Cultivating a Successful Farmers’ Market

By C. Christine Fillmore, Esq.

A great farmers’ market is a lot of things. It is ripe tomatoes still warm from the sun and fresh herbs that smell so good you want to eat them on the spot. It is golden honey and just-baked pies. It is lemon verbena soaps and beautiful candles. It is a conversation with the local gardening expert who can tell you how to grow anything (and when to try something different). It is a place for children to try a craft, for families to spend an afternoon, for neighbors to reconnect.

What it is not, however, is an accident. A great farmers’ market is well-planned and executed by enthusiastic people who believe that the result is worth the effort. The resources are there—local farmers, artisans and bakers are in or around every community. A farmers’ market not only supports these local efforts, but also fosters a sense of community and celebrates the season.

According to the New Hampshire Farmers’ Market Association, in 2007 New Hampshire was home to almost 60 regular farmers’ markets. Why are they so popular? For one thing, local markets are a way to find very fresh products in a convenient location. According to a 2003 study conducted by University of New Hampshire (UNH) Cooperative Extension, people are most likely to visit a farmers’ market within five miles of their home. Local markets are also a way for neighbors to connect and are a very family-friendly activity. Perhaps most importantly, New Hampshire communities are concerned about the future of their farms. The UNH researchers have found that most farmers’ market shoppers make a conscious choice to buy from local farmers and artisans as a way to help keep local agriculture viable.

A well-run farmers’ market can be a wonderful addition to a community. The following tips and information can help start the planning process for a new market or improve the operation of one that is already established. With an understanding of the planning process, some of the legal considerations and where to go for more information, local markets can run smoothly for years to come.

Who Will Participate?
The market should be fun! The quintessential attraction, of course, is fresh local produce. A wide variety of fruits, vegetables, herbs, flowers and plants will often be enough to make residents return week after week. However, there are countless other vendors and activities that may help to make your farmers’ market a great success. Local farmers and bakers also produce a wonderful array of syrup and honey, jams, jellies, sauces, salsas, baked goods, mustards and vinegars to complement the fruits and vegetables. Local artisans might sell hand-crafted items such as pottery, wood products, jewelry, glass crafts and sculpture. Many towns and cities have garden clubs or local gardening experts who can share their enthusiasm and expertise about gardening (these people are a particularly wonderful resource to find at a farmers’ market). Activities such as face painting, puppet shows, musical entertainment and craft demonstrations can keep families entertained and contribute to the celebratory feel of the market. Not only does variety make the market more successful today, it helps introduce the next generation of gardening and produce enthusiasts to the concept.

Whose Event Is It?
This is one of the most important decisions to make before starting a market, because it will affect the way the town or city approaches the entire event. A local farmers’ market may be run by the municipality or by an independent association. The correct choice will depend upon the resources and concerns of each municipality.

Most farmers’ markets generally are open one day a week for four to six months of the year, for a total commitment of 16 to 24 event days. Market organizers recruit, screen and manage the individual vendors, and coordinate insurance coverage, publicity, safety, permitting, traffic and all of the other details. While all of these aspects are manageable, they are probably too much for any one person to handle effectively. It is usually best to have a committee or other organized group plan and run the market. Some municipalities are fortunate to have enough staff or dedicated volunteers to serve on a market committee. This can be a simple way to ensure that the market complies with all local ordinances and permitting requirements. However, given the time commitment required, many municipalities may find that a private farmers’ market association is better suited to run the market.

There are several local nonprofit farmers’ market associations around the state whose sole purpose is to organize, facilitate and promote farmers’ markets in their communities. These associations generally are organized as nonprofit charitable organizations. Their membership usually includes farmers and vendors as voting members and may also include other contributing patrons as non-voting members. The associations are run by boards of directors elected by the members. The directors develop rules of market operation and regulate the types of products that may be sold and the required origin of those products. For example, must all products be grown or processed by the vendors themselves? In a certain geographical area? In New Hampshire?

A farmers’ market association will also coordinate with the municipality on the location of the market, arrange for traffic control, and obtain and comply with any local permits that are required. In addition, the association will be responsible for choosing vendors and organizing the logistical details. Vendors are usually required to submit applications to the association with contact information, product lists, proof of insurance and food licenses, and information on how many market days they will participate in.

Permits and Licenses
A farmers’ market may involve a variety of state and local permits, licenses and approvals. Good planning requires an understanding of which approvals are needed, who is responsible for obtaining them, and who is responsible for keeping track of them.

Vendor Approvals. Each vendor should be required to certify to the association or municipality that the vendor has obtained all applicable food handling licenses from the state (and provide current copies of those licenses) and to certify that the vendor will remain in compliance with all food handling regulations. Depending upon local ordinance and regulations, vendors may also be required to obtain a local health license.

The most commonly-required license for a farmers’ market vendor is the state homestead food license, issued and administered by the New Hampshire Department of Health and Human Services (DHHS). As of January 1, 2007, New Hampshire law imposes a two-level licensing requirement on “homestead" kitchens, which are residential, non-commercial kitchens where home-made foods are manufactured and/or processed primarily for retail sales at farmers’ markets, farm stands or residences. RSA 143-A:12, I. Level 1 licenses (Class H food service licenses) are required for homestead kitchens with annual sales of $5,000 or less, and Level 2 licenses (Class D food service licenses) are required for homestead kitchens with annual sales greater than $5,000. Licenses must be renewed annually, so all vendors should be required to produce a current license each year.

It is illegal for a processor or manufacturer to operate a homestead kitchen without this license. Licensees must comply with a variety of food safety precautions under the DHHS administrative rules (He-P 2300), including labeling requirements on every product for sale by public marketing. Vendors with a homestead license generally may produce baked items (bread, rolls, muffins, cookies, brownies, cakes), double-crusted fruit pies, candy and fudge, packaged dry products such as spices and nuts (level 1 licenses only), acid foods such as mustards and vinegars, and jams and jellies.

Homestead licensees may not produce or sell “potentially hazardous food," which includes any food that requires refrigeration to prevent rapid growth of bacteria, salmonella or botulism, including but not limited to raw or heat-treated animal products (except certain eggs), heat-treated plant foods or raw seed sprouts, cut melons, and garlic and oil mixtures that support rapid microorganism growth. If a farmers’ market will include sales of any of these products, the vendors should have the appropriate non-homestead food service license (most likely a Class C food service license for producers of potentially hazardous foods).

Market Approvals. The market operation itself may require local approvals, depending upon the location, local regulations and the entity that is operating it. When a market is on municipal property, the farmers’ market association applies for permission from local government officials to run the market in that location. According to local ordinances and regulations, this approval may involve inspections and conditions imposed by local health officials, approval of the safety of structures and activities by the police, fire, and/or building departments, the requirement of a police or traffic detail, and any other local fees, permits or requirements that apply. The municipality may require a deposit from the association or some other arrangement to fix any damage that might occur to public property.

Even when a market is located on private property, municipal approvals may still be required for certain aspects of the event. Towns and cities may pass ordinances regulating restaurants and food services, vehicles on public streets and noise, any of which may be applicable to an event on private property. See RSA 31:39. Local health officers may adopt local regulations regarding restaurants and food service, nuisances and public health. See RSA 147:1. Traffic control and parking regulations may also apply. See RSA 41:11; RSA 47:17.

Insurance Coverage and Liability
It is very important to be sure that everyone involved has obtained the proper insurance coverage to protect themselves as well as the municipality. All vendors and/or the private association, if there is one, should be insured and required to provide a certificate of general liability coverage in an amount sufficient to cover anticipated liability. If there is a private association running the market, the association should require vendors to show proof of insurance and the municipality should make this a condition of approval of the market. The town or city should also be named as an additional insured. While your local attorney may recommend particular insurance limits, a minimum of $2 million per occurrence and in the aggregate is often a useful guideline.

In addition, municipalities may wish to contact their insurance carriers regarding special events coverage. If the deductible on the municipality’s general liability coverage is very high, or if the municipality wishes to segregate special events exposures from general loss exposures, special events coverage may be worth investigating. It is also important for municipalities to check the exclusions on their insurance policies to avoid unpleasant surprises. This is another reason it is so important to be named as an additional insured by the vendors’ or association’s policies. Even if a private association is running the market, if it is located on municipal property the town or city may still be exposed to liability for injuries or damage arising from the condition of the property. The risk can be reduced by removing or fixing any known hazards on the property, but insurance is also necessary.

Finally, it is advisable to obtain waivers of liability from vendors and associations providing that the municipality will be held harmless, indemnified and defended in the event of damage or loss. While waivers of liability do not always eliminate risk, they help to put vendors and associations on notice about the risks involved with the event. This is particularly important regarding compliance with state and federal regulations for food sales and service. When the market is held on public property, the municipality should also clarify who will be responsible for any property damage at that location. As with insurance coverage, consultation with your local attorney on these issues is advised.

Volunteers
Depending upon the size of the market and the activities that are planned, it may be necessary to recruit volunteers to help organize, set up, run and break down the market. Whether the market is operated directly by a municipality or by a private association, municipal officials should require someone to be placed in charge of volunteers to coordinate recruitment, training, supervision and paperwork. Volunteers should be properly trained and supervised for the tasks they will perform, given any safety equipment they need to perform those tasks, and assigned tasks that are appropriate for their age, strength and abilities. There should also be a plan in place to handle any injuries or issues that may arise with volunteers.

Each volunteer should sign a form (developed with the local attorney) including a description of the specific tasks he or she will undertake and any specific limitations on those tasks (such as not operating town vehicles or entering certain areas), a statement that volunteers may not work without supervision, and an acknowledgement that volunteers will not be compensated in any way for their service other than reimbursement for expenses incurred in the performance of their volunteer service. This is a key point to avoid characterization of a person as an employee or independent contractor instead of a volunteer, because RSA 508:17 provides a certain level of protection from liability for nonprofit or municipal volunteers who are acting in good faith within the scope of their duties. If volunteers are performing tasks for the city or town, the municipality’s liability insurance also may be involved, but workers’ compensation insurance probably will not apply (check with your carrier). The volunteer form should also include a statement that the municipality does not guarantee to defend or indemnify a volunteer in the event that the volunteer is injured during service or if a lawsuit against the volunteer arises out of the volunteer service.

Logistics
Location.
Where will the market be held? Location is important. People are much more likely to visit a farmers’ market if it is in a convenient place like a centrally-located field, park, green or other open space. According to the Cooperative Extension study, a market within five miles of a populated area is likely to be most popular. Is there a plan for rain? Most markets are held rain or shine.

Parking and Traffic. Is there any parking? Is there enough? The size of the market and the community will dictate how much parking is required (a useful estimate is 2 to 2.5 people per car) and may affect the selection of location. Are there handicapped parking spaces? Some communities have local parking regulations, which should also be taken into account. If parking may overflow onto the street, how will this affect traffic control? Have affected neighbors been informed? A police detail and proper signage may be required by the municipality for traffic and parking safety in some locations. RSA 105:9.

Publicity. Advertising is important, particularly if the market is not in a very visible location. The best strategy usually involves a variety of publicity outlets, including announcements in municipal newsletters and newspapers, posting on municipal Web sites and farmers’ market association Web sites (and linking with other locally-popular Web sites), and banners and signs.

Consistency. Farmers’ markets are often open only once or twice a week. Making the trip worthwhile for visitors is important. Consistent hours of operation and consistent vendor participation are both good ways to do this. Many market associations ask vendors to commit to a certain number of market days or to sign up for specific market days, and usually require a list of the products each vendor will offer. This allows the market to advertise the list of participants and helps to provide a larger selection. Vendors also should be required to arrive and set up their space with enough time so that when the market is open, everyone is ready.

Equipment. How will vendors display and sell their products? Will there be stalls, tents and tables, and who will provide them? Are tent wires and stakes marked or protected to prevent injury? Will vendors provide their own certified scales? Will volunteers be available to help with setup and breakdown? Is electricity required, and if so, how will that be provided? The answers to these questions may be different for different markets, but it is a good idea to think about them ahead of time.

Resources
For more information on farmers’ market associations and a list of New Hampshire farmers’ markets and contacts, see the Web site of the New Hampshire Farmers’ Market Association (www.nhfma.org). For information on legal aspects of nonprofit farmers’ market associations, you may wish to contact the Charitable Trust Division of the New Hampshire Attorney General’s Office (www.doj.nh.gov/charitable/index.html). For insurance information, contact your municipal insurance carrier. Planning checklists for special municipal events may be found in the LGC publication Special Events Planning Guidebook; visit the “Publications" section of the LGC Web site (www.nhlgc.org) for more details. Information on state food service licenses is available from the New Hampshire Department of Health and Human Services, Food Protection Section, 603.271.4589. The UNH Cooperative Extension study, Buying Products Directly from Farmers and Valuing Agriculture: Behavior and Attitudes of New Hampshire Food Shoppers, is available online at http://extension.unh.edu/; select “Publications," then “Agriculture" to download the report.

Christine Fillmore is a Staff Attorney with the New Hampshire Local Government Center’s Legal Services and Government Affairs Department.