D.C.’s Farmers’ Markets Face More Scrutiny Under New Regulations
Farmers’ markets around the city have officially begun hawking mustard greens and handing out sheep’s milk cheese samples for the season. This year, though, the rhubarb pies and ramps will come with one additional ingredient: new red tape.
Until recently, the destinations for your weekly local food fix were barely regulated. The D.C. Department of Health never inspected farmers’ markets, and market organizers had relatively limited interaction with the Department of Consumer and Regulatory Affairs.
But while everyone was fighting over where food trucks would get to park last year, it turns out the mayor and D.C. Council were also approving significant changes for D.C.’s farmers’ markets as part of the 83-page vending code update.
The new rules add greater oversight to a segment of D.C.’s food scene that’s grown and changed dramatically over the past several years. According to the Farmers’ Market Collaborative, founded by local nonprofit D.C. Hunger Solutions, the number of farmers’ markets in the District has doubled from 20 to more than 40 since 2007. And with that growth has come a slew of expanded offerings beyond kale and apples, including meats, cheeses, gelato, tacos, and even wood-fired pizzas. Now regulators are trying to catch up. The side effect? Markets will have to deal with more fees and more bureaucracy. As the new rules come into play with the start of the spring market season, market organizers and vendors say the changes are bringing plenty of confusion and some frustration.
“All the revisions that were going on with the food trucks, the farmers’ markets kind of got forgotten about, and we weren’t kept in the discussion,” says Reg Godin, director of markets and programs for FRESHFARM Markets, which operates six D.C. markets, including the popular Sunday one at Dupont Circle and those on Thursdays at Penn Quarter and near the White House.
One particularly problematic section of the new regulations says markets can’t sell food until they pass a health inspection. But that’s not possible given the temporary nature of farmers’ markets: Unlike grocery stores or restaurants, there’s no space for the health department to inspect prior to opening day. “We pointed that out, pointed that out, pointed that out. They acknowledged, they acknowledged, they acknowledged,” says Godin. “But somehow it still slipped through.”
Columbia Height Community Marketplace manager Josh Levine says the language of the regulations temporarily set up a catch-22: To get a business license from DCRA, markets needed a health inspection certificate. But to get a health inspection, they’d need a business license from DCRA—without one, there’d be nothing to inspect. “That was the one big technicality we had to straighten out,” Levine says.
DOH ultimately fixed that: There will be no pre-operational inspections in the traditional sense. Instead, market operators are now required to register with DOH and supply a list of all vendors and their various certifications and licenses from whatever jurisdictions they reside in. “A lot of the vendors are not D.C.-based to begin with, so it does add that extra layer of complexity,” says DOH Senior Deputy Director Rikin Mehta says. Food Safety Program Manager Rob Sudler adds: “We have to rely on the information that they’re bound to in those particular states, and we’re working with not only Maryland and Virginia, but also [U.S. Department of Agriculture] and [U.S. Food and Drug Administration], to make sure those certifications and licenses are accurate.”
Also new: random, unannounced health inspections of farmers’ markets—which never happened in the past, even though DOH had the authority to conduct them if it wanted. Sudler explains that DOH has never received any complaints about D.C.’s farmers’ markets, and no foodborne illness issues ever arose, “so we were very comfortable with what was going on.” But as the markets expand beyond fruits and vegetables and into more prepared foods, there’s more potential for health risks. DOH will evaluate markets’ risk level on a case-by-case basis and determine how frequently they might send health inspectors.
This month, DOH also published guidelines and restrictions for food sold at public markets. Among the items that could be affected: eggs. According to DOH, “an egg license issued by the FDA/USDA is required for anyone who transports and sells eggs anywhere except on the farm where the eggs were produced.” Many vendors who sell eggs, however, run small enough operations that they aren’t licensed with the USDA. Virginia, for example, doesn’t require those licenses for farmers who sell fewer than 150 dozen of their own eggs or fewer than 60 dozen of another producer’s eggs per week.
Arcadia’s Mobile Market—a refurbished school bus that visits underserved areas across the region to provide fresh foods—sells eggs from its own small farm in Alexandria. The eggs meets Virginia’s rules, but Arcadia may be restricted in selling them in D.C. Arcadia Food Access Director Benjamin Bartley says it would be “a huge drawback” if they lose the ability to sell eggs, “which are by every measure fresher and coming from a healthy verified source.”
Oysters at markets have also raised a potential red flag for the health department, even though the Dupont farmers’ market has sold them in the past. Several weeks ago, Rappahannock River Oysters began selling its bivalves there—its first foray into any farmers’ market. In addition to selling bags of shellfish, Rappahannock would also like to shuck oysters on site. But there was some initial confusion over whether vendors would be required to have a Certified Food Protection Manager license from DOH. So Rappahannock Sales and Events Coordinator Bernie Murphy called to inquire. The DOH representative he spoke to said he didn’t need it; only the market manager, who oversees the entire market, does.
Murphy’s call raised another concern: “She was saying, ‘Oh, you could be fined. Y’all shouldn’t even be selling oysters there,’” Murphy says. “She said, ‘You’re not a farmer.’ And I said, ‘Well, actually, the Department of Agriculture recognizes us as a farmer.’”
The DOH representative asked Murphy to send over Rappahannock’s paperwork, which he did. A few weeks and follow-up emails later, he hasn’t heard a word back about what he’s supposed to do. He says safety is his first priority, and he’ll gladly do whatever is required, but he can’t seem to find out what that is.
“We’re kind of unsure what’s going on, so we’re holding off selling shucked oysters for a little while,” says Rappahannock co-owner Travis Croxton. “It’s one of those things where they made a policy, and no one knows in the health department what it means. We’re kind of in a Waiting for Godot–type limbo.”
Sudler says DOH is still looking into Rappahannock and the way it displays and sells its products. “I wouldn’t say yes or no to any particular food until we evaluate it completely. And that’s part of what we’re doing now,” he says.
There are also a few other new bureaucratic requirements this year just to open a market. In the past, most market organizers dealt primarily with the Department of Transportation, which gives out public space permits. If vendors planned to cook food, the market would also need a propane permit from the Office of the Fire Marshall. If they were weighing vegetables on scales, they’d get a visit from DCRA’s Office of Weights and Measures.
Now all farmers’ markets are required to get a new vending business license from DCRA, which costs $433 every two years. Groups that had active basic business licenses can upgrade for free. But FRESHFARM pays for the new license on top of its basic business license for charitable solicitation, which is all it needed in the past. The new rules also require every market to have a registered market manager on site at all times. That person must obtain a vendor employee badge from DCRA ($55) and a food handler’s license from DOH.
“It was a pretty significant time commitment,” Levine says of the food safety component. “It was just a number of online classes plus an exam. I’d guess it was probably about 20 hours of my time. And for a tiny nonprofit running this market with one paid employee, that was kind of a big deal.” The class, test, and certification came to around $200, he says, in addition to the $433 for the business vending license. It might not seem like a lot, but “we are extremely tight on funds,” Levine says.
Last year, FRESHFARM paid the city more than $30,000 to operate its D.C. markets. The new regulations add about $3,000 more to the cost. Most of the money the markets were already paying goes toward the public space permits. FRESHFARM forks over $11,000 per year to occupy one block in Penn Quarter, one of its most expensive markets, on 8th Street NW between D and E. “You look across the country, a lot of the cities really support the farmers’ markets because it is a community amenity. It’s something they want to provide,” Godin says. “[D.C.] could provide us more support for the money that we’re giving them. I know we’re paying for the space, but at the same time, we’re only occupying it for seven hours, at the most eight hours [per week].”
Some city officials are trying to give markets that support. D.C. Councilmember Mary Cheh held a hearing in late March, where she proposed the District hire a food policy director—or “food czar”—who would coordinate various agencies around food issues, including markets.
In the meantime, many market managers say they’re waiting to see how things will play out.
“Without there being a track record for these agencies being more involved in farmers’ markets, we’re all kind of a little bit in the dark, hoping that if there’s any conflicting regulations between the agencies and miscommunications, we’ll all work together toward making a system that works well for everybody,” Arcadia’s Bartley says. “But yeah, market season for us is starting...and we still don’t have all the information we need.”
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Photo by Darrow Montgomery