In the era of smart phones and iPads, technology often moves too fast for state officials. But in this case, they may have been outpaced by folks with bumper stickers bragging, "My other car is a John Deere."
After the Virginia Department of Agriculture and Consumer Services discovered the existence of a number of online "virtual farmers markets" and moved to crack down on the local vendors who sell there, some advocates for local food sources are saying the state needs to get out of the slow lane on the Information Highway.
In February, responding to its discovery that a number of such operations existed in the Richmond area — some have operated for as long as two years — state regulators cited concerns that online markets are not the same as physical farmers markets located in church parking lots or city parks. They could become loopholes for by-mail sales of goods that have not been subject to proper safety regulatory oversight.
Specifically, says Elaine Lidholm, spokeswoman for VDACS, vendors using such online markets do not meet the state's interpretation of a law that exempts local producers who sell directly to local consumers from heavy state inspection or scrutiny.
"Our position is that if home processors are selling product over the Web under the guise of a virtual farmers market, then they are no longer exempt from inspection — i.e., the exemption provided by [law] does not apply," Lidholm says, indicating the opinion of the department's legal staff is that there is no such thing as an online farmers market. Such markets are no different than traditional online retail, they maintain.
Lidholm says there is no plan currently to shut down online farmers markets. Internet vendors are acceptable businesses under the law, but they simply do not fall under the legal exclusions meant to encourage local sales of locally produced goods made by cottage-industry-scale producers like jam and jelly makers and bakers.
"We have made the point that an online shop can sell anywhere in the world," she says. "Our plan is to place the exempt home processors that are selling their products through the virtual farmers markets under inspection as we locate them." The agriculture department would not move aggressively to find these businesses.
To infer that products — which the state already deemed safe enough to legally exclude from inspection — might suddenly become "potentially hazardous" because they were paid for online rather than in person is absurd, says Mark McIntyre, whose Norwood Cottage Bakery participates in three local online markets and has for the past two years.
"There's no mail," says McIntyre. "I bake it, I de-liver it to the location and the person who bought it picks it up the next day. It would appear to me that technology has outpaced the law."
VDACS' interpretation of the law is also unsettling to Gene LeCouteur, a lay minister at St. Stephen's Episcopal Church in the city's West End. Three years ago, LeCouteur helped found the St. Stephen's Farmers Market with help from the market's manager, Erin Wright.
Last November, the two expanded that market to include an online presence.
He says there's almost no difference between a real and a virtual market — other than the ability for shoppers to stay warm and dry during winter months while "continuing to get produce from the people they're used to getting it from."
In fact, by his explanation, an online market that operates year-round rather than at the whim of the changing seasons means a more stable income for small producers who participate in the market and whose "crops" are not fruits and vegetables with set growing times. Jams, bread and meats, he notes, are not seasonal products.
"The way it operates is that we open for business, if you will, on Friday at noon," LeCouteur says, noting the existence of similar online farmers markets all over the country. In St. Stephen's case, the online market stays "open" until the following Monday morning to allow "members of the market to go online, log in and look through a list of items that are available from the various vendors at the market."
"They place their order, pay for it online," LeCouteur says. Afterwards, the producers drop off the orders at St. Stephen's between 10 a.m. and noon on Thursday. Shoppers come to pick up what they bought the same day between 3 and 6 p.m. "From our perspective, we created this to be essentially a mirror image of the market we have in our parking lot in the summer: You're sort of virtually walking the aisles of the farmers market as you scroll the pages online."
He rejects Lidholm's suggestion that such markets might be a subversive effort to avoid regulatory and safety scrutiny of potentially perishable goods that are being sold and then shipped long distances. "That's antithetical to the whole thing," LeCouteur argues. "The minute you're shipping it ... it's not local anymore."
State Sen. Creigh Deeds, D-Bath, is an ardent and vocal supporter of local farmers and the locavore movement — he quotes liberally from books like Michael Pollan's The Omnivore's Dilemma during an interview — and sponsored legislation in 2008 that helped create the current execeptions allowing small home businesses to sell preserves and baked goods without the sort of heavy regulatory scrutiny that was originally envisioned to deal with industrial-sized operations shipping comestibles across state and international borders.
"We are too far removed from food production in this country," says Deeds, stepping heavily on what sounds like a campaign plank. But although he says he's supportive of the concept of the online local markets like Fall Line Farms, Local Roots and St. Stephen's, and what they might do to expand the market season for small producers, he "never really considered the implication of this law on a business like the online farmers market."
He was unprepared to weigh in on how the current law should be interpreted when applied to online sales.
"But I love the idea," Deeds says. "We've got to be encouraging people to take chances, and [we've got to] encourage businesses."
Lidholm says the department's interpretation will be the law for now. But the very fact that there are questions suggests enough gray area in the law to perhaps require advice from a higher power.
"We may have to seek an opinion from the attorney general's office," Lidholm says.
