The local foods provisions of SB 81 go into effect today in Texas. This includes both the new cottage foods law and the provisions for farmers’ markets.
COTTAGE FOOD OPERATIONS
Until now, anyone who prepared any food at all for sale was required to have a commercial kitchen and comply with extensive regulations. 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;
* “Non-potentially hazardous” basically means non-perishable foods that you would not normally keep in the refrigerator. Foods that are perishable, such as cheesecakes, custard fillings, or meringue pies, are not included under this law.
2) They sell the food directly to consumers;
3) They make $50,000 or less in gross sales of these foods;
4) They sell from their home; 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.
* The Department of State Health Services (DSHS) was directed to adopt a rule governing labeling, but has not yet done so. For now, we recommend that you develop a label with your name, address and the statement “This food is not inspected by the state health department or a local health department.” Be ready to change your labels when DSHS comes out with rules, so don’t order permanent supplies.
A cottage food operation cannot sell over the internet, but this does not prevent you from having a website to advertise your business. A cottage food operation also cannot sell food prepared in their home at the farmers market.
We’ve had reports that several county health authorities have told individuals that delivery is not allowed under SB 81. In response to such an email from a staff person at the Williamson County and Cities Health District (WCCHD), FARFA wrote the district a letter challenging this interpretation. The Executive Director of WCCHD has disavowed the earlier email and stated that the district is not taking a position on the interpretation of SB 81 at this time.
If your local health department is making statements that restrict your rights under the new law, please let us know.
FARMER’S MARKET PROVISIONS
Section 7 of SB 81 also includes two provisions to help farmers market vendors:
1) Clarifies that farmers and food vendors at farmers markets can obtain temporary food establishment permits for up to one year, without limiting permits based on the number of days during which the farmers market takes place. This provision recognizes that farmers markets are special events regardless of the number of days that they occur on, while providing the flexibility for local governments to decide the best option for their jurisdiction.
2) Prevents mandatory mechanical refrigeration or electric heating requirements. While the state and local health departments can still adopt rules governing what temperatures foods must be kept at (i.e. to keep cold foods cold and hot foods hot), they cannot dictate the specific method by which the farmer or vendor meets these requirements. The only exception would be when a municipality owns the farmer’s market; in that case, the municipality may specify the method to comply with food temperatures.
These farmers market provisions do not apply in counties with a population of less than 50,000 people, and over which no local health department has jurisdiction.
The new law going into effect today will help Texas home cottage foods producers and reduce some of the barriers for food vendors at farmers markets. We can use this victory to help lay the groundwork for broader changes in the next legislative session. One of our goals for the next session will be to expand the cottage foods provision to cover more foods and to allow for sales at farmers markets.
Thanks again to everyone who took action this session to help our farms and our food!