A potluck where money is exchanged?
August 1, 2010 9:15 AM   Subscribe

I'd like to start an underground farmers' market, but I'm worried about regs and liability

I love food. I also love making food, from jerky to cheese, to pickles to canned goods, etc. Inspired by this project in the Bay area, I'd like to explore the possibility of getting an underground farmers' market going in Austin, TX. I've read over the health dep't regulations, and they make it pretty clear that any non-bake sale food prepared for sale needs to be made in a commercial kitchen (expensive). Fresh veggies from your garden seem to be cool. Can I pull this off without getting myself or others into trouble? You are not my lawyer.
posted by Gilbert to Food & Drink (28 answers total) 5 users marked this as a favorite
Can I pull this off without getting myself or others into trouble?

posted by grouse at 9:17 AM on August 1, 2010 [3 favorites]

A word of warning: The Greenpoint Food Market here in Brooklyn was recently shut down for this sort of thing.

That said, I don't think anybody got in "trouble" for it - it was more like a collective "ummmm, no," from the Health Department.
posted by Sara C. at 9:19 AM on August 1, 2010

Have you checked out the Austin Famers Market?
posted by Carol Anne at 9:35 AM on August 1, 2010

I think the worst things that could happen is that they close you down and fine you. Unless someone gets sick from your food. As an alternative, why not rent commercial kitchen space?
posted by Houstonian at 9:53 AM on August 1, 2010

Mega-gross. Who wants to eat anything prepared in your filthy bug-infested kitchen?

Health safety regulations exist for a very important reason. Besides that, you'd have to be crazy or have nothing to lose to operate such a thing without proper insurance.

If there isn't a kitchen available to rent, maybe you could build one! If there were enough people interested in using it, you could spread the costs around and break even.
posted by pantsonfire at 9:54 AM on August 1, 2010 [4 favorites]

I'm aware of the local farmers markets, Carol Anne. $50 annual fee plus $40 per day for a spot ($30 on Wednesdays). Add in about a $22/hr. to rent a commercial kitchen for about 5 hours (this is off peak - from 8pm to 8am). Now I need a food manager certificate, and anybody helping me needs a food handlers certificate. That puts me about $200 in the hole before I can even set up my tent. Oh, and I need to buy a tent. You see where I'm going here.

Who wants to eat anything prepared in your filthy bug-infested kitchen?
If that was an accurate description of my kitchen, I would definitely agree. And there are many many people whose food I would not eat. I can only stake my reputation on the food I've made, and thus far, it's been solid.
posted by Gilbert at 10:10 AM on August 1, 2010

This reminds me of the question from a couple of years ago about selling brownies from the trunk of a car.

I'm afraid that there's not going to be a way to build a market for your goods even if you could find a place to sell them under the radar. I'm with pantsonfire, I wouldn't buy food from an unlicensed vendor.

But maybe UT kids would. What about setting something up on or near the drag. Then, be prepared to run when the cops come by.
posted by vincele at 10:35 AM on August 1, 2010

If that was an accurate description of my kitchen, I would definitely agree. And there are many many people whose food I would not eat. I can only stake my reputation on the food I've made, and thus far, it's been solid.

Right, but the inherent problem with this logic is obvious, isn't it? Who on earth wouldn't say, "Trust me, my kitchen's clean!" In reality, the reason that you have to register for these kinds of things is so a third-party can inspect your kitchen rather than just taking your word for it.
posted by proj at 10:37 AM on August 1, 2010 [8 favorites]

Right, but the inherent problem with this logic is obvious, isn't it? Who on earth wouldn't say, "Trust me, my kitchen's clean!" In reality, the reason that you have to register for these kinds of things is so a third-party can inspect your kitchen rather than just taking your word for it.

That's a bingo.
posted by InsanePenguin at 10:42 AM on August 1, 2010 [1 favorite]

At the risk of igniting a storm, the crux of this question is essentially like the recently controversial question about working under the able -- "I would like to earn some money from my labor but I want to do it in a way that I don't have to incur the costs required of others who have decided to earn some money in the legally prescribed way." I'm sure every small businessman would love to not have to pay the fees for the farmer's market, would love not to have get inspections and certificates, etc., because they all eat into the bottom line. There are plenty of people in your exact position and, as seen in the MetaTalk thread about working under the table, people hold very strong opinions on this subject.

The money required to participate in the market is not just venal rent-seeking, though. The certification fees exist to pay inspectors who make sure you're not getting sick every time you eat somewhere. The farmer's market fees exist to pay for the time and space that is required to hold a farmer's market. By grouping lots of farmers together regularly on the same plot of land, the farmers benefit from coordination effects and increase the number of potential customers they have. Otherwise, there would just be stalls here and there spotted all over the city, and that doesn't help anyone. It also helps the consumer by having many alternatives nearby which increases price competiton.
posted by proj at 10:51 AM on August 1, 2010 [1 favorite]

To add to my previous answer, you shouldn't consider doing this without liability insurance. Which you won't be able to get as an illegal business.
posted by grouse at 10:52 AM on August 1, 2010 [2 favorites]

I can only stake my reputation on the food I've made, and thus far, it's been solid.

The entire point of living in a cooperative society with health and safety rules is so that I don't need to rely on your personal reputation in order to safely eat your food. I'm sure Gary Hirshberg is a nice guy who washes his hands, but I didn't factor that into my yogurt purchasing decision today because I know that the manufacturing process is strictly regulated, and while there is a chance I'll still get sick from the product, that chance is very, very small compared to eating homemade yogurt from my very own kitchen.

There are massive problems with our food industry, for sure, but the requirement to cook in a commercial kitchen with commercial equipment is not only completely sane but something you could easily achieve by pooling resources.
posted by odinsdream at 10:56 AM on August 1, 2010 [1 favorite]

This reminds me of the question from a couple of years ago about selling brownies from the trunk of a car.

It reminded me of that question, too. I even looked to see if the poster commented on that question (he didn't). It was sixcolors, "Tapping into a potential goldmine." We were a little hard on her, but it's worth a read to get some additional ideas and feedback about what people think of buying foodstuff made from home. One of Jessamyn's comments seems particularly on point to this question: It takes money to make money.
posted by Houstonian at 10:57 AM on August 1, 2010 [3 favorites]

proj, InsanePenguin, I get that. But as I mentioned above, bake sales are exempted completely from all of this. So I'm allowed to make people sick with pecan sandies but not with pickled okra, which is inherently less likely to be problematic. I'm not really arguing with your conclusions, and I'm starting to realize I don't have a leg to stand on; I'm just a little frustrated with the state of the law in this area.
posted by Gilbert at 11:04 AM on August 1, 2010

The bake sale exemption is a common one and essentially exists because it would be seen as a public relations nightmare to outlaw little Suzie and Bobby from selling brownies at PTA meetings. There's absolutely no legitimate reason why they should be exempt as well, so arguing that it's not fair that they can bypass the law but you can't may be totally right but it's just the lay of the land. It's not the law in your area -- that's pretty much the law everywhere.
posted by proj at 11:08 AM on August 1, 2010

Sorry, I meant this area of law, proj. Were I a Tyson, I'd be able to sicken people with impunity. But since I'm instead a food geek who wants to meet/sell food to other food geeks, I'd need to be an outlaw. Lay of the land, indeed.
posted by Gilbert at 11:28 AM on August 1, 2010

Have you explored the idea of taking the commerce end out of this? If you are just a food geek that wants to meet other food geeks and try other food, you could just start some kind meetup group that meets and exchanges food.
posted by proj at 11:31 AM on August 1, 2010

For the record, it's not the law in NC. There are several classes of food that you can bake at home, with a few other stipulations (like no dog in the home).
posted by artifarce at 11:33 AM on August 1, 2010

Home canned goods are completely different than cookies or brownies made for a bake sale. People are suspicious of home canned food and for good reason. You already know, all it takes is one mistake: forgetting an ingredient (not enough acidity), not heat processing jars long enough at the correct temperature or having some contamination to cause people to get really sick from eating your product. I am a prolific canner. I've got a couple gallons of tomato paste and marinara simmering on the stove right now. I feel like my kitchen is very clean, save for the trio of dogs running through regularly and the back door that is constantly opening and shutting, letting a stray fly inside the house. I don't wear a hair net or gloves. I usually am drinking a beverage while I work and sometimes will be having a snack while I wait for something to finish cooking/processing. Everything in my kitchen has been used to process all kinds of tree nuts, poultry, fish, eggs. I wash most of my dishes in my kitchen sink and don't use scalding hot water. All these things are HUGE no-no's for the world of food processing and would squick out the average consumer.

I only use my home canned foods for personal consumption. Some of the less risky foods like jams, I will gift or trade with other home canners or give to people I know will actually enjoy them and eat them. There is nothing so depressing as visiting a friend whom you gave a precious jar of raspberry jam that you picked from your garden yourself, carefully prepared and canned...and seeing that jar still sitting, unopened in their cupboard a year later. Like I said, the majority of people are uncomfortable with consuming home canned foods. I feel like if I had a professional set up (commercial kitchen), health department certification, proper ingredient labeling, liability insurance, things would be different.
posted by pluckysparrow at 11:40 AM on August 1, 2010 [1 favorite]

And I added my data point to point out that the negative reactions in this thread to "eww, someone's kitchen!" aren't backed up by ALL legislative systems, but more specific realities such as dog hair or things pluckysparrow comments on (in NC for example, home canned goods aren't allowed, but jellies are).

I'm not sure how this helps or doesn't help, but I do share this frustration at consenting adults not being able to take their own risks regarding food. I have bought baked goods over Etsy though. You might see what nonperishables in your repertoire would fit in there.
posted by artifarce at 11:44 AM on August 1, 2010

@pluckysparrow, I would definitely pay you for a jar of marinara, if I didn't already have 20# or so of canned San Marzanos in my pantry. If I found a hair, a bug, potato chip crumbs, or got sick, I would not do it a second time.
Yeah, things go wrong when canning, but it's usually pretty obvious when they have. Jars that didn't seal go to plan B. Anything fuzzy goes in the trash. Since you're an experienced canner, I bet you sterilize your jars and equipment, take good care to keep your hands clean, and never have made yourself ill. Am I wrong?
People who won't eat your jam are schmucks, and don't deserve a second pint. Our loquat sorbet went fast, I'm glad to say. Our jerky is a much anticipated Christmas treat.

@proj, I think you might be on to something. Any profit I made would have probably gone to food anyway, so there's not really any value lost there.
posted by Gilbert at 12:13 PM on August 1, 2010

The Craft Mafia folks pool their resources and only pay for one booth at craft shows to sell all their different kinds of crafts. Why not start an Austin Food Mafia for the same purpose? Lots of food crafters out here who would join if only someone else would do the organizing.

You could start out by selling the legal bake sale sorts of food and using the funds earned towards renting kitchen space and paying for the licenses needed to sell the other sorts of food at other events.

Of course, I know nothing about the legalities of the situation, so maybe that Couldn't Work AT All.
posted by Brody's chum at 12:29 PM on August 1, 2010

You see where I'm going here.

I'm a socialist, myself, but isn't that the name of the game in capitalism? I can't think of very many businesses that require little to no startup capital to get the ball rolling. And $200 for the proper permits and such doesn't seem like a lot to ask.

If I were you, I would seriously look at what the Greenpoint Food Market folks (in my link upthread) are doing to get their projects in line with local food handling laws. While they've been shut down in the short term, the regular vendors all got together and pledged to find a way to reopen the market to health code by this fall.

MeMail me if you want more info than might be on the blog - I'm on their mailing list and have some meeting minutes and the like filed away somewhere.
posted by Sara C. at 1:30 PM on August 1, 2010

Just following up...nobody in my household or that I've cooked for has ever gotten ill from my home canned items. I do sterilize everything scrupulously and have actually gone through management level food handling certification (for a previous job), so I know all the rules & what can happen if I don't follow them.

That said, I would definitely trade or buy home canned items from people I knew and trusted. I do have an older person in my extended family who heat processes her canned tomatoes in the oven. No frickin' way will I eat anything she cans, other than jam. Some of the old school methods of canning are kind of scary from a food safety perspective. You never really know what methods people are using.
posted by pluckysparrow at 4:20 PM on August 1, 2010

You could stand on a street corner wearing a trench coat with your various products fastened to the inside of the lapels and flash passersby and say "Hey buddy, wanna buy some zucchini relish?"

But seriously, although I agree that the ethical and probably prudent thing to do is to go the legal route I wonder what the likelihood of actually being caught is especially for a small-scale operation.

For one thing in several parts of the country I have known a fair number of restaurants that were pretty obviously unsanitary which have seemed to go on like this continuously without getting shut down, some I've even gotten sick at more than once for foolishly giving them benefit of the doubt and assuming that the first time was a fluke.

Another anecdote is that here in New England, in the fall at the end of the season many apple orchards hold what are called "cider parties" to produce apple cider from the remaining apples that aren't marketable (i.e. the ones that fell to the ground before they were picked but aren't yet completely disgustingly rotten.) Friends and family come to participate and drink but often they'll also sell the cider at the roadside as it's made, which when I've seen it has been in plastic jugs they bought empty somewhere marked "pasteurized". And I'm like, dude, that is so totally not pasteurized, I just helped you pick up a bunch of apples covered in bugs and dirt from around the roots of the trees and throw them straight into the grinder.

But although I'd assume this is illegal (these aren't the kind of orchards that have quaint little shops attached and sell directly to consumers normally) I've never heard of anyone being fined or otherwise held accountable. Of course this is a rural area too, I'd expect that enforcement is more rigorous in a citified area, and maybe varies from region to region anyways. Perhaps you could find an area where enforcement is more lax to hold the market? Or do the fines themselves vary from place to place so that you can at least choose an area that would be cheaper to get caught in?
posted by XMLicious at 6:22 PM on August 1, 2010

I wonder what the likelihood of actually being caught is especially for a small-scale operation.

Here in Brooklyn it only became an issue when the New York Times did a feature on the market and someone figured out it wasn't legal. I'm pretty sure the folks who started the market didn't even know what they were doing violated health codes.

They'd probably be fine, in Austin, if nobody got sick and it didn't get big enough to be noticed by anyone who cares about this sort of thing. But, being a business, I'd guess that the goal is to get bigger and attract attention. Which means you might as well learn from others' experiences and do your due dilligence.
posted by Sara C. at 6:34 PM on August 1, 2010

Thanks, everybody, for your thoughtful comments; they've given me a lot to think about. I believe I can still resort to some sort of quasi-legal way to offload five pints of sauerkraut, but I'm rethinking how exactly that will happen.
This idea has mostly grown out of frustration with what xmlicious and artifarce describe, namely, that a certificate from the city guarantees virtually nothing; just check out the restroom in your local hole-in-the-wall (hint: that's the room they *let* you see).
I have no illusions about selling homemade goods without having to lay out my own costs, but the idea of going so far in the hole when all I have to offer is a couple of jars of pickles and maybe a chutney or a pound of jerky is really not a way to even make my costs back. I've really not thought of this as a moneymaker, but more as a way to make friends and contacts, and maybe get some good preserves.
I'm marking this question resolved, though it may appear again in some other form, assuming the mods are ok with that. Again, thanks for the input.
posted by Gilbert at 9:11 PM on August 1, 2010

If you don't have enough product to make starting a legitimate business worthwhile, you should just give your leftovers to friends, as a gift. There is nothing wrong with just saying, "I made sauerkraut and I had a ton left over, here's a jar for you!" You can just do this for fun if you want - not every hobby has to be an all-consuming passion.

Also, it would probably be perfectly legal to set up some kind of non-monetary "foodcraft swap meet" if you really only want to meet new people and try some yummy preserves.
posted by Sara C. at 9:20 PM on August 1, 2010

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