Someone said recently the new federal food safety law was friendly toward small farmers, that if your annual sales are less than $500,000 you’re pretty much off the hook. Someone didn’t quite get the whole story.

While it is true that the 89-page federal Food Safety Modernization Act (FSMA) “exempts” smaller farmers from some new regulations, it also defines both farmers markets and CSAs as “retail food establishments” that are subject to future licensing and inspection.

Exactly what that will mean remains to be seen. Under the new law, the secretary of the Food and Drug Administration (FDA) has from six months to more than two years to promulgate rules and guidelines. In the meantime, however, several states are working on their own food safety laws that could affect farmers market vendors and possibly CSA farmers as soon as this season.

Pennsylvania is leading the food safety trend at the state level. (Other states known to be moving rapidly ahead on food safety modernization include Maryland, Oklahoma, Texas, Iowa, Michigan and Oregon.) A Pennsylvania law passed late last year, known as Act 106, strengthens oversight of food safety inspections of all retail food facilities, including the state’s 1,200 markets and farm stands.

Pennsylvania Department of Agriculture officials held two meetings recently to explain the new requirements to farmers. At a meeting in southeast Pennsylvania in mid-March, more than 100 farmers attended in person and 50 watched via the web. The crowd was understandably tense, its mood almost ugly at times. After all, it was only weeks before markets opened for some farmers, yet jumping through all of PDA’s newly announced food safety hoops might take months. The scene was set for a classic food fight, but flexibility and reason prevailed.

Both PDA and the Pennsylvania Association for Sustainable Agriculture (PASA) had been flooded with phone calls and emails from panicky farmers after news of the new regulations broke in late February. While the new law is a done deal, actually implementing it remains very much a work in progress.

At first read, the new regulations seemed downright draconian. The new state food safety law defined a “retail food establishment” this way:

“An establishment which stores, prepares, packages, vends, offers for sale or otherwise provides food for human consumption and which relinquishes possession of food to a consumer directly, or indirectly, through a delivery service such as home delivery of grocery orders or delivery service provided by common carrier.”

Section 5703 (a) added this kicker:  “It shall be unlawful for the proprietor to conduct or operate a retail food facility without first obtaining a license for each retail food facility.”  Civil penalties range from a “summary offense” for the first offense up to a fine of $10,000 for each offense.

Even worse, PDA guidelines drafted while the ink was still drying on Act 106, said:  “All food sold in farmers markets must be from approved, inspected sources. As long as produce is being sold in a whole unprocessed or uncut state, no licensing is required, however inspections may occur. If a stand wishes to sell cut produce, cut leafy greens or any other processed produce, then licensing will be required.”

The Retail Food Facility License Application and Plan Review “must be fully completed, returned with all necessary accompanying documentation … prior to the preparation/sale of foods from a retail food facility AND at least 60 days prior to opening.” The 6-page application is to be accompanied by a current water test, affidavit from a certified sewage enforcement officer that the septic system is legal and functioning properly, proof of issuance of or application for a state sales tax license, assurance of compliance with zoning codes, list of all floor, wall and ceiling finishes, proof of a Certified Food Handler on staff and payment of $103.

“We were blindsided,” said Brian Moyer, a farmer and PASA board member, who helped organize two short-notice informational meetings for farmers.

The first farmer to speak at the meeting was a beginning farmer who recently moved to central Pennsylvania from Chicago.  “How many people have gotten sick on food from farmers markets?” he asked. Never mind, state officials said. We’re not here to debate, and the purpose of the law is not a commentary on the products at farmers markets.

For the longest time, food safety laws in Pennsylvania were an outdated patchwork of pieces cobbled together over the years, explained Jean Lonie, PDA’s director of communications. “The Auditor General reviewed food safety in Pennsylvania and said, ‘Look.  This isn’t going to work.  We really need a comprehensive fix,’” she said. “Act 106 is the culmination of nearly six years of effort … it was designed to clarify and strengthen oversight of food safety inspections in Pennsylvania. When we talk about that it’s really a very wide gamut. It’s from farms to farmers markets to fork, so there are a lot of different things we’re trying to cover. Whether you’re wholesaling, you’re retailing, you’re a ready-to-eat retail food facility or you’re a farmers market, all of that falls under the charge we have as an agency to protect consumers and make sure food is safe,” said Lonie. “Farmers markets are impacted through a definition change, and that’s why we’re here tonight. You want to know what it means to you. We want to help give that clarity.”

There was one really big problem with farmers markets in the past — each market had only one license through the market master. As farmers markets became more numerous and popular, they also became more diverse. Enter ready-to-eat products.

“The challenge with that is the way that the law was, if that ready-to-eat area had a violation, the whole market got shut down. It didn’t matter if you were doing the right thing or not. Because there was one license, that whole market was shut down. And we felt that that had the potential to negatively impact folks who were trying to take advantage of the direct to consumer area. So the change is that now each vendor is individually licensed as a retail food facility,” said Lonie.

One farmer complained about selling at multiple markets.  He said he sells at four markets in four different jurisdictions, is inspected by four different inspectors — and they all want different things. “We would like uniformity!” he said. Multiple license would be a great idea.

“That’s the exact purpose of the new law,” said Lonie. It’s also why state agriculture officials have been meeting with county and local health inspectors to explain the new state law in an effort to level the playing field.

“The state decided they would step in and work with counties and cities where there are areas of contradiction or confusion, which is kind of a victory,” said Stacy M. Miller, executive director of the Farmers Market Coalition, who drove from Washington, D.C., to Pennsylvania to attend the March meeting. “There needs to be clarifying and streamlining across the board.”

Another farmer complained about having to buy multiple “mobile” licenses, originals of which must be displayed at each market, even if the farm is selling at several markets at the same time.

“We have to solve that multiple licensing issue.  We’ve got to fix that one,” PASA Executive Director Brian Snyder told Lonie.

Mobile licenses were first issued to vendors at fairs and carnivals.  “There is no reason why they can’t make duplicate originals. When applying, a farmer can say, I want X copies,” said Stacy Miller. Pennsylvania already has a similar procedure for receiving multiple registration certificates for a motor vehicle. Ordering a duplicate registration involves checking a box on the renewal application and paying an extra dollar for each duplicate.

In dealing with state bureaucracies, Miller said having an advocate such as PASA or a state farmers market association is critical for success. The time for stakeholders to get involved and provide input is at the beginning of the process, not after laws have been passed and regulations have already been written in a vacuum.

PASA’s Snyder agreed.  “Get as many people working in the same direction as possible.  Jurisdictional issues will need to be worked out. There is a movement across the country to amend those laws.”

As for the law and guidelines already in place in Pennsylvania, Snyder said, “We need summer under our belts to see how it works.”

George DeVault already has his Pennsylvania Nursery/Greenhouse license ($40), his state sales tax license (no charge), and “License to Operate a Public Eating and Drinking Place” ($51) at a new farmers market in Bethlehem, PA.  At another market, he needs no license to sell “raw” fruit and vegetables, but he must buy a “Farm Market License” ($40) to sell eggs, since they are considered “potentially hazardous.”