Do Mississippi food trucks selling Mississippi-grown beef, poultry, or seafood need a transient vendor license?

Plain-English summary

The City of Senatobia's attorney asked the AG about a mobile food vendor's licensing obligations. Mississippi's Transient Vendor Law (Section 75-85-1 et seq.) requires most short-term in-state vendors to obtain a transient vendor license. But Section 75-85-3 exempts certain product categories. The two questions: (1) does the exemption cover beef, poultry, and seafood sourced from within Mississippi? and (2) what about other items the vendor might sell?

The AG's first answer was yes. Section 75-85-3(1)(i) exempts "[s]ales of agricultural, dairy, poultry, seafood or forest management products...except such products or services sold at retail and not grown or produced within Mississippi." Poultry and seafood are listed by name. Beef is not, but the question was whether it falls under "agricultural products."

The AG looked across Mississippi statutes for guidance. Section 69-1-373 defines "agricultural products" to include "any agricultural commodity or product, whether raw or processed, including any commodity or product derived from livestock that is marketed for human or livestock consumption." Section 79-17-39 includes "the products of...live stock" in agricultural products. Section 69-1-353 includes "meat" in "locally grown or locally raised agricultural products." The cross-statute reading: beef is an agricultural product. So Mississippi-sourced beef qualifies for the exemption.

The second answer was narrower: a vendor can sell other products under the exemption only if those products independently qualify under one of the Section 75-85-3 categories. Prepared foods do NOT qualify, even if made with Mississippi-grown agricultural products. The AG cited the prior Joseph (2005) opinion: "prepared foods are 'not exempt from the requirement of a transient vendor license by Section 75-85-3(i), regardless of whether the final products are prepared with dairy, seafood or agricultural products grown in Mississippi.'"

The AG also flagged that the city's questions about health and tax regulations were outside the AG's opinion scope. The Department of Health, Department of Agriculture, Department of Marine Resources, and Department of Revenue are the right places to ask about those.

What this means for you

For Mississippi food truck and mobile food vendor operators

Under the opinion, the sale of beef, poultry, and seafood sourced from within Mississippi falls within the exemption in § 75-85-3(1)(i), so a transient vendor license is not required for those raw products. But the AG reaffirmed (citing the Joseph opinion) that prepared foods are "not exempt from the requirement of a transient vendor license by Section 75-85-3(i), regardless of whether the final products are prepared with dairy, seafood or agricultural products grown in Mississippi." A vendor may sell other products without a license only if one of the § 75-85-3 exceptions applies.

For city clerks and municipal tax collectors

The opinion quotes the AG's Mullings opinion that "whether the subject business warrants the procurement of a privilege license or a transient vendor license is a determination to be made by the granting authority," and that if the tax collector determines the business is operating for less than six months, the owner should obtain a transient vendor license unless a § 75-85-3 exemption applies. The § 75-85-3(1)(i) exemption covers "agricultural, dairy, poultry, seafood or forest management products . . . nursery products, foliage plants or ornamental trees, except such products . . . sold at retail and not grown or produced within Mississippi," but the AG read prepared foods as outside it.

For city attorneys advising on vendor regulation

The opinion decides only two things: that in-state beef, poultry, and seafood fall within the § 75-85-3(1)(i) exemption, and that a transient vendor may sell other products without a license only if a § 75-85-3 exception applies. It does not address what additional local regulation a city may impose. It notes the tax-collector/granting-authority makes the license determination (Mullings).

For Mississippi farmers and producers selling direct

The exemption in § 75-85-3(1)(i) reaches "agricultural, dairy, poultry, seafood or forest management products . . . grown or produced within Mississippi." The AG concluded "agricultural products" includes beef, drawing on definitions in § 69-1-373, § 79-17-39, and § 69-1-353 that include products derived from livestock and meat.

For health, tax, and other regulators

The AG noted that several of the city's questions were outside the scope of an official opinion. Citing § 7-5-25, it said questions about health or tax regulations "should be addressed by the appropriate agency, such as the Department of Health, the Department of Agriculture, the Department of Marine Resources, or the Department of Revenue." A transient-vendor-license exemption does not resolve those separate regulatory questions.

Common questions

Q: Why are poultry and seafood listed by name but beef is not?
A: That is just how the statute was drafted. The AG concluded that the broader phrase "agricultural products" in Section 75-85-3(1)(i) covers beef, drawing on definitions in other Mississippi statutes (Section 69-1-373 and others) that explicitly include livestock and meat as agricultural products.

Q: Did the opinion address meats other than beef?
A: The opinion's first question was specifically about beef, poultry, and seafood sourced in Mississippi, and it concluded "agricultural products" in § 75-85-3(1)(i) encompasses beef. Its reasoning rested on definitions covering products "derived from livestock" (§ 69-1-373) and "meat" (§ 69-1-353), but it did not separately analyze other specific meats.

Q: My food truck sells smoked Mississippi brisket. Am I exempt?
A: Under the opinion, no. The AG reaffirmed Joseph that prepared foods are not exempt under § 75-85-3(i) "regardless of whether the final products are prepared with dairy, seafood or agricultural products grown in Mississippi." A smoked, ready-to-eat product is a prepared food.

Q: I sell whole, raw Mississippi poultry. Am I exempt?
A: Yes. Poultry is named directly in the § 75-85-3(1)(i) exemption, and the opinion confirmed poultry sourced within Mississippi falls within the exception.

Q: What about partially processed products?
A: The opinion did not draw a line for partially processed items. It held that raw beef, poultry, and seafood sourced in Mississippi are within the exemption and that prepared foods are not, and (citing Mullings) that whether a particular business needs a license is for the granting authority/tax collector to determine.

Q: What if my food truck buys Mississippi-grown ingredients but does the cooking on the truck?
A: Under the opinion, that is a prepared food, and the exemption does not apply. The AG quoted Joseph that the prepared-foods exclusion applies "regardless of whether the final products are prepared with dairy, seafood or agricultural products grown in Mississippi."

Q: Does this exemption mean I do not need any other approvals?
A: No. The AG said questions about health or tax regulations are outside the opinion's scope and "should be addressed by the appropriate agency, such as the Department of Health, the Department of Agriculture, the Department of Marine Resources, or the Department of Revenue." The transient vendor license is a separate state-level requirement.

Q: How does the six-month point work?
A: The opinion quotes Mullings: "If the municipal tax collector determines that the subject business is conducting business for less than six months, the business owner should obtain a transient vendor license, provided that the business does not qualify for one of the exemptions enumerated in Mississippi Code Annotated Section 75-85-3." The opinion also notes the choice between a privilege license and a transient vendor license is for the granting authority.

Background and statutory framework

Section 75-85-5 sets the general rule the opinion quotes: "A transient vendor may not transact business in any county or municipality in this state unless the vendor . . . has secured a license in accordance with this chapter." Section 75-85-3(1) provides "several exceptions," including the one quoted in the opinion: "[s]ales of agricultural, dairy, poultry, seafood or forest management products or services related to forest management or silvicultural activities, nursery products, foliage plants or ornamental trees, except such products or services sold at retail and not grown or produced within Mississippi" (§ 75-85-3(1)(i)).

The Transient Vendor Law does not define "agricultural product," so the AG looked to other Code provisions: § 69-1-373 defines "agricultural products" to include "any agricultural commodity or product, whether raw or processed, including any commodity or product derived from livestock," § 79-17-39 includes "the products of . . . live stock," and § 69-1-353 includes "meat" within "locally grown or locally raised agricultural products." On that basis the AG concluded the term encompasses beef for purposes of the § 75-85-3(1)(i) exemption.

For prepared foods, the AG relied on its prior Joseph opinion (2005), which read the exemption not to cover prepared foods even when made with Mississippi-grown dairy, seafood, or agricultural products. The 2021 opinion reaffirmed that reading.

Finally, the AG noted that under § 7-5-25 it issues opinions on prospective questions of state law and does not interpret agency regulations, so health, tax, agriculture, and marine-resources questions belong with the respective agencies.

Citations and references

Statutes:

• Miss. Code Ann. § 7-5-25, AG opinions limited to state law within scope
• Miss. Code Ann. § 75-85-3, Transient Vendor Law exemptions
• Miss. Code Ann. § 75-85-3(1)(i), agricultural products exemption
• Miss. Code Ann. § 75-85-5, transient vendor license requirement
• Miss. Code Ann. § 69-1-373, definition of "agricultural products"
• Miss. Code Ann. § 79-17-39, defining "agricultural products" to include livestock products
• Miss. Code Ann. § 69-1-353, defining "locally grown or locally raised agricultural products" to include meat

Prior AG opinions:

• MS AG Op., Mullings (Apr. 22, 2011), determination of transient vendor status by tax collector
• MS AG Op., Joseph (Apr. 26, 2005), prepared foods not exempt under Section 75-85-3(i)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2021/07/G.Miller_July-23-2021-Mobile-Food-Vendors.pdf

Original opinion text

July 23, 2021

Ginger M. Miller, Esq.
Attorney for City of Senatobia
Post Office Box 50
Senatobia, Mississippi 38668

Re: Mobile Food Vendors

Dear Ms. Miller:

The Office of the Attorney General has received your request for an official opinion.

Issues Presented

1. Does the sale of beef, poultry, and seafood products sourced from within the State of Mississippi fall within the exception contemplated in Miss. Code Ann. Section 75-85-3?
2. Is the vendor allowed to sell any other products and can the city oversee those sales?

Response

1. Yes, the sale of beef, poultry, and seafood products sourced from within the State of Mississippi fall within the exception contemplated in Section 75-85-3.
2. A transient vendor may only sell products without obtaining a transient vendor license if one of the exceptions in Section 75-85-3 applies.

Applicable Law and Discussion

As an initial matter, we note that you asked several questions which are outside the scope of an official opinion. Pursuant to Mississippi Code Annotated Section 7-5-25, opinions of this office are issued on prospective questions of State law. We do not interpret regulations promulgated by state or federal agencies. Thus, any questions that you may have regarding health or tax regulations should be addressed by the appropriate agency, such as the Department of Health, the Department of Agriculture, the Department of Marine Resources, or the Department of Revenue. Further, this office does not opine on questions that are overly broad, make factual determinations or opine on questions of liability. Accordingly, this opinion is limited to the questions listed above.

According to Section 75-85-5: "A transient vendor may not transact business in any county or municipality in this state unless the vendor, and the owner of the merchandise or provider of the services to be offered if the merchandise is not owned or the services are not provided by the vendor, has secured a license in accordance with this chapter and otherwise complied with this chapter." On this topic, our office has previously opined:

Whether the subject business warrants the procurement of a privilege license or a transient vendor license is a determination to be made by the granting authority. If the municipal tax collector determines that the subject business is conducting business for less than six months, the business owner should obtain a transient vendor license, provided that the business does not qualify for one of the exemptions enumerated in Mississippi Code Annotated Section 75-85-3.

MS AG Op., Mullings at *1 (Apr. 22, 2011). Section 75-85-3(1) provides several exceptions to the Transient Vendor Law including "[s]ales of agricultural, dairy, poultry, seafood or forest management products or services related to forest management or silvicultural activities, nursery products, foliage plants or ornamental trees, except such products or services sold at retail and not grown or produced within Mississippi." Miss. Code Ann. Section 75-85-3(1)(i).

Given that poultry and seafood are specifically listed as exemptions to the Transient Vendor Law, we understand your first question to ultimately be whether beef would be considered an "agricultural product" under the exemption provided in Section 75-85-3(1)(i). The term "agricultural product" is not defined in the Transient Vendor Law. However, as you state in your request, Section 69-1-373 defines "agricultural products" to include "any agricultural commodity or product, whether raw or processed, including any commodity or product derived from livestock that is marketed for human or livestock consumption or products that are used for agricultural purposes such as fertilizers and soil and plant amendments." The term "agricultural products" is also defined to include beef elsewhere in the Mississippi Code. See, e.g., Miss. Code Ann. §§ 79-17-39 (defining "agricultural products" to include "the products of . . . live stock"), 69-1-353 (including "meat" within the definition of "locally grown or locally raised agricultural products").

Based on the aforementioned definitions of "agricultural products," this office is of the opinion that the term encompasses beef for purposes of the exemption to the Transient Vendor Law provided at Section 75-85-3(1)(i).

With respect to your second question, a transient vendor may only sell products without obtaining a transient vendor license if one of the exceptions in Section 75-85-3 applies. We note that, consistent with our previous opinions, it remains the opinion of this office that prepared foods are "not exempt from the requirement of a transient vendor license by Section 75-85-3(i), regardless of whether the final products are prepared with dairy, seafood or agricultural products grown in Mississippi." MS AG Op., Joseph, (Apr. 26, 2005).

If this office may be of any further assistance to you, please do not hesitate to contact us.

Sincerely,

LYNN FITCH, ATTORNEY GENERAL

By: /s/ Beebe Garrard
Beebe Garrard
Special Assistant Attorney General