Laws to Exempt Retail Foods From State Oversight Are on the Rise
Date posted: Thursday, March 4, 2021
Blog poster: Doug Farquhar, JD
NEHA has been able to identify 41 bills in 24 states in the 2021–2022 state legislative session that relate to cottage foods (i.e., bills the relax or eliminate food safety requirements for retail foods).
State legislatures use several terms for these bills: cottage foods, food freedom, microenterprise kitchens, homemade foods, or home-baked foods. They all have the same goal, however, to limit a government's authority to regulate food safety. These bills seek to expand the range of food producers and retail establishments that could sell food free from any governmental oversight.
Six states introduced legislation using the term "food freedom," meaning freedom from state food safety oversight. Arkansas is seeking to enact SB 248 that will create the Food Freedom Act, exempting homemade food or drink products from licensure, certification, and inspection requirements. Minnesota's HB 433 Food Freedom Act exempts homemade food sellers and preempts local food safety ordinances from being applied to homemade food sellers.
Oklahoma's SB 833 Food Freedom Act seeks to exempt homemade foods from state licensure, permitting, inspection, packaging, and labeling requirements. Tennessee's HB 813 and SB 693 seek to recognize the right of individuals to produce, procure, and consume homemade foods of their choice free from unnecessary and anticompetitive regulations. The sponsors claim these bills will foster small businesses, innovation, and economic growth. Wyoming continues to expand its food freedom law. HB 118 will include eggs in the state's food freedom exemptions.
Mississippi's Food Freedom Act HB 588 sought to allow on-farm sales of homemade food products, but this bill failed in early February.
Arkansas HB 1118 will expand the state's cottage food law. This bill provides that cottage food sales through the internet are exempt from the definition of food service establishment. Indiana's HB 1103 and SB 185 Home Based Vendors Act allows for such foods to be sold via the internet and delivered by a third party to the end consumer. Montana's SB 199 permits certain homemade food producers from food licensure, permitting, certification, packaging, labeling, and inspection regulations. It will also allow the sale of raw milk and suspend the state's meat inspection program.
Missouri's HB 357 will allow cottage food production operations to sell food over the internet and SB 235 will permit the sale of raw milk or cream. Maryland's HB 1077 provides an exemption from a food establishment license for operators of open-air food markets.
The Alabama legislature has two bills on cottage foods: SB 160 and HB 12. SB 160 allows a cottage food production operation to sell online, remove gross receipts cap, and require certain nutrition information to be included on product labels. HB 12 exempts baked goods and roasted coffees from any health department food service permits and requires the labeling of baked goods and food items. It also requires a food safety course be taken by the food producers.
Florida is seeking to expand its cottage food law. HB 663 exempts cottage food operations from food and building permitting requirements and authorizes the sale and delivery of cottage foods by mail. It also prohibits local governments from prohibiting or regulating cottage food operations.
Iowa HB 319 allows for homemade foods from a commodity produced, processed, prepared, and sold on a farm be exempt from health department regulations. This law also exempts day care centers, group homes, potluck suppers, roadside stands, and farmers markets from health department food safety regulations.
Mississippi SB 2781 will authorize cottage foods to be advertised on the internet. New Jersey's AB 4580 establishes requirements for the sale of home-baked goods.
New Mexico's Homemade Food Act (HB 177) will exempt non-potentially hazardous homemade food items from regulation pursuant the Food Service Sanitation Act or the state's Food Act. SB 118 enacts the Food Accessibility Act, exempting certain foods from licensure, regulation, and inspection, as well as creates a state meat inspection program.
Oklahoma introduced the Home Food Processing Act (SB 854), allowing the sale of non-time/temperature control for safety at retail establishments and restaurants. The state also seeks to amend the Home Bakery Act to exempt homemade food products from the all licensing requirements by the state Department of Health and the Department of Agriculture, Food, and Forestry (HB 1032).
South Carolina's HB 506 redefines a "home-based food production operation" to include online and mail order sales. Sales of such food by retail stores, including grocery stores, is permitted. The law requires a label to include the following: "Processed and prepared by a home-based food production operation that is not subject to South Carolina's food safety regulations." SB 308 allows a home-based food operation to sell food to an informed consumer upon disclosure.
South Dakota's HB 1121 seeks to govern the sale of homemade food items. The law prohibits local ordinances that impose any licensing requirements or fees on the sale of homemade foods. The sale of produce may be exempt from food safety regulations, but meat is not covered by this law and must follow safety requirements.
Utah's HB 94 requires the Department of Health to create sanitation, equipment, and maintenance guidelines for microenterprise home kitchens. Washington's HB 1258 also relates to the operation, authorization, and permitting of microenterprise home kitchens.
West Virginia SB 357 makes farmers markets and their vendors exempt from food safety requirements. The Farm Fresh Dairy Act (SB 58) allows for the sale and consumption of homemade and farm fresh raw milk and raw milk products. The bill encourages the expansion of raw milk dairy sales by small farm producers and accessibility of their products to informed end consumers.
About the blog poster: Doug Farquhar is the director of Government Affairs at the NEHA in Denver, Colorado.