As Cottage Food Production Increases, States Balance Economic Benefits and Food Safety

November 19, 2018|10:14 a.m.| ASTHO Staff

Over the past few years, local and small-scale food production has increased in the United States. As of August 2018, there were 8,720 farmers markets listed in USDA’s National Farmers Market Directory, a seven percent increase since 2013. With the recent growth in demand for local foods and the increased availability of venues to purchase these foods, individuals are producing and selling more food and beverages made in home kitchens, commonly referred to as cottage foods. Cottage foods are typically those considered safe from bacterial contamination and do not require time or temperature safety measures for their production or storage. This can include baked goods, candies, condiments, preserves, and dry mixes. Meanwhile, state and local health agencies are often responsible for enforcing food safety laws and regulating food production. By licensing and monitoring food production, health agencies are in a position to prevent, reduce, and mitigate outbreaks of foodborne illness.

As of June 2018, 49 states and Washington, D.C. have a cottage food law or regulation. New Jersey is the only state without such a law. While cottage food laws vary among states, these laws generally address the following issues: (1) defining the types of foods permitted to be sold (e.g., only specified foods, case-by-case determination), (2) who can sell (e.g., farmers only, anyone), (3) limits on sales (e.g., by dollar or unit sales amounts, unlimited), (4) point of sales limits (e.g., direct or indirect to consumer, online, unrestricted), (5) labeling requirements (e.g., required or not), and (6) licensing, permitting, and inspection requirements (e.g., permit and licensure, registration, inspection). Below is an overview of recent state legislative activity addressing the production, sale, and regulation of cottage foods.

Production and Sale

In 2018, the governor of Arizona signed a bill exempting cottage food products from the rules developed by the department of health services which prescribe reasonably necessary measures governing the production, processing, labeling, storing, handling, serving, and transportation of food or drink products. The bill also defines cottage food products and sets out packaging, labeling, training, and registration requirements. In 2017, Hawaii introduced a cottage food bill to allow home-based food production businesses to sell non-potentially hazardous food items directly to consumers if the cottage food operator is registered with the department of health, sells the cottage food products directly to consumers, takes all reasonable steps to protect the cottage food products intended for sale from contamination, maintains a clean and sanitary facility, meets labeling requirements, and complies with the department of health’s rules.

Permissible Foods

In 2017, the governor of Illinois approved a bill amending the Food Handling Regulation Enforcement Act to permit a cottage food operation to produce homemade food and drinks provided it is properly licensed, certified, and compliant with requirements to sell food items specifically listed in the bill with certain exceptions. In 2018, the governor approved a bill amending the act to further specify and define food and drinks that cottage food operations may produce. In 2018, Alabama proposed legislation extending protections granted to in-home cottage food production to include producers of roasted coffee.

Point of Sale Restrictions

In 2018, the governor of Maryland approved a bill altering the definition of "cottage food product" to include certain food sold in the state directly to a consumer from a residence, by personal delivery, or by mail delivery. Missouri introduced a bill that would allow cottage food production operations to sell food over the internet if both the cottage food production operation and the purchase are located in Missouri.

Permits and Licensing

In 2018, the governor of West Virginia approved legislation requiring rules to set forth quantity limitations for cottage foods, expanding farmers market vendor permits to allow the sale of cottage foods, and clarifying scope, labeling, and sources of cottage foods. The governor of Maryland signed a bill establishing a Workgroup on the Licensing of Food Service Facilities and tasking the workgroup with making recommendations on whether special circumstances, including circumstances in which food is prepared in a kitchen in a private home for certain purposes many warrant an exemption from the requirement to obtain a food service license.

Allowing the production and sale of cottage food is often viewed as a way to promote economic growth for local businesses and communities. States are balancing this economic opportunity with the need to ensure food safety and protect the public’s health by granting health agencies the authority to regulate cottage food. ASTHO will continue to track state legislative activity addressing the unique issues associated with cottage food production, sale, and regulation.

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