or heat-treated; a plant FOOD that is heat-treated or consists of raw seed sprouts, cut melons, cut leafy greens, cut tomatoes or mixtures of cut tomatoes that are not modified in a way so that they are unable to support pathogenic microorganism growth or toxin formation, or garlic-in-oil mixtures that are not modified in a way so that they are unable to support pathogenic microorganism growth or toxin formation; and

    (b) Except as specified in Subparagraph (3)(d) of this definition, a FOOD that because of the interaction of its AW and PH values is designated as Product Assessment Required (PA) in Table A or B of this definition:

Table A. Interaction of pH and AW for control of spores in FOOD heat-treated to destroy vegetative cells and subsequently PACKAGED

TCS FOOD means TIME/TEMPERATURE CONTROL FOR SAFETY FOOD ** PA means Product Assessment required

Table B. Interaction of PH and AW for control of vegetative cells and spores in FOOD not heat-treated or heat-treated but not PACKAGED

TCS FOOD means TIME/TEMPERATURE CONTROL FOR SAFETY FOOD ** PA means Product Assessment required

  (3) "Time/temperature control for safety food" does not include:

    (a) An air-cooled hard-boiled egg with shell intact, or an EGG with shell intact that is not hard-boiled, but has been pasteurized to destroy all viable salmonellae;

    (b) A FOOD in an unopened HERMETICALLY SEALED CONTAINTER that is commercially processed to achieve and maintain commercial sterility under conditions of non-refrigerated storage and distribution;

    (c) A FOOD that because of its PH or AW value, or interaction of AW and PH values, is designated as a non-TCS FOOD in Table A or B of this definition;

    (d) A FOOD that is designated as Product Assessment Required (PA) in Table A or B of this definition and has undergone a Product Assessment showing that the growth or toxin formation of pathogenic microorganisms that are reasonably likely to occur in that FOOD Is precluded due to:

      (i) Intrinsic factors including added or natural characteristics of the FOOD such as preservatives, antimicrobials, humectants, acidulants, or nutrients,

      (ii) Extrinsic factors including environmental or operational factors that affect the FOOD such as packaging, modified atmosphere such as REDUCED OXYGEN PACKAGING, shelf life and use, or temperature range of storage and use, or

      (iii) A combination of intrinsic and extrinsic factors; or

    (e) A FOOD that does not support the growth or toxin formation of pathogenic microorganisms in accordance with one of the Subparagraphs (3)(a) -(3)(d) of this definition even though the FOOD may contain a pathogenic microorganism or chemical or physical contaminant at a level sufficient to cause illness or injury.

What are proper hand washing techniques? 

• Vigorous friction on the surfaces of the lathered fingers, fingertips, 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.

 May I provide/distribute samples at a farmers’ market?
Yes.  TX Health and Safety Code, Chapter 437.020 outlines the regulation of samples at a farmers’ market. In general, the following applies:

• 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; and
• 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.

Per HSC 437.020(b-1), the regulatory authority may not require a permit to require 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. Per HSC 437.020(b-1), a temporary food establishment permit is not required to provide samples at a farmers’ market.

What are the requirements for providing samples as a part of a cooking demonstration at a farmers’ market?
Per HSC 437.0203(c)(2), a farmers’ market may distribute samples as part of the cooking demonstration if: 

• The demonstrator provides only a sample rather than a full serving; and 
• the samples are disposed of within 2 hours of preparation.

What are the requirements for performing a cooking demonstration at a farmers’ market? 

Per HSC 437.0203(c)(1), the following is required for a cooking demonstration at a farmers’ market: 

• A person with a certified food manager’s license supervising the demonstration; and
• Compliance with the requirements for a temporary food establishment permit.

Do I need a temporary food establishment permit to perform a cooking demonstration at a farmers’ market? 

Per HSC 437.0201(e)(1), 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 is done in good faith and with earnest intent to instruct and educate.

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' markets. The CFPO must comply with the guidelines as required in the law concerning Cottage Food Production Operations.

Can raw milk be sold at a farmers’ market?
No. Per HSC 437.020(e), raw milk cannot be sold nor samples of raw milk provided at a farmers’ market. However, per 25 TAC 217.31(b), Grade A raw milk and Grade A raw milk products may be delivered to a location determined by the processor and customer, including at a farmers’ market, as long as the delivery does not violate local ordinance.