the texas cottage foods law: proposed labeling requirements

thoughtful thursday
notes from maggie's farm

Until September of last year, a private individual in Texas who prepared food to sell to the public was required to do so in  a commercial kitchen, inspected and certified by the health department, purchasing a million dollar insurance policy, and complying with extensive regulations. These types of business have caught a small break by the passage, last year, of Senate Bill 81, also called the Cottage Food Law.

Yesterday, I was honored to share our experience as cottage food producers with host Susan Gayle of Food Love Austin.  We discussed the Texas Cottage Food Law, proposed labeling requirements, farming, food, and more, all around the table in her cozy kitchen. That interview will be airing today, during her hour long show, from 2-3pm, on KOOP 91.7.  Thank you, Susan, for sharing our story, and a lovely pot of tea.

Listen to our discussion, live, here.

The Bill's Origin

SB 81 (the food safety bill that ultimately included cottage foods and farmers market provisions) authored by Senator Jane Nelson and sponsored in the House by Republican representative Lois Kolkhorst,, of Brenham was introduced to support local, independent small-scale, non-commercial producers.  While Harris County and other local health departments succeeded in weakening the bill at the last minute, removing a provision whereby home producers could sell said products through farmers' markets, roadside stands, and community bake sales at the last minute, the bill went on to be signed into law by Governor Rick Perry, and took effect late last year. As passed, the bill still contains important provisions that will help the local foods movement.  These provisions will help home cottage foods producers, while reducing some of the barriers for food vendors at farmers markets.

Guidelines

Under Sections 5 and  6 of SB 81, small-scale producers of low-risk foods are exempt from regulation under the following conditions:

1)  They are selling non-potentially hazardous baked items (such as cake, cookies, brownies, fruit pies, or breads), canned jams or jellies, and dry herbs and herb mixes;
   
2) They sell the food directly to consumers;

3) They make $50,000 or less in gross sales of these foods;

4) They sell directly from their home, where the product was produced; and

5) They label the food with the producer's name and address and a statement that the food is not inspected by the health department.  (at the time of the law going into effect,  guidelines indicated that "The food items sold must be labeled with the name and address of the cottage food production operation, and a statement that the food was not inspected by the health department.) 

Proposed Labeling Requirements 

At the time the bill was signed, The Department of State Health Services (DSHS) was directed to adopt permanent labeling requirements.  Taking up that mandate, DSHS has taken these simple labels, and produced labeling requirement for home bakers, none of which apply to licensed bakeries, food establishments, coffee shops, or doughnut shops.  A summary of those (6 pages of) rules, below.

PROPOSED RULES
All foods prepared by a cottage food production operation must be labeled.
(1) The label information shall include:
(A) the name and physical address of the cottage food production operation;
(B) the common or usual name of the product and an adequately descriptive statement of identity;
(C) if made from two or more ingredients, a list of ingredients in descending order of predominance by net weight,  including a declaration of artificial color or flavor and chemical preservatives, if contained in the food;
(D) an accurate declaration of the net quantity of contents including metric measurements;
(E) allergen labeling in compliance with the Food Allergen Labeling and Consumer Protection Act of 2004, Pub. L. No. 108-282, Title II, 118. Stat. 905; and
(F) the following statement: "Made in home kitchen, food is not inspected by the Department of State Health Services or a local health department" in at least the equivalent of 11-point font and in a color that provides a clear contrast to the background.
(2) Labels must be clearly legible and printed with durable, permanent ink. (laser printer, not inkjet)
(A) Ingredient statements shall be at 1/16 of an inch or larger.
(B) Ingredients shall include components of the ingredients.
(C) Net quantity of contents shall be separated from other text on the label and must be located in the bottom third of the label.

A Level Playing Field?

Among the concerns that bakers, and the sponsors of this bill share, is that a producer will, in effect, be giving his exact recipe for the product being sold.  No commercial establishment is ever required to share proprietary information with the consumer, and home producers wish to be afforded the same consideration.  The remaining rules demand from the home producer more information than is required by any commercial operation, a tedious, cumbersome and costly bureaucratic burden.

The six pages, double-sided, of rules left producers, food policy activists, and the bill sponsors, including Representative Lois Kolkhorst (R-Brenham) who filed the initial bill, up in arms.  They contend that the requirements are 'unnecessarily burdensome' and 'subvert the intent of the law' to ease the path for people using their ovens and home-tested recipes to bring in a critical second income.

It is clear to me that these proposed rules subvert the intent of the legislation we worked so hard to pass. We were pretty clear in trying to make it easier for small business to thrive and some of these rules proposed by the state will do just the opposite. I have spoken with the Department of State Health Services and let them know I take issue with their rules and will keep an eye on the process moving forward. I also encourage all cottage industries to weigh in immediately by sending an email to cheryl.wilson@dshs.state.tx.us. and letting them know how you feel. All comments submitted between now and February 26, 2012 will be considered as public comments for DSHS to consider as they redraft the proposed rules.

-- statement from one of the bill's sponsors, Eddie Rodriguez of Austin

Response by DSHS

After presenting the rules last week to the House Committee on Public Health, which Kolkhorst chairs, the DSHS was asked to go back to council and rewrite the rules. They did not.  The DSHS instead filed the rules in the Texas Register, and now there will be a 30-day comment period before the rules are sent to the Health and Human Services Commissioner.

In  response to the gathering maelstrom of those who feel the DSHS is treating the home baker unfairly, Department of State Health Services spokesman Chris Van Deusen said the draft rules closely resemble those regulating businesses like grocery stores that package and sell baked goods. Van Deusen said the department also reviewed regulations attached to similar laws in Florida, Michigan and Ohio, coincidentally, the states with the strictest regulations on record.

Van Deusen is on record as saying “Our goal is simply to make sure consumers know what they’re getting, what’s in the cake,” Van Deusen asserts. “It’s not to keep people from doing this.” He added that the rules “more likely than not” will be changed in response to the gathering public outcry. And regarding the ink rule-- “I’m not an ink expert, so I’m not sure.”

The 30-day public comment period starts January 27 and ends February 26, 2012.

What You Can Do


We are grateful that Governor Perry has shown his support for the cottage food industry and its producers by signing the Texas Cottage Foods Bill into law.  We support efforts to encourage the Department of State Health Services to hear our concerns, and to honor the intent of the law, by requiring the same fair labeling practices among commercial and cottage producers, alike .

If this is an issue which you feel strongly about, please take a moment to let your concerns be heard during this critical time.  Whether a lengthy letter of concern, or simply a short note that states your disapproval of the proposed labeling requirements, every voice helps.

Comments on the proposed new labeling requirements may be submitted to

Cheryl Wilson,
Food Establishments Group, Policy, Standards and Quality Assurance Unit,
Division of Regulatory Services, Environmental and Consumer Safety Section,
Department of State Health Services, Mail Code 1987,
P. O. Box 149347, Austin, Texas 78714-9347,

By phone to  (512) 834-6770, extension 2053,

or by email to cheryl.wilson@dshs.state.tx.us.

For more information, please visit texascottagefoodlaw.com.

Thank you for your support.


Sources:

• "Texas Cottage Food Law: Summary." Texas Cottage Food Law. Web. 06 Feb. 2012.
• Walsh, Robb. "Don’t Mess with Texas Cottage Food." Texas Eats. Robb Walsh, 08 Feb. 2012. Web. 08 Feb. 2012. .
• "What's Happening in Texas?" Farm and Ranch Freedom Alliance | Farm and Ranch Freedom Alliance. 01 Sept. 2011. Web. 09 Feb. 2012. .
• Daniels, Lauren D. "Feared by Bakers, New Rules for Texas' Cottage Food Law Are One Step Closer to Becoming Law - Dallas Restaurants and Dining - City of Ate." The Dallas Observer Blogs. The Dallas Observer, 30 Jan. 2012. Web. 08 Feb. 2012. .
• Haupt, Melanie. "Shut the Front Door: Proposed Rules Threaten Cottage Food Operators - Food Blog - The Austin Chronicle." On the Range. The Austin Chronicle, 1 Feb. 2012. Web. 06 Feb. 2012. .