With Cottage Food on Their Plate, States Serve Up Legislative Changes

November 25, 2019|9:39 a.m.| ASTHO Staff

Local and small-scale food production has grown in popularity in the United States over the past several years. As of August 2019, there were 8,771 farmers markets listed in USDA’s National Farmers Market Directory, a six percent increase since 2014. With the 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 low risk for microbial contamination, which could still cause foodborne illness, 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 can prevent, reduce, and mitigate outbreaks of foodborne illness.

As of June 2018, 49 states and Washington, D.C. have some form of cottage food law or regulation. New Jersey is the only state without such a law. While these laws vary among states, they generally address issues around the types of foods that can be produced and sold (e.g., only specified foods, case-by-case determination), who can sell and deliver the food (e.g., farmers only, anyone), sales limits (e.g., by dollar or unit sales amounts, unlimited), where the food products can be sold (e.g., direct or indirect to consumer, online, retail stores, unrestricted), labeling requirements, and regulatory oversight (e.g., licensing, permitting, and inspection requirements). Below is an overview of new state laws that address the production, sale, and regulation of cottage foods.

In Maryland, a new law (HB 527 and SB 290) allows cottage food producers to sell their food items at retail food stores if the food item’s label includes the phone number and e-mail address of the food’s producer and the date the food product was made, as well as the regular cottage food labeling requirements (e.g., business address, ingredients, allergens, etc.). Before the cottage food products can be sold in a retail food store, the producer must also provide the state health agency with evidence that the producer completed a food safety course and a copy of the label to be used on the food item. Also, the state health agency is directed to provide annual legislative reports on the compliance with the requirements and any complaints the agency has received related to cottage food items or businesses.

With SB 572, Texas added new types of food under cottage food law, acidified canned goods, fermented vegetables, and frozen raw and uncut fruit and vegetables. Before selling pickled, fermented, or canned products cottage food operators must properly label these foods and use approved recipes or test the finished food for proper pH levels. Also, the sale of cottage foods is now allowed through the internet or by mail order if the cottage food operator personally delivers the food to the customer and labels the food as required by law. Another new measure in Texas, HB 1694, limits cottage food producers to only providing samples of food they produce.

In Connecticut, SB 233 clarifies that maple syrup and honey are not cottage food products and that the licensing and oversight of the preparation, packaging, labeling and sale of maple syrup and honey regulation of is with the state agricultural agency. Arkansas’ governor signed SB 590 to allow cottage food producers to sell their products at temporary pop-up shops within unaffiliated established businesses and authorizes the state health agency to inspect the pop-up shops.

West Virginia broadened its cottage food laws this year. With SB 285 the state will allow the production and sale of homemade food items that are not potentially hazardous (i.e., the food does not require time or temperature safety controls) and exempts the food producer from licensing, permitting, inspection, packaging, and labeling requirements as long as the producer follows the conditions set out by law. These conditions include providing the consumer with the food item’s name, the ingredients of the food item, as well as the name, address, and phone number of the producer. The law also allows the food items to be sold and delivered not only by the producer but also by the producer’s agent or other third parties. Meat and poultry food items are prohibited under the law and local jurisdictions are preempted from prohibiting or regulating the production and sale of homemade food items.

Finally, in California, a new law (AB 377) clarifies that milk or milk products (e.g., cheese, ice cream, yogurt, sour cream, butter, etc.) are prohibited. Cottage food producers, also known as microenterprise home kitchens, are also allowed to sell food prepared during a food demonstration event but only to consumers who were present during the demonstration. Finally, these producers are prohibited from using the word “catering” in any advertisement or description of their operations.

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. ASTHO will continue to track state legislative activity addressing the unique issues associated with cottage food production, sale, and regulation.