Food-Related Illnesses

Overview

Food can be hazardous. Thousands of Americans are hospitalized by food-borne illnesses every year. Others are harmed by food allergens or by impurities in food, such as tiny pieces of metal, glass, or plastic. Some people shop at farmers markets to find safer, more wholesome food. Customers appreciate the small number of production points, local sourcing, responsible growing practices, familiar faces, and fresh food. Yet, terrible things such as these incidents can still occur at farmers markets:

• Food sampling can lead to an outbreak of E. coli.
• A prepared food vendor could be shut down for unsafe practices.
• An animal could contaminate a berry field, leading to hospitalizations and even death. If these berries are sold at farm stands and farmers markets, the source can be difficult to pin down, leading to loss in sales for a national crop.

When talking about food safety incidents, everyone wants to know who is responsible. The answer can be quite simple: whoever caused the problem is responsible for the problem. It can get a little complex to determine who caused the problem, but it’s often quite straightforward. For example, if the farmers market is distributing donuts made by volunteers at the market’s info station as a market attraction, the market is responsible for the safety of the donuts. If a farmer sells spinach contaminated with bacteria that causes an illness, the farmer is responsible for that.

For an overview of food-related illness as a legal risk, see page 3 of this printable resource. 

Legal Liability

As vendors are usually the ones handing the food, they generally bear most of the legal responsibility for food safety. But, even when an injury is caused by a vendor’s actions, the market may still bear some responsibility. For example, the farmers market’s rules can be so lenient that food safety incidents become more likely. Also, a farmers market may not adequately screen vendors for safe food practices before admitting vendors, or sufficiently enforce existing food safety rules. Each of these things can lead to legal liability for the farmers market, even though the vendor’s actions directly caused the problem. Of course, the vendor itself may hold most of the responsibility for the incident, but that doesn’t mean the market doesn’t share in a small part of the liability, legally. Even if the market doesn’t become legally liable, one bad incident can be enough to ruin the market’s reputation with vendors and customers alike.

A few practices in particular can create more risk for a farmers market:

• Sampling

  Sampling is an important feature of many farmers markets, to get customers to try new products, but can create additional risks. Some counties and cities prohibit the practice; check with local or state health departments about sampling regulations. For a safe sampling checklist (provided by the Michigan Department of Agriculture and Rural Development), click here.

• Preparing or processing foods off site

  “Prepared” or “processed” in this case means anything that has been altered or added to, beyond basic trimming. For example, cutting a squash in half and seeding it would be preparing/processing food. The same is true for peeling, mixing (greens, for instance), canning, drying, juicing, and other basic treatment of food. “Prepared” or “processed” also refers to baked goods and hot meats. Prepared foods are also subject to particular laws and regulations. Preparing foods may require vendors to obtain state or local inspection and licensing. The regulations are often different depending upon the level of preparing or processing. Proper labeling is a common requirement.

• On-site food preparation

  Preparing foods on site may require vendors to obtain state or local inspection and licensing. Whether licenses are required often depends on who is doing the preparation, how often it's done, and what is being served.

Especially with food safety, an ounce of prevention is worth a pound of cure.

Photo Credit: Erin Buckwalter, NOFA-VT

Consider providing handwashing stations and hand sanitizers for your vendors, as well as customer access to clean bathrooms with good washing facilities. Even if it’s not required, this may help prevent some problems. Many prepared food vendors will already be required to set up handwashing stations for themselves as part of their permit obligations.

Indemnification agreements

Farmers markets may consider requiring vendors to indemnify the farmers market. If a vendor indemnifies the farmers market, the vendor agrees to pay the farmers market back for any damage the vendor causes for the farmers market. A simple indemnification agreement is not hard to write, but it can be difficult to understand exactly what it does and does not do for both parties. As such, interested farmers markets should work with an attorney to write such a clause specific to their market. Many farmers markets use “boilerplate” agreements that they get from books, other markets, the internet, and other sources with the hope that these agreements will relieve them of liability. These agreements go by many names, including “hold harmless,” “indemnification,” or “waiver of liability” agreements. The bottom line is that if these agreements are not drafted by an attorney and specific to the individual market, the agreements may not be enforceable in court or may be very limited in their application. Again, farmers markets should work with an attorney who can examine exactly what the market does, who vends at the market, and which risks may be waived or indemnified in the state where the farmers market operates to ensure that the agreement will work in court in the way that the market expects. Attorney consultation is the only way to get a vendor agreement that will be enforceable in court in waiving any of the obligations a farmers market owes to vendors, customers, landowners, or others.