Are More Regulations Needed for Cottage Foods as Farmers Markets Grow in Popularity?

As an example of how cottage foods are regulated by a state, the Hawaii Administrative Rules Title 11 Chapter 50 Food Safety Code do not use the term “cottage food” but instead define “home kitchen” and “homemade food products.” The Hawaii Food Safety Code allows only non-TCS foods (where TCS means time/temperature control for safety, formerly called potentially hazardous foods) including certain pre-packaged foods and hand-pounded poi, and only when sold directly to consumers. Closely patterned after Food Code 2017, it prohibits the sale of products it considers high-risk unless a waiver is obtained. There are additional requirements of a food handler training course, the typical food ingredient labeling, and a special labeling for hand-pounded poi. All cottage foods sold in Hawaii must also bear a label with the following consumer advisory: “Made in a home kitchen not routinely inspected by the Department of Health.”

Food safety. For food safety purposes, the Food Code categorizes operations as “low risk” and “high risk,” where the latter refers to the handling of TCS foods including sensitive raw ingredients, cooking, hot and cold holding, and reheating. Annex 3 of the Food Code on “Public Health Reasons/Administrative Guidelines” distinguishes “food establishment” that provides food directly to consumers and for which the Food Code applies, from “food processing plant” that provides food to other business entities. The Food Code further defines food as TCS due to its ability to limit pathogen growth or toxin formation, by evaluating its pH, a_w, pH-a_w interaction, heat treatment, and packaging.

To date, almost half of the states allow cottage foods to comprise only low-risk foods or “non-potentially hazardous foods,” and some states qualify this definition with a list that explicitly includes or excludes certain foods. Almost an equal number of states and the District of Columbia allow the sale only of the cottage foods defined in their provided lists. Some of the lists allow thermally processed acidified foods that, if acidification to pH<4.6 is incomplete, may result in high-risk products. Some states possess tiered cottage food systems to further differentiate cottage foods from other similarly prepared foods, complicating the definition of a low-risk food.

Some states require registration, permit, or license for the premises and others do not. Other states require, in addition, the completion of food safety or food handler course by the operator. Some states require only a food safety training course.

Point of sale. Cottage foods are sold by some states directly to consumers and mostly at farmers markets, while others are limited for sale at specific venues. Other states allow indirect sales of cottage foods, such as in restaurants and at wholesale.

Selling at farmers markets is seen as the end goal for some food producers and as the first step toward a bigger business for others. Thus, there is much discussion on allowable sales at farmers markets. Most states do not cap the maximum sales earned at farmers markets, whereas other states have set maximum sales at $10,000 or less, $10,001-$30,000, and $30,001-$50,000.

Labeling. Most states require basic food labeling. Other states allow only limited labeling requirements (e.g., contact information), while other states do not have any labeling requirements at all.

Food freedom laws. Although cottage food laws in the U.S. are intentionally crafted to be not as stringent as those for food establishments, a few states enacted even broader food freedom laws. Through these laws, the preparation and sale of almost any food and beverage is allowed within the state without licensing or food safety inspection. Wyoming, for example, allows any low- or high-risk food or beverage, including animal products, fish, and rabbit. It does not require licensing, permitting, certification, packaging, or food labeling when sold directly to an “informed end consumer” at a farmers market, or a producer’s ranch, farm, or home, as long as the sold foods are for home consumption only.