Proposed regulations would be "overly burdensome," judge declares.

August 1996

Judge Rejects New Rules Against Market Fraud

An administrative law judge has rejected tough new regulations proposed by the state Department of Food and Agriculture to crack down on cheating at farmers markets.

Judge William Hoover ruled in a decision issued in July and publicly released in August that the proposed regulations would be "overly burdensome and restrictive."

The new regulations would have sharply limited the use of second certificates, whereby one farmer sells produce on behalf of another. The new rules also would have limited the use of leases and partnerships that enable people who have never set foot on a farm and have played little or no role in the production of crops to obtain a certified producer certificate and sell produce in farmers markets as if they had grown it themselves.

Supporters of the new regulations, including officials with the state Department of Agriculture, asserted that the tougher rules were needed to protect consumers from market vendors who misrepresent themselves as farmers.

But in his 14-page ruling Hoover paid no attention to concerns about protecting consumers from fraud and focused his attention instead on the burden that the proposed rules would impose on farmers.

Hoover also overlooked the fact that the stated purpose of California’s direct marketing regulations is to "facilitate the sale of agricultural products from producers … directly to consumers" (emphasis added). He chose instead to infer that the purpose of the regulations is to "facilitate the sale of agricultural products," whether directly from producer to consumer or indirectly through middlemen who carry a second certificate or have entered in to a lease or partnership with a farmer.

The department’s Direct Marketing Advisory Committee is holding an emergency meeting on Sept. 8 to see whether the deficiencies identified by Hoover can be quickly corrected. The decision of an administrative judge is not binding, anyway. The final decision about whether to adopt the regulations rests with agriculture secretary Ann Veneman.