Rita Martinez was surprised. Her pandemic-pivot business, The Salty Cubana, had taken off. After selling croquetas, breads and other Cuban bites at pop-ups and farmers markets, she was asked to make fried-to-order empanadas at a seven-hour event for the Nashville Predators early in 2022.
Martinez precooked the meat-filled pastries (with Porter Road beef stuffed in vegan dough) in a permitted commercial commissary kitchen. Transporting the precooked, frozen empanadas allowed her to fry on site as needed, making them crunchy on the outside, gooey on the inside. And if she didn’t sell out, the still-frozen empanadas would hold until another day. She felt the system allowed her to reduce food waste while ensuring proper food temperatures and food safety measures.
But Martinez learned that the same processes she had used for the Preds event didn’t meet health code requirements at weekly farmers markets. That’s because Tennessee’s health code does not define them in the same category — one is considered a one-time, short-term event (less than two weeks) while the other is ongoing and therefore “consecutive.” The Salty Cubana was one of a number of small businesses whose owners were surprised that they were not in compliance with state health codes when serving ready-to-eat food at farmers markets.
Vendors and market managers at neighborhood farmers markets (including East Nashville, Richland Park, Wedgewood Houston, Donelson and Amqui Station in Madison) report they’ve had more interaction with Metro Public Health Department inspectors in 2022 than they have in previous years. Inspectors have issued verbal and written warnings, letting vendors know they must get in compliance or risk being shut down until they do so.
Hugh Atkins, bureau director for environmental health at the Metro Nashville Public Health Department, explains that the department does not issue citations — i.e., there are no fines associated with warnings. Instead, the department aims to work with chefs in advance, reviewing plans for serving food and helping them develop an approach for adjusting after a violation.
City inspectors at the markets have been focusing on food preparation as defined by state code, which prohibits sampling and on-site food prep without a food truck or mobile pushcart. In practice, that means a farmer cannot slice a watermelon and let folks taste it to decide whether they want to buy. And any preprepared food — whether baked at home or in a commercial kitchen — needs to be prepackaged. Instead of using a portable bakery case to display bagels, then using a pair of tongs to put the number of bagels a customer requests in a bag, such goods must be individually prewrapped. Vendors tell the Scene they understand that health inspectors are required to follow state code and don’t feel that they are being specifically targeted. But, they say, the recent enforcement of these regulations is a challenge. Many of the businesses that are suffering happen to be owned by women and people of color.
In response, many businesses have pivoted. Kisser, the Japanese-food fan favorite, is in the process of opening a brick-and-mortar restaurant in East Nashville. When they were told they couldn’t grill precooked food at the markets, they shifted to prepackaged rice balls. Co-owner Leina Horii says the new rice-ball recipe has worked out, as the new methods are resulting in a dish that stays fresh longer and have helped replace the 30 to 40 percent of income that was being generated at the grill.
“We have been very lucky,” says Horii. “But it seems slightly arbitrary, because the inspectors — who are very nice — are citing us for things that the others did not get cited for. And it is traumatic to see your vendor friends breaking down in tears when they are told they have to shut down.”
Other vendors left the markets entirely. Ana Aguilar, a former server at Husk, started Tantisimo during the pandemic. She describes it as a “Spanglish shop” that sells both savory and sweet dishes. After she received a warning about not being in compliance with health codes, Aguilar thought she could adjust to meet the regulations. She considered purchasing a mobile sink or a food truck, but those options were prohibitively expensive — plus, she says, it was unclear to her whether the portable sink alone would be sufficient.
“It is very confusing,” Aguilar says. “I am already paying huge amounts to a commissary kitchen. I am not cooking raw foods at the markets. I am wearing gloves, and I have worked in a million restaurants without gloves. It does not make a whole lot of sense. There should be a simple solve.”
Until July, markets accounted for nearly 100 percent of Tantisimo’s revenue. Because she can do special events without the hurdles of the farmers markets, she’s focusing on those and pop-ups at venues with their own sanitation equipment.
The Salty Cubana’s Martinez estimates that individually wrapping empanadas adds three to four hours of work to her day, in part because she needs to let them cool before packaging — if she didn’t, they would get steamed inside the package and become more like a dumpling. Other vendors note that the expense of individual packaging cuts into slim profit margins and also is in conflict with the city’s stated zero-waste goals.
“People like to bring their own bags and don’t want everything in an individual clamshell when they come to a farmers market,” explains Rebecah Boynton, who has managed several markets, including East Nashville and Richland Park. These markets, which in Tennessee were considered essential businesses during the pandemic, contribute substantially to the economy. The Richland Park Farmers’ Market alone grossed more than $2.3 million in 2021. But Boynton says sales are down about 24 percent this year since the health department enforcement limited options for available ready-to-eat foods.
No representatives from the city or the state health departments cited increased incidents of foodborne illnesses in 2022.
Atkins says regulations are based on mitigating risk. While slicing a watermelon is less of a health risk than cutting raw chicken, there still needs to be equipment for sanitizing the knife and serving dishes and for handwashing — and those tools may not be available in a farmer’s pop-up tent without a sink. The difference between special events and farmers markets, he says — in addition to the state definitions — is that special events have a health inspector on site at the beginning of each event. “We can’t have staff at each farmers market every week,” he says. Atkins knows the regulations are confusing, as some food regulations are overseen by the state Department of Agriculture (i.e., growing that watermelon) and others by the health department (i.e., slicing and serving the same melon). Changes in what foods can be cooked at home and sold commercially, through the Tennessee Food Freedom Act passed in July 2022, granted more opportunity, but also additional confusion.
Prolific Nashville chef Sean Brock, whose Joyland restaurant had a tent at the East Nashville market, considered buying a $1,500 handwashing station so he could continue to serve market customers. Brock derives joy from cooking and interacting with customers in a market environment and frequently shops there with his family. Because he is a successful celebrity chef who owns multiple restaurants, he could make the investment. But before he wrote the check, he learned that the sink still might not put his market tent into compliance, and instead he’d need a food truck. That’s a bigger investment he ultimately decided not to make.
“This is make-or-break for tiny businesses that sprouted up in the pandemic,” Brock says. “A lot of those people who were seeing success at farmers markets quit their [other] jobs and then had the rug pulled out from under them.”
Dane Carder has experienced similar confusion. Sampling is an essential part of selling his family recipe Jim’s Spaghetti Sauce. A minimum of 75 percent of people who taste it, he says, buy it. Other vendors report similar numbers, particularly those who are using traditional recipes and are serving foods that are unfamiliar to many potential customers. Carder cooks his sauce in the Citizen Incubator Kitchens in East Nashville. At one market, an inspector told him he could not sample at all. Another told him he could, as long as he had a copy of his commissary kitchen paperwork with him at the market.
Obviously, no one — not chefs, farmers market managers, customers or inspectors — wants customers to contract foodborne illness. But many vendors say the rules don’t take actual food safety into consideration, and the inconsistencies in the state laws defy logic.
“A market is no different from a food festival,” Brock says. “I’ve done a million of them over the past 15 years.”
Laura Wilson, owner of the Citizen Incubator Kitchens that many market vendors use, says one of her missions is to share the policies and procedures of the health and ag departments with members.
“Helping our members prepare wholesome and unadulterated food for the Nashville marketplace is one of our highest priorities, and we have great relationships with the departments of health and agriculture that allow us to share information,” Wilson says. “I believe it is possible to both satisfy the real concerns of the health department for food safety and to allow some of the same on-site food preparation that is allowed for festivals and special events.”
A coalition of farmers, market managers, chefs, commissary kitchen operators and others are looking at how to make that happen. The group, called the Tennessee Food and Farming Alliance, wants Tennessee health codes to better reflect food safety norms for farmers markets in a way that mitigates risks and allows small businesses to thrive. A vendor survey produced a picture of concerns and hopes around markets — although some vendors declined to complete the survey because they were concerned about repercussions for their businesses. The organization has launched a website, social media accounts and a statewide petition members hope the public will sign on to.
While some markets are year-round, the bulk of sales for many are in warm-weather months. The idea is to use the slower season to work with legislators, regulators and others to figure out options for safe, healthy and thriving markets. That may include some kind of health code variance or memorandum of understanding until state law can be changed.
Some vendors are finding inspiration from ways other states permit ready-to-eat foods in markets. Possible changes could include reclassifying what a farmers market is, creating a system where a market could purchase equipment that could be shared by multiple vendors, or using a tiered system, so that regulations are tied to levels of risk (different requirements for precooked food versus grilling a raw burger, for instance).
“It feels like the markets are being held back,” Martinez says. “The local government will bend over backwards for tourists. Why not help people who live here and raise families here and are the lifeblood of the community?”