February 26, 2012

Cheryl Wilson
Food Establishments Group, PSQA Unit
Environmental & Consumer Safety Section
Department of State Health Services
Via email: Cheryl.wilson@dshs.state.tx.us

Dear Ms. Wilson:

The Farm and Ranch Freedom Alliance (FARFA) submits these comments on the proposed new Section 229.661 of Title 25 of the Texas Administrative Code, regarding cottage food operations. FARFA advocates for farmers, ranchers, and homesteaders through public education and lobbying to assure their independence in the production and marketing of their food, and to prevent the imposition of unnecessary regulatory burdens that are not in the public interest. FARFA also advocates for consumers’ access to information and resources to obtain healthy foods of their choice. FARFA promotes connections between rural and urban communities to support diversified, local agricultural systems.

Provisions related to labeling

While the majority of the proposed rule tracks the legislative language of SB 81, the requirements for labeling of cottage foods in proposed section 229.661(d) are not consistent with the legislative language or intent.

Administrative agencies have only that authority that is granted to them by the Legislature. In response to an inquiry from a reporter with the Austin Chronicle, DSHS Assistant Press Officer Chris Van Deusen stated that the agency based the proposed labeling requirements on Michigan, Florida, and Ohio’s regulations. It is disappointing that the agency would choose to focus on labeling requirements from other states without researching their governing statutes. In Michigan,Florida, and Ohio, the strict labeling requirements were set out in the statutes, and the state agencies were merely implementing the clear statutory language.

In states in which the legislatures adopted less complex labeling requirements for cottage food producers, the state agencies have faithfully implemented the statutory language and intent. For example, in Arkansas, HB 1323 provided:

(2) Each product shall be clearly labeled and shall make no nutritional claims.

(3) The label required under subdivision (2)(B)(vi)(b)(2) of this section shall include the following:

(A) The name and address of the business;
(B) The name of the product;
(C) The ingredients in the product; and
(D) The following statement in 10 point type: “This Product is Home-Produced”;

The regulations adopted by the Arkansas Health Department track the bill language, as noted in their guidelines:

3. What is required on the label?
Each cottage food item shall be clearly labeled and make no
nutritional claims. The label on each food item shall include the name
and address of the manufacturer, the name of the product, the
ingredients in the product, and state in 10-point type, “This Product is
Home-Produced”.

(See http://www.healthy.arkansas.gov/programsServices/environmentalHealth/foodProtection/
Documents/FarmersMarketGuidelines.pdf)

The Arizona legislature adopted a bill with similar labeling requirements in 2011 (HB 2103), and its agency has also followed the statutory language faithfully. (See http://azdhs.gov/phs/oeh/fses/goods/labeling/index.htm.)

Note that, unlike the Texas DSHS, the Arizona Department of Health Services has affirmatively promoted the new cottage foods law, even creating a YouTube video to explain basic food safety precautions and noting the benefits of these homebased businesses for both the sellers and the consumers: “Home Baked and Confectionary Goods Production Guidelines.”

SB 81 in Texas is far more similar to the statutes in Arkansas and Arizona than it is to the statutes in Florida, Michigan, or Ohio. Based on the clear language of SB 81, the purpose of the labeling provision is ensure that consumers know who they are buying from and that the government has not inspected the food.

The Texas Legislature had good reasons for imposing only minimal labeling requirements on cottage foods producers. SB 81 limits the sale of cottage foods to direct producer-to-consumer sales. If the consumer has any concerns about product, whether the weight, ingredients, or potential allergens, the consumer can easily get all of the necessary information directly from the producer who made the product. This is in direct contrast to sales of pre-packaged foods on grocery store shelves, where the consumer’s only possible source of information is the label.

In addition, SB 81 strictly limits cottage food producers to no more than $50,000 in gross sales. Imposing extensive labeling requirements on such micro-businesses is unreasonable and would frustrate the legislative intent to allow individuals to start a home business easily.

FARFA therefore urges the agency to delete sections (d)(1)(C), (1)(D), 1(E), and (d)(2). In addition, the provision on font size and color (d)(1)(F) should be deleted, requiring only that the informational statement be legible. Combined with the direct producer-to-consumer nature of he transaction, the remaining provisions provide the consumer with the ability to make his or her own informed choices.

Provisions relating to farmers markets and produce

FARFA also urges the agency to delete the provisions in the proposed rule that (1) define a farmer’s market as a “food establishment” and (2) define “cut tomatoes” and “cut leafy greens” as “potentially hazardous foods.” 

Section 229.61(5) of the proposed rule provides a long and unnecessary definition of what is and is not a food establishment. The definition of “food establishment” does not need to be placed in the cottage food rules, and doing so is likely to confuse individuals who read the rule. Instead, section 229.61(5) need only state: “A cottage food production operation is not a food establishment under these rules.”

In addition to be unnecessary and confusing, the proposed section 229.61(5) includes a change to the existing definition of “food establishment,” namely adding farmers’ markets to the list of operations that are food establishments. Particularly as the agency has decided to withdraw that novel definition in its other proposed rule, it should also withdraw it here.

Section 229.61(8)(B) defines what is a potentially hazardous food, which is a relevant issue for implementing the cottage foods law. But in subsection (i), the inclusion of cut tomatoes and cut leafy greens as potentially hazardous foods should be deleted. It is both unnecessary and not properly addressed in this rulemaking.

Since SB 81 covers only baked goods, canned jams and jellies, and dried herbs, the issue of cut tomatoes and cut leafy greens is simply irrelevant. Moreover, adding these foods to the list of potentially hazardous foods that require time and temperature controls would have significant repercussions for farmers all over the State.

The preamble to the proposed rule does not even mention these regulatory provisions, nor does the small and micro-business impact analysis address the impacts these provisions would have. These two provisions are thus outside the scope of both SB 81 and the agency’s analysis, and should be removed from the proposed rule on cottage food operations.

Sincerely,
Judith McGeary
Executive Director