Health Agencies Keeping Cottage Foods Safe

June 03, 2024 | Heather Tomlinson

Rows of homemade jams at the local farmer’s market and a neighbor’s birthday cake on social media have something in common: they are both cottage (or homestead) food products. Cottage foods are home-based, home-made food products prepared outside of a commercial kitchen and sold to the public. Cottage food producers operate on a small scale, often from a home kitchen, selling goods locally.

Although cottage foods provide opportunities to small, locally owned businesses, they also create complexity in selling food products to the public that are not inspected and may not meet basic food safety standards. And while home kitchens are not considered food establishments in the FDA Food Code, states are able to define “food establishments” by amending provisions in their food code adoption process or enacting legislation or regulations. In addition to regulating, state health agencies can play a role in keeping cottage foods safe through education, training, and other mechanisms.

Cottage Food Regulation

Currently, all 50 states and Washington, D.C. allow the sale of cottage food products directly to consumers. Several foodborne illnesses have been linked to products improperly prepared at home, such as botulism outbreaks in home-canned products and E.coli contamination of jerky. Many foodborne illnesses can be prevented by safely preparing, processing, and storing foods, processes often outlined by health regulations. Health agencies use a variety of tools to regulate cottage food production.

• Types of Foods: The types of foods permitted can vary across jurisdictions with some allowing only non-time/temperature controlled for safety (TCS) foods (e.g., baked goods, jams, candies), while others allow a wide range of products including TCS foods and items that require specialized processes (e.g., pickled vegetables). Some jurisdictions may use an exhaustive or illustrative list outlining permitted foods, while others limit specific food production processes but allow all other food items.
• Licensing and Inspection: Cottage food producers must follow a variety of rules in the form of permits, licenses, and registration. Although cottage foods are exempt from many inspection requirements, at least fifteen states require an initial inspection of home kitchens before they can sell items. All states allow the investigation of foodborne illness complaints; some states require annual licensure.
• Food Safety Training: States can require a food safety course to ensure that all cottage food producers understand the basic food safety requirements.
• Sales Caps: Gross sales caps limit the scale of operations allowed without full food safety precautions. After a cottage food operation exceeds their gross sales cap, they would be required to register as a food establishment and permitting rules would take effect.
• Sales Venues: States typically only allow direct-to-consumer sale of cottage foods (e.g., farmers’ markets) but some states permit online sales. Federal food safety regulations, which prohibit cottage foods, apply when food products are sold across state lines. Cottage food sales, whether in-person or online, should remain within the state they were created to avoid violating federal regulations.
• Labeling: All states have a labeling requirement for cottage foods. These labels can vary but typically include the food producer’s name and address, the product name, an ingredients list, allergens, product weight, date of production, and a disclaimer identifying that the product was prepared in a home kitchen that is not inspected.

Recent Cottage Foods Legislation in the States

Legislators often face tension in weighing the balance between maintaining food safety regulations and supporting small cottage food businesses by reducing the entry barriers (e.g., leasing commercial kitchen space).

In recent years, there has been an increase in legislation expanding cottage food parameters ranging from product and preparation inclusions to modifying the gross sales cap. The Arizona House of Representatives passed and the Senate is currently considering HB 2864, which would expand the state’s cottage food item list to include precut and processed freeze-dried fruits and vegetables. Arizona enacted HB 2042, which expands the definition of cottage foods to include foods that require time and temperature control if they're exempt under federal regulations. The Hawaii legislature passed HB 2144 which is now awaiting action from the Governor, which would expand the definition of cottage foods to include pickled products and non-hazardous products that do not contain dried meat or seafood, permit the sale of products in retail stores, and allow for customer delivery via third party vendors or shipping.

Several states have introduced legislation to increase the gross sales cap for those who qualify as a cottage food producer. Mississippi (MS SB 2638) and Washington (WA SB 5107) introduced bills that proposed to increase the annual gross sales cap, but both failed in session.

There has also been legislation surrounding cottage food preemption. Massachusetts is considering S 2761, which would establish a cottage food regulatory framework and prohibit local health agencies from being able to establish their own cottage food regulations.

Microenterprise Home Kitchens

In expanding cottage food production, there has been increased legislation on microenterprise home kitchens. Microenterprises typically allow the production of more types of foods, including fully prepared hot meals, but also require stricter regulations (such as preparing and selling the food on the same day). Minnesota (MN SF 4501) and Hawaii (HI HB 1591) have introduced legislation that would allow microenterprise home kitchens and establish a regulatory framework for licensing and safety standards.

Raw Milk Considerations

Raw milk is an animal milk that has not gone through pasteurization (process of heating milk to a specific temperature for a set period of time) to kill harmful bacteria. Raw milk can carry dangerous bacteria that can cause food poisoning and has recently been shown to test positive for the recent highly pathogenic avian influenza (HPAI) virus. As of March 2024, 30 states allow the interstate sale of raw milk. This session, West Virginia passed legislation (WV HB 4911) and at least six states, Michigan (MI HB 5603), Hawaii (HI HB 1989), Missouri (MO HB 1711), Massachusetts (MA S 43), Louisiana (LA HB 467), and New Jersey (NJ A 1086), considered legislation that would allow unpasteurized, raw milk to be sold to consumers.

How State Health Agencies Can Keep Cottage Foods Safe

Health agencies consider cottage food inclusions based on food production risks. For instance, many agencies will allow baked goods but do not permit pickling due to the botulism risk associated with pickling. Health agencies evaluate food science to educate their legislatures on the considerations of cottage foods and where they would recommend public health regulations.

Health agencies also ensure cottage food guidance is easily accessible and written in plain language, so producers have the needed information to follow regulations. Relevant information may include the permitted products, how to become a cottage food producer, and food safety considerations when preparing home-made foods. For example, the Illinois Department of Health, in collaboration with a diverse collection of stakeholders, created a robust cottage food guide to help producers and regulators understand state requirements and cottage food safety standards.

State policy surrounding cottage foods is constantly evolving. ASTHO will continue monitoring these changes and provide relevant updates.