In the past, I have voiced cautious optimism for “cottage food” laws. For one thing, most of these laws are so narrowly tailored they negate the economic advantages of in-home processing altogether. Lauren Medoff, friend, food lawyer, now a proud resident of Texas, elucidates that point in this awesome post on her state’s regulatory implementation of its cottage food law. Thesis alert! State regulators are narrowly construing the law with even stricter regulations:
Less than a year ago, a group of home cooks lobbied the Texas State Legislature to pass a law with the goal of removing homemade goods from the black market. Those cooks rejoiced when the State Senate passed SB. No. 81, also known as, the Texas Cottage Food Law. Unfortunately, the law was written too broadly and gave unlimited power to state regulators to write its implementing rules. Now, small businesses are dealing with the ill-effects of poor drafting and can only hope a lighter version of the rules appears before they are finalized indefinitely.
The intent of the Texas Cottage Food Law was to lift burdensome regulations requiring home cooks to go to through overly expensive lengths i.e. obtaining a license, just to sell homemade foods to consumers. Unfortunately, the proposed rules set to implement the law are not only difficult to comply with, but also impose unreasonable regulations that big players in the food industry do not face. Thus, the rules act as sort of an unfair trade-off: we’ll allow you to sell your goods without license or inspection, but we’re going to make it exceptionally hard for you to make a profit.
A few highlights of Texas Administrative Code Rule 229.661 include: a limit of $50,000 on annual gross income, the requirement that sales must not occur over the internet, restricting the potential success of the business, and strict labeling requirements such as a list of ingredients in descending order of predominance by net weight, including a declaration of artificial color or flavor and chemical preservatives, an accurate declaration of the net quantity of contents including metric measurements and allergen labeling that complies with FDA regulations, a statement that the food was not inspected, suggesting a lack of fitness for consumption, and the usage of permanent ink, ruling out many home printers. The regulations are so riddled with technicalities that many home business owners might also incur legal fees just to ensure compliance and avoid harsh fines or future inspection by the governement.
These rules clearly undermine the intent of the Texas legislature and will be hard for home cooks like Michele Rippey, owner of The Sugared Whisk Bakery in Rockwall, Texas, to comply with. In addition, conventional bakeries do not have to comply with the expensive labeling requirements. When asked about her feelings on the proposed rules, Michele said, “I cannot afford to pay rent on a storefront at this time and to have only had the option of starting a bigger business would’ve impacted me enough to not start the business at all. Getting these types of labels made is very expensive. It is just not fair to impose the same regulations on my in-home business as large scale businesses or require a label stating that my goods were not inspected by DSHS, as if it’s not fit for eating. It’s far too often that we see the products that are inspected by the government causing major outbreaks of food-born illness.”
Even a co-sponsor of the bill, Eddie Rodriguez, is speaking out against the harsh rules stating on his website:
“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.”
It is important that you protect your business and be in compliance with the provisions of the Texas Cotttage Food Law. Read and understand Rule 229.661 and contact your local attorney if you still have questions. Also, be aware that being in compliance with this law does not protect your business from consumer lawsuits. Food safety is governed by strict liability and is always a risk in any food sale business.
Although the comment period ended on Feb. 26, it couldn’t hurt to still write a letter voicing your concerns! Interested parties wishing to comment on these proposed rules should write 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, (512) 834-6770, extension 2053, or by email to email@example.com.
(We’d like to thank Michele Rippey for her time and her insight. If you would like to chat with her about her delicious, professionally baked nom-noms, you can reach her by email at Mrippey@vt.edu)