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Farmers markets and the rules

What do the rules say? 21-Jun-2012 Source: ASPIO Guidelines [1245]

• In 2006, a public health inspector visited the Stonegate farmers market and told the market manager and farmers vendors that they were not meeting the requirements for farmers markets. Turns out, he made a mistake. CELOS researched the rules.

CELOS researched the rules around markets, including the Guidelines for Farmers' Markets

An Analysis of the Application of the Farmers Market Guidelines as produced by public health officials - 2006 (called ASPHIO Guidelines for Framers' Markets and Special Events") to farmers' markets.

The Introduction to the Guidelines gives the context for the June 2006 amendments to the Food Premises Regulation 562 of the 1990 volume of Ontario Regulations The regulations are made under the authority of the Health Protection and Promotion Act (HPPA) It states that the Minister's amendments significantly changed "the responsibilities and authorities of local public health units and public health inspectors and the way public healthh units address food safety issues at farmers' markets and special events."

It states that the Chief Medical Officer (CMOH) and the Minister of Health (MOHLTC) "have confirmed that the health hazard and related food safety protections will continue to apply under Part III of the HPPA in the sections that deal with: the duty to inspect and issue orders re: health hazards, notice of intent to commence food premises operation, prohibition of sale of unfit food, of unpasteurized milk or milk products, seizure and destruction of food deemed unfit, and right of entry and conducting examinations, investigations and tests."

It states that the Livestock and Livestock Product Act and the Food Safety and Quality Act both continue to apply to farmers' markets.

It states that the guidelines were drawn up after a meeting of stakeholders, with the goal of minimizing the risk of food borne illnesses for the people who buy things at "these exempted premises". The purpose of the guidelines is to standardize "strategies and policies" of public health and "clarify the roles, responsibilities and legal authorities under the HPPA and the Food Premises Regulation.

It appears, however, that the legal authority of public health in relation to farmers market is to inspect markets to prevent “health hazards”, as defined by the HPPA. The intent of the Regulations is to establish extremely detailed requirements for how any “food premises” (essentially, the definition covers anywhere except private residences) must be run, and food handled, with a focus on particular requirements for meat, milk and eggs.

The regulations were amended with the purpose of exempting farmers’ markets and church suppers, so that public health inspectors will not apply these regulatory food handling criteria to them. If a markets meets the definition of a farmers’ market - 51% of farmers, primarily selling their own produce - this triggers the exemption from the regulatory requirements, and gives the inspectors the legal authority to monitor whether or not the market is exempt. It would seem that the effect of exemption is that any reference to the standards for handling food under the regulations (including the definition of a “hazardous food” and inspections for “pathogens”) would not apply.

However, the clear thrust of the Public health guidelines are to insist upon public health’s role in the monitoring and “surveillance” of markets and church suppers, with the rationale that they have a legal duty to prevent health hazards in their area and they suggest, by their inclusion of the provision about the inspection of food premises, to inspect food premises.

The fact that farmers’ markets and church suppers are exempt from the regulations strongly suggests that public health has no authority over inspections or assessments unless they are notified of an actual “health hazard” - e.g. someone gets sick from food that was sold. The working group maintains that public health has a residual authority to prevent “health hazards”. This appears to be clear, as the Minister exempted markets from the food premises regulations but not from the HPPA as a whole. “Health hazards” however, is defined in the law as premises or substances that is likely to have an adverse effect on the health of any person.

In the HPPA, “health hazard” means, (a) a condition of a premises, (b) a substance, thing, plant or animal other than man, or (c) a solid, liquid, gas or combination of any of them, that has or that is likely to have an adverse effect on the health of any person; (“risque pour la santé”)

It seems that a “health hazard” would refer to an objective standard, based on actual, documented cases of (in our case) food that made people very very sick, not on different possible situations that could theoretically arise, ESPECIALLY AS SIGNIFICANT RIGHTS AND A POWER TO INTRUSION AND INSPECTION ARE TIED TO THIS THRESHOLD. This is particularly significant in this case, as during the legislative debates concerning this exemption, there was no hard data to suggest that food poisoning was a serious issue at farmers' markets or church suppers. Is the threshold the harm that is likely to occur based on real, reliably documented harms, or on projections without a basis in hard data?