Draft and Proposed Rules - Retail Food Establishments


Draft Rules

Farmers' Market Draft Rules Informal Comments


Legislative Updates


Senate Bill 617

SB 617 (87th) amends Texas Health and Safety Code (HSC) Chapter 437.0065 and 437.020 regarding farmers’ markets.  The amendments to 437.0065 affect permitting at farmers’ markets, while the amendments at 437.020 change definitions.

I. Definitions

The legislation clarifies who may sell products at a farmers’ market by changing the definition of “farmers’ market” at HSC 437.020(a)(1) and adding a new definition for “food producer” at HSC 437.020(a)(3). 

 A farmers’ market is now defined at HSC 437.020(a)(1) 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.”

 The new definition of  food producer at HSC 437.020(a)(3) is “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.”

DSHS INTERPRETATION:

DSHS considers the two definitions, when used together, to be an effective prohibition of a jurisdiction from construing the statute so as to exclude non-farmers or non-farm-related vendors and products from farmers’ markets within its jurisdiction.  The term “food producer,” as added by the Legislature, is purposely broad so as to leave room for a diversity of vendors at a farmers’ market.  This may include farmers selling produce, meat, or poultry.  It may include a temporary food establishment.  It may include a booth set up by a permitted or licensed off-site food manufacturer or food establishment to sell their products to consumers.

 NB: “Food producers” who bring into farmers’ markets food that has been prepared elsewhere are subject to all applicable regulatory requirements, including approved source of the food and appropriate permitting or licensing of the production facilities.

 II. Permitting

The bill amends HSC 437.0065(b)(2) to include “food producers,” under the new definition, in the same category of permitting requirements for farmers’ markets as already set for farmers in HSC 437.0065(c).  Both farmers and “food producers” are now eligible for the $100.00 per annum fee for a farmers’ market permit.

The bill adds language at HSC 437.0065(c)(3) to stipulate that the $100.00 per annum permit for a farmer or food producer to vend at a farmers’ market must apply to all farmers’ markets within the jurisdiction.

Finally, the bill adds new HSC 437.0065(d) and (e) to allow farmers and food producers to file suit against governmental entities that do not comply with the permitting requirements set forth in HSC 437.0065(b) and (c).

DSHS INTERPRETATION:

DSHS interprets the legislation as intending that “food producers” be allowed to sell at farmer’s markets and be afforded the same permitting rights as farmers.

The legislation clearly ties HSC 437.0065 to the new definitions of “farmers’ market” and “food producer” by stating as much at the beginning of the section in (a).  It goes on to include “food producer” in (b)(2) as being subject to the requirements and allowances for permitting at farmers’ markets—namely a permit valid for a year, with a price not exceeding $100.00, and covering sales at all locations in the jurisdiction that fall under Subsection (b), i.e. at all farmers’ markets in the jurisdiction. 

NB:  DSHS does not interpret the new language in HSC 437.0065 as an allowance for “food producers” to operate under the farmers’ market permitting rules in venues outside the scope of 437.0065(b) and that do not meet the definition of a “farmers’ market” in 437.020.  In such cases, the regulatory authority can follow its usual procedures for permitting.

III. Other Considerations

SB 617 became effective immediately upon passage of the bill.  DSHS is engaged in amending the Farmers’ Market rules—25 TAC 229, Subchapter FF—to incorporate the changes put forward in the legislation.

House Bill 1276

HB 1276 amends HSC 431.2211 and adds new HSC 437.026 to accomplish the following:

  • The bill allows the sale by a permitted Retail Food Establishment of surplus, unprepared food products and ingredients—e.g. meat, poultry, produce, etc.—to retail customers.

  • The bill requires that all products come from approved sources.  Meat and poultry must come from sources that have been inspected and that bear the USDA or TX MSA mark of inspection.

  • Packaged products must bear labels that comply with TFER requirements.

  • A retail food establishment is exempt from the requirement to obtain a Food Manufacturer License (DSHS or Local) for packaging/repackaging and labeling products that fall under HB 1276. 
    • N.B.:  Activities that fall outside the scope of HB 1276 will still trigger the requirement for a Food Manufacturer License from DSHS.

  • All products must be of sound condition.  TCS products must have been held at 41°F or below.

  • HB 1276 is effective immediately.  It will not require amendment of TFER or the GMPs.

House Bill 2213

HB 2213 amends HSC 433.006 as follows:

  • The bill exempts from inspection “exotic animals exclusively for donation by a hunter to a nonprofit food bank.”
  • Slaughter and preparation may be conducted at the owner’s premises, the premises where the hunter killed the exotic animal, or at a processing establishment.
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  • Transportation is limited to moving the meat to and from the locations listed above and the nonprofit food bank.
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  • The uninspected exotic meat must not be combined with inspected meat or poultry products.
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  • The bill is effective September 1, 2021


Last updated December 7, 2021