Defending Cottage Food Operations

The letter below was sent to the Angelina County & Cities Health District on July 7:

On Monday, June 25, a citation was issued to a home baker who had donated goods for a nonprofit fundraiser. While the citation was dropped later that day, in the course of discussions, Mr. Terry Free with your department reportedly made several statements about the cottage foods law that are not accurate, namely:

  1. That baked goods under the cottage foods bill cannot include ingredients such as eggs and milk;
  2. That advertising a cottage foods operation is not allowed; and
  3. That delivery of cottage food items is not allowed.

None of these statements are correct, yet Mr. Free threatened additional enforcement actions. I am therefore writing to seek clarification of Angelina County’s position on the cottage foods provisions of the Texas Health and Safety Code.

I. Ingredients

The cottage foods law covers people who prepare specific items in their home kitchen for sale directly to consumers. Those items include: baked goods, canned jams and jellies, and dried herbs. (See TX Health & Safety Code §437.001(2-b).)

A baked good is defined as follows:

“Baked good” includes cookies, cakes, breads, Danish, donuts, pastries, pies, and other items that are prepared by baking the item in an oven. A baked good does not include a potentially hazardous food item as defined by department rule. (See TX Health & Safety Code §437.011(2-a).)

The clear meaning of this section is that the baked good cannot be a potentially hazardous food item. But Mr. Free has apparently interpreted this section to mean that the baked good cannot have, as an ingredient, any potentially hazardous ingredient, such as eggs or milk. This is a absurd interpretation that has no basis in the statutory language, the implementing regulations, or food safety.

Applying that same reasoning to the canned jams and jellies would mean that absolutely no canned jam or jelly could actually be sold, because they all involve cut fruit that, prior to the canning process, could be classified as potentially hazardous. After processing (whether through canning or baking), many potentially hazardous ingredients can result in a final product that is not potentially hazardous.

The Texas Department of State Health Services has provided guidance as to what is a legal baked good under the law on its website at http://www.dshs.state.tx.us/Layouts/ContentPage.aspx?PageID=35827&id=858… . The list of both allowed and disallowed items focuses entirely on the safety of the final product, not the ingredients, consistent with the statutory language and basic food safety principles.

II. Advertising

Mr. Free also reportedly stated that advertising was not allowed under the law. Yet nothing in the Texas Health and Safety Code even mentions advertising, and there is absolutely no statutory or regulatory basis for such a prohibition. Any attempt to enforce such a limitation would be a restriction on individuals’ rights of free speech under the First Amendment.

III. Delivery

Finally, Mr. Free apparently stated that delivery of cottage foods was not allowed, and specifically indicated that he thought delivery of wedding cakes was illegal. Again, there is no basis for such action by the local health department.

The law states:

(2-b) “Cottage food production operation” means an individual, operating out of the individual’s home, who:

(A) Produces a baked good, a canned jam or jelly, or a dried herb or herb mix for sale at the person’s home;
(B) Has an annual gross income of $50,000 or less from the sale of food described in Paragraph (A); and
(C) Sells the foods produced under paragraph (A) only directly to consumers.
(See TX Health & Safety Code §437.001(2-b).)

Black’s law dictionary defines sale as follows:
Sale, n. 1. The transfer of property or title for a price. 2. The agreement by which such a transfer takes place. • The four elements are (1) parties competent to contract, (2) mutual assent, (3) a thing capable of being transferred, and (4) a price in money paid or promised.

Thus, a sale is complete once the buyer either pays or promises to pay for the baked good, jam, jelly, or herbs. Once the sale is completed at the person’s home, the buyer and seller are free to make whatever arrangements they choose to. Reading a prohibition on delivery into the statute would be contrary to the language of the law.

In addition, a prohibition on delivery would make another portion of the law superfluous, which is inconsistent with accepted canons of statutory construction. The statute specifically prohibits internet sales. (See TX Health & Safety Code §437.0194.) If no delivery were allowed, then such a prohibition would have been unnecessary because internet sales always involve delivery. In other words, if all delivery was prohibited, then internet sales by their very nature would have been prohibited. By prohibiting internet sales but not delivery in general, the bill clearly allows for deliveries once the sale has occurred at the person’s home through means other than the internet.

I am very concerned that Angelina County residents are being cited or threatened with citations for exercising their legal rights under state law. I ask that you clarify Angelina County’s position as soon as possible and commit to enforcing the law in a fair and legal manner.

Sincerely,

Judith McGeary, Esq.
Executive Director