With spring in full swing and summer just around the corner, many producers may be considering selling produce, meats, cottage foods and baked goods directly to consumers at the farm property. A question we often hear from farmers thinking about these types of farm food sales is, “do I need some type of license or inspection to sell food from the farm?” The answer to this question depends upon the type of food offered for sale:
- Sales of foods such as fresh produce or cottage foods do not require a license.
- Sales of certain types of baked goods require a home bakery license.
- Sales of multiple types of foods or higher risk foods require a farm market registration or a retail food establishment (RFE) license.
- The home bakery license, farm market registration, and RFE license involve inspections of the production or sales area.
It is important for a producer to carefully assess the food sales situation and comply with the appropriate licensing or registration requirements. To do so, a producer should identify the type and number of food products he or she will sell and whether the food poses low or high food safety risk.
Our new Law Bulletin, Selling Foods at the Farm: When Do You Need a License? will help producers assess their situations and determine their needs for appropriate licensing, registration, or inspections. Read the bulletin on http://farmoffice.osu.edu, here.
Written by: Ellen Essman and Chris Hogan, Law Fellows, OSU Agricultural & Resource Law Program
Ohio’s 131st General Assembly came to a close in December of 2016. In Ohio, a legislative session (also known as a General Assembly) lasts for two years. A bill fails to become law if that bill was introduced during a legislative session but did not pass by the end of the session. Below is a summary of bills related to agriculture that failed to pass during Ohio’s 2015-2016 legislative session. Time will tell whether our legislators will revive and reintroduce any of these proposals in the new 2017-2018 legislative session.
Application of Fertilizer and Manure and Senate Bill 16
Nutrient management remained a topic of discussion in Ohio throughout 2015 and 2016. Most notably, in July of 2015, SB 1 passed and became law. SB 1 placed restrictions on the application of nutrients in the Lake Erie Basin. For example, SB 1 placed restrictions on the application of manure under certain weather conditions.
The 131st assembly considered a similar bill, Senate Bill 16, in February of 2015. SB 16 sought to regulate many of the issues that SB 1 now regulates. SB 16 failed to pass and did not become law. Notwithstanding SB 16’s failure to pass, nutrient management was a popular topic for the 131st General Assembly.
House Bill 101 and the Response to Algal Blooms
House Bill 101 was introduced on March 4, 2015. The bill would have enacted a number of sections into the Ohio Revised Code that would have addressed algal blooms in Ohio waterways. First of all, under the language of HB 101, owners or operators of public water systems in areas at risk for harmful algal blooms, together with the directors of the Ohio EPA and ODNR, would have had the ability to develop emergency plans to combat the algal blooms. Secondly, the Directors of the Ohio EPA and the Department of Natural Resources were tasked with developing and circulating an early warning system for harmful algal blooms. Thirdly, the Ohio EPA would have had the responsibility to provide training to publicly owned treatment works and public water systems relating to monitoring and testing for “harmful algae and cyanotoxins in the water.” Finally, under HB 101, the Director of the Ohio Department of Natural resources would have had to study and report on the economic and environmental impacts of Canada geese and zebra mussels on Lake Erie.
The bill was referred to the House Committee on Agriculture and Rural Development on March 4, 2015 and was never acted upon.
Agricultural Operation and Management Plans and Senate Bill 224
Currently, operation and management plans are a voluntary measure for Ohio farmers. In Ohio, an owner or operator of agricultural land or an animal feeding operation may implement a plan which incorporates pollution abatement practices and best management practices for the operation. But, the 131st General Assembly considered a bill which would make such plans mandatory for operators who operate farms of 50 acres or more.
The proposed bill, otherwise known as Senate Bill 224, would have required operation and management plans to include certain standards for applying fertilizer or manure. The bill also gave the Ohio Director of Agriculture authority to enforce corrective actions against farm operations and to assess civil penalties for non-compliance. However, SB 224 did not pass in the Senate and was not signed into law.
Series LLCs and House Bill 581
Ohio permits the formation of Limited Liability Companies, otherwise known as LLCs. LLCs offer many attractive benefits for a farming operation. Namely, LLCs provide liability protection to the members or owners of that LLC.
Some LLC farming operations have become more complex in recent years. As a result, some farming operations choose to have multiple LLCs across an entire farming operation. For example, a farm operation may have one LLC which owns only farm property and a second and entirely separate LLC that owns only farm machinery. But, multiple LLCs create additional complexity which may complicate a farming operation.
One proposed solution is the series LLC. The 131st General Assembly proposed the introduction of series LLCs in House Bill 581. A series LLC would allow a single LLC to create multiple series within the LLC without the need to create an entirely new LLC for each series. Under HB 581, a LLC organized as a series LLC would be able to limit the power of managers or members in different series within the series LLC. A series LLC would also be able to place different assets and obligations into different series within the LLC.
Under HB 581, the debts and obligations of a particular series within an LLC would have been limited to that series only. But, HB 581 did not pass during the 131st General Assembly. Therefore, series LLCs remain non-existent in Ohio.
Donation of Food and House Bill 111
House Bill 111 was introduced on March 10, 2015. This bill would have allowed food service operations to apply for a rebate from the Director of Health if they donated the food to a nonprofit organization. The rebate would have been ten cents per pound of perishable food donated. HB 111 was referred to the House Ways and Means Committee on March 16, 2015 and no further action was taken.
After several years of debate over voluntary versus mandatory GMO (genetically modified organism) labeling, Congress passed legislation yesterday to create a unified national standard requiring disclosure of information for bioengineered foods. Predictions are that President Obama will sign the legislation soon. Once effective, the new law will preempt state laws that require labeling of foods containing GMOs, such as the Vermont labeling law that recently became effective on July 1. The bill's passage through Congress represented a bi-partisan compromise led by senators Pat Roberts (R-KS) and Debbie Stabenow (D-MI). "This is the most important food and agriculture policy debate of the last 20 years," said Sen. Roberts.
What’s in the bill?
The legislation amends the Agricultural Marketing Act of 1946 to include the following:
Definition of “bioengineered” food, which is food intended for human consumption that contains genetic material that has been modified through in vitro recombinant DNA techniques and for which the modification could not otherwise be obtained through conventional breeding or found in nature.
- The Secretary of Agriculture shall determine the amount of bioengineered substance necessary to deem the food as bioengineered.
- A food that is derived from an animal that consumed feed containing bioengineered substances shall not be considered bioengineered. Thus, meat, poultry, dairy and eggs from animals that have consumed GMO feed will not be subject to the labeling requirements because they cannot be defined as bioengineered.
- Preemption of state food labeling standards. No state or political subdivision may establish requirements for labeling whether a food or seed is bioengineered or contains ingredients that are bioengineered. A food may bear disclosure of bioengineering only in accordance with federal regulations arising from this law.
- Creation of federal mandatory disclosure standard. Within two years of the bill’s enactment, the Secretary of Agriculture must establish a mandatory national bioengineered food disclosure standard and the procedures necessary to implement the national standard.
Choice of labeling. The federal standard must give a manufacturer the option of disclosing information with on-package text, a symbol or an electronic or digital link, such as a QR code. An electronic or digital link must contain access to an internet website or other type of electronic source.
- The USDA must conduct a study to identify potential technological challenges of disclosure through electronic or digital means, and must provide additional options if determined that the proposed technological options do not provide sufficient access to bioengineered food disclosure information.
- The USDA must also develop alternative disclosure options for foods contained in small packages.
Exclusions. The following are excluded from the national disclosure standard:
- Food served in a restaurant or similar retail food establishment.
- “Very small” food manufacturers, to be defined through rulemaking.
- As explained above, meat, poultry, dairy and eggs from animals that consume GMO feed.
- A food containing meat, poultry or eggs if the predominant ingredient would not independently be subject to the standard of if the predominant ingredient is broth, stock, water or a similar solution and the second-most predominant ingredient would not independently be subject to the national standard.
- “Small” food manufacturers. The USDA must define “small food manufacturers” and provide such manufacturers with a grace period of at least one year for implementation of the new standards and the additional option of providing only a telephone number or internet website on a food label to disclose required information.
- Food safety implications. The FDA conducts a pre-market consultation process for foods from genetically engineered plants; foods that successfully complete the process shall not be treated as more or less safe than non-genetically engineered counterparts because of bioengineering.
- Organically produced foods. A food certified as “organic” under the national organic program may be labelled as “not bioengineered,” “non-GMO” or with similar language.
- Enforcement. Failing to disclose a food as bioengineered is a prohibited act, but the rulemaking process will determine whether there will be penalties for noncompliance. The USDA Secretary will have authority to request records and conduct audits and hearings in regards to compliance but will not have recall authority for a food that does not comply with disclosure regulations.
The preemption established in the new law will be effective immediately and the State of Vermont is prohibited from enforcing its GMO labeling law. The USDA, through its Agricultural Marketing Service, will begin the rulemaking process for the national disclosure standard. A few key issues for agriculture to track though out the rulemaking stage will be the determination of "how much" bioengineered substance is sufficient to deem a food as bioengineered; defining the "very small" food manufacturers that will be exempt from the standard and the "small" manufacturers that will have a grace period and simpler disclosure requirements, whether QR codes and other technology options will remain viable due to expected objections that they discriminate against lower income consumers; and penalties for noncompliance. The two year window for rulemaking, however, leaves open the opportunity for future changes such as amending the legislation or prohibiting funding to be used for its implementation. Thus, while we have entered a new stage of the GMO labeling debate, the uncertainty of GMO labeling is not yet fully resolved.
To read the legislation, visit this page.
The Ohio Department of Agriculture (ODA) has revised regulations that implement Ohio’s Cottage Food Law, which addresses the production and sale of certain “non-potentially hazardous” foods. An operation producing a “cottage food” may do so without licensing and inspection by ODA, but must follow labeling requirements and is subject to potential food sampling by ODA.
Changes to Ohio’s cottage food regulations include the following:
New cottage food products
Several new food items have joined the list of cottage food products that an operator may produce without licensing or inspection by ODA:
- Flavored honey produced by a beekeeper, if a minimum of 75% of the honey is from the beekeeper’s own hives;
- Fruit chutneys;
- Maple sugar produced by a maple syrup processor, if at least 75% of the sap used to make the maple syrup is collected directly from trees by the processor;
- Waffle cones dipped in candy;
- Dry soup mixes containing commercially dried vegetables, beans, grains, and seasonings.
Foods that are not cottage food products
Two revisions clarify foods that do not fall under the cottage food law:
- Fresh fruit that is dipped, covered, or otherwise incorporated with candy;
- Popping corn.
Fruit in granola products
If adding fruit to granola, granola bars, or granola bars dipped in candy, which are all cottage food products, the fruit must be commercially dried.
The new regulations became effective January 22, 2016. View the cottage food regulations at http://codes.ohio.gov/oac/901%3A3-20. Read our other posts on Ohio’s Cottage Food Law at https://farmoffice.osu.edu/blog-categories/food.
Catharine Daniels, Attorney, OSUE Agricultural & Resource Law Program
So far in a series of posts, we’ve discussed how to sell your baked goods at farmer’s markets (here), what’s required for a home bakery license (here), and how to label and package your home-based food products (here). These posts have all discussed the requirements for producing and selling food products as a cottage food producer and under a home bakery license in Ohio. We continue the series with a description of how food sampling is conducted by the Ohio Department of Agriculture (ODA) for these home-based food products.
One of the benefits of being a cottage food producer or obtaining a home bakery license is how few conditions there are to meet in order to sell your food product in Ohio because these foods have lower food safety risks than other food products. For example, if you want to sell cottage food products, you are not required to have your home kitchen inspected and you do not have to pay any type of licensing fee (since no license is required). If you want to sell food products under a home bakery license, your home kitchen must be inspected by the ODA and you will have to pay a $10 license fee every year. For a more in depth explanation of cottage food products and home bakery licenses, see the posts mentioned above.
Even though there are lower risks and few requirements for selling home-based food products, you still have an obligation to ensure a safe food product. Compared to a restaurant, which could be inspected multiple times over the year, there is very little oversight when it comes to producing cottage food products and food products produced under a home bakery license. However, ODA does maintain some oversight in the form of food sampling.
What is food sampling?
Food sampling is conducted to determine if a food product has been misbranded or adulterated.
Misbranded Food Under Ohio Revised Code Section 3715.60, a food product is considered misbranded if:
- Its labeling is false or misleading
- It is offered for sale under the name of another food
- Its container is made, formed, or filled to be misleading
- It is an imitation of another food, unless its label contains, in type of uniform size and prominence, the word “imitation,” and immediately thereafter the name of the food imitated
When it is in package form, it does not bear a label containing:
- The name and place of the business of the producer
- An accurate statement of the quantity of the contents in terms of weight, measure, or numerical count (reasonable variations are permitted)
- For cottage food products – if the label fails to contain any of the information required for a cottage food label (see Labeling post mentioned above)
- Any word, statement, or other information required to appear on the label or labeling is not prominently placed with conspicuousness as compared with other words, statements, designs, or devices, in the labeling, and in such terms to render it likely to be read and understood by the ordinary individual under customary conditions of purchase and use
It claims to be, or is represented as, a food for which a definition and standard of identity have been prescribed by statute or rule, unless:
- It conforms to such definition and standard
- Its label bears the name of the food specified in the definition and standard, and, insofar as may be required by such statute or rules, the common names of optional ingredients, other than spices, flavoring, and coloring, present in such food.
It claims to be or is represented as:
- A food for which a standard of quality has been prescribed by rule in Section 3715.02 of the Revised Code and its quality falls below the standard unless its label bears, in the manner and form the rules specify, a statement that it falls below the standard;
- A food for which a standard or standards of fill of container have been prescribed by rule in Section 3715.02 of the Revised Code, and it falls below the standard of fill of container applicable, unless its label bears, in the manner and form the rules specify, a statement that it falls below the standard.
It is not subject to the provisions described above in section 7, unless it bears labeling clearly giving:
- The common or usual name of the food, if any
- In case it is fabricated from two or more ingredients, the common or usual name of each ingredient; except that spices, flavorings, and colorings, other than those sold as such, may be designated as spices, flavorings, and colorings, without naming each. However, if providing the common or usual name of each ingredient is impractical or results in deception or unfair competition, exemptions will be established by the Director of Agriculture.
- It purports to be or is represented to be for special dietary uses, unless its label contains the information concerning its vitamin, mineral, and other dietary properties to fully inform purchasers as to its value for such uses
- It bears or contains any artificial flavoring, artificial coloring, or chemical preservatives, unless the label states that fact
Adulterated Food Under Ohio Revised Code Section 3715.59, food is considered adulterated if any of the following apply to the food product:
- It bears or contains any poisonous or deleterious substance that may render it injurious to health
- It bears or contains any added poisonous or added deleterious substance that is unsafe
- It consists in whole or in part of a diseased, contaminated, filthy, putrid, or decomposed substance, or if it is otherwise unfit for food
- It has been produced, processed, prepared, packed, or held under unsanitary conditions where it may have become contaminated with filth, or where it may have been rendered diseased, unwholesome, or injurious to health
- It is the product of a diseased animal or an animal that has died otherwise than by slaughter, or an animal that has been fed upon the uncooked offal from a slaughterhouse
- Its container is composed, in whole or in part, of any poisonous or deleterious substance that may render the contents injurious to health
- Any valuable constituent has been, in whole or in part, omitted or abstracted from the food
- Any substance has been substituted wholly or in part for the food
- Damage or inferiority has been concealed in any manner
- Any substance has been added to, mixed, or packed with the food to increase its bulk or weight, reduce its quality or strength, or make it appear better or of greater value than it is
- It is confectionery and it bears or contains any alcohol or nonnutritive article or substance other than harmless coloring, harmless flavoring, harmless resinous glaze not in excess of four-tenths of one per cent, harmless natural wax not in excess of four-tenths of one per cent, harmless natural gum, or pectin, except this does not apply to any confectionery by reason of its containing less than one-half of one per cent by volume of alcohol derived solely from the use of flavoring extracts, or to any chewing gum by reason of its containing harmless nonnutritive masticatory substances
- It bears or contains a coal-tar color other than one from a batch certified under authority of the Federal Food, Drug and Cosmetic Act
- It has been processed or produced in violation of the cottage food rules
When are home-based food products subject to sampling?
Food sampling is usually conducted either randomly or under specific circumstances.
You likely won’t even know if your food product has been randomly sampled, unless the food product comes back from testing with an issue. The Director, or someone the Director authorizes, will purchase home-based food products that have been placed in the marketplace. The most common scenario for when your home-based food product could be subject to random food sampling is if you sell it to a retail food establishment or food service operation, such as a restaurant or grocery store. According to the Ohio Department of Agriculture, random sampling does not usually occur at farmer’s markets. Random food sampling also does not usually occur when you are selling your food product directly to the customer from your home, where the product is produced.
Specific Circumstances Under Ohio Revised Code Section 3715.02(B), home-based food products are specifically subject to food sampling when:
- A food, food additive, or food packaging material is the subject of a consumer complaint;
- A consumer requests the sampling after a physician has isolated an organism from the consumer as the physician’s patient;
- A food, food additive, or food packaging material is suspected of having caused an illness;
- A food, food additive, or food packaging material is suspected of being adulterated or misbranded;
- A food, food additive, or food packaging material is subject to verification of food labeling and standards of identity; and
- At any other time the director considers a sample analysis necessary.
What happens if there was an issue with your food product?
If your food product has been subject to food sampling and an issue is found with your product, then you will be contacted by ODA. They will make you aware of what the issue was, such as your product tested positive for a pathogen like E.coli or maybe you forgot to list an ingredient that was found in your product. ODA will then likely inspect your home kitchen. If a pathogen was found, the inspection will likely be focused on figuring out how the problem occurred and how you can remedy it. If your food product is in the marketplace, then a recall may need to be issued.
Home-produced food products typically are not a common source of consumer complaints. But just because there are not as many complaints associated with these types of food products doesn't mean you should be lax in the way you prepare your food products. Preparing safe food products for your customers is essential. Food sampling is a way ODA helps to ensure your business is doing just that.
Catharine Daniels, Attorney, OSUE Agricultural & Resource Law Program
In Ohio, thanks to our cottage food law, there are certain types of low risk food products you may produce and sell right out of your home kitchen with no inspection or licensing requirements. This is perfect for anyone who wants to test the market for their food product without the risk of investing a lot of money in a storefront. We have already discussed the requirements for a cottage food production operation here. As promised, we are now going to turn to the specific food products that Ohio law defines as "cottage foods."
Only food products that are non-potentially hazardous fall into the cottage food category. Ohio Administrative Code Section 901:3-20-04 lists the food items approved as cottage food products. This list is very specific and includes the following food products:
- Non-potentially hazardous bakery products (such as cookies, breads, brownies, cakes, and fruit pies)
- Candy (including no-bake cookies, chocolate covered pretzels or similar chocolate covered non-perishable items)
- Fruit butters
- Granola, granola bars, granola bars dipped in candy
- Popcorn, flavored popcorn, kettle corn, popcorn balls, caramel corn (does not include un-popped popping corn)
- Unfilled, baked donuts
- Waffle cones
- Dry cereal and nut snack mixes with seasonings
- Roasted coffee, whole beans or ground
- Dry baking mixes in a jar (for making items like breads and cookies)
- Dry herbs and herb blends
- Dry seasoning blends (such as dry barbeque rubs and seafood boils)
- Dry tea blends
If there is a specific food product you want to produce in your home but it is not in the cottage food definition, you may need to obtain a home bakery license. For an explanation of home bakery products and requirements for home bakery licenses, see this post.
If the food item you want to produce is not in the cottage food or home bakery definitions, then you likely need to produce the product in a facility licensed by the Ohio Department of Agriculture or local county health department. For example, salsas, BBQ sauces, canned vegetables, frozen foods and homemade hummus must be produced in a licensed facility. Specifically, salsas, BBQ sauces, and canned vegetables must be produced in a licensed cannery facility. Licensing information for these types of food products is available on the Ohio Department of Agriculture’s website. If you're not ready or able to obtain one of these licenses, you may be able to produce your food in a "food business incubator" facility that is already licensed. Several programs in Ohio provide their licensed facilities for use by food entrepreneurs, such as ACEnet's Food Manufacturing and Commercial Kitchen Facility in Athens or CIFT's Northwest Ohio Cooperative Kitchen in Bowling Green; these programs also provide additional support for developing food products.
If you want to produce a home-based food product, first review these questions:
- Is the food product in Ohio's definition of "cottage foods?" If so, you do not need a license.
- If the food product is not a "cottage food," is it a "home bakery" product? If so, you will need to obtain a home bakery license and pass a home kitchen inspection.
- If the food product is not a "cottage food" or "home bakery" product, is there another licensed facility where you can produce the product? You cannot produce the food in your home; unless you are able to use a facility that already has a license, you must obtain the appropriate license from the Ohio Department of Agriculture or your county health department.
Ohio's cottage food regulations are here.
Catharine Daniels, Attorney, OSUE Agricultural & Resource Law Program
If you already produce and sell home-based food products, or are considering starting, it is very important to label your products correctly. All home-based food products, whether sold as a cottage food or sold under a home bakery license, must be properly labeled to sell legally. If you are not familiar with the difference between cottage foods and foods produced under a home bakery license, check out our recent post on the requirements for selling your home-based food products at farmer’s markets here. The food labeling and packaging requirements for both cottage foods and foods produced under a home bakery license are very similar with a few differences that will be highlighted below.
All cottage food products must contain a label that includes the following information:
- The name and address of the cottage food production operation.
- The name of the food product – Ex: “Chocolate Chip Cookies”
- The ingredients of the food product, in descending order of predominance by weight. This means your heaviest ingredient will be listed first and the least heavy ingredient listed last. Also, ingredients must be broken down completely if the ingredient itself contains two or more ingredients. For example, if unsalted butter is one of your ingredients, then you would list it as follows: Butter (Sweet Cream, Natural Flavor).
- The net quantity of contents in both the U.S. Customary System (inch/pound) and International System of Units (metric system). This must be placed within the bottom 30% of the label in a line parallel to the bottom of the package. An example of what this would look like in both the U.S. Customary System and International System is: Net Wt 8 oz (227 g)
- The following statement in ten-point type: “This product is home produced.” This statement is required because it gives notice to the purchaser of the food product that the product was produced in a private home that is not required to be inspected by a food regulatory authority.
Allergen Statement. There are 8 foods considered a major food allergen under the Food Allergen Labeling and Consumer Protection Act that must be declared on your label if they are contained in your food product. They include:
- Fish – For fish, the specific species must be declared – Ex: Bass
- Crustacean Shellfish – For shellfish, the specific species must be declared – Ex: crab
- Tree Nuts - For tree nuts, the specific type of nut must be declared – Ex: Almond
If any of these major allergens are contained in your food product, then you may declare them in either of two different ways.
First, you can list the allergens in a “Contains” statement. The “Contains” statement would follow the ingredients list and look like this: “Contains: Wheat, Egg.”
The second way to declare an allergen is in your ingredients list. An example would be: “Enriched flour (wheat flour, malted barley, niacin, reduced iron, thiamin monotrate, riboflavin, folic acid), Egg.” In this example, wheat and egg are specifically stated within the ingredients so you would not need to put an additional “Contains” statement.
Nutritional information is not required for cottage foods unless a nutrient content claim or health claim is made. An example of a nutrient content claim would be “low fat.” An example of a health claim would be “may reduce heart disease.” If either or both of these claims are made, then you are required to include a Nutrition Facts panel on your cottage food product. More information on the Nutrition Facts Panel can be found on the U.S. Food and Drug Administration’s website.
Cottage foods may be sold in any packaging that is appropriate for the food product with one exception. Cottage foods may not be packaged using reduced oxygen packaging methods. Reduced oxygen packaging is defined as removing oxygen from a package, displacing and replacing oxygen with another gas or combination of gases, or controlling the oxygen content to a level that is below what is normally found in the surrounding atmosphere. Reduced oxygen packaging includes vacuum packaging and modified atmosphere packaging:
- Vacuum Packaging
When air is removed from a package of food and the package is hermetically sealed so that a vacuum remains inside the package.
- Modified Atmosphere Packaging
When the proportion of air in a package is reduced, the oxygen is totally replaced, or when the proportion of other gases such as carbon dioxide or nitrogen are increased.
Foods Produced Under a Home Bakery License
For foods produced under a home bakery license, you will follow the same guidelines for labeling as explained above with a few exceptions.
- The statement, “this product is home produced” is not required to be on your label. The statement is not required because your home kitchen must be inspected by the Ohio Department of Agriculture to obtain a home bakery license.
- If your home bakery product requires refrigeration, then you must include the language “Keep Refrigerated,” or a similar statement, on your label.
The same guidelines also apply here.
There is no restriction against using reduced oxygen packing methods if you have a home bakery license. You may sell your baked goods in any package that is appropriate for the food product.
Why is labeling so important?
Properly labeling your food products will allow you to legally sell them. It is essential to make sure your labels are accurate or else you could be found guilty of a fourth degree misdemeanor for selling a misbranded food product. For additional resources, see the following:
An example label can be found on the Ohio Department of Agriculture’s website under the Food Safety Division at: http://www.agri.ohio.gov/divs/FoodSafety/docs/CottageFoodLabelExample.pdf
Also, the U.S. Food and Drug Administration website provides great resources for guidance on food labeling: http://www.fda.gov/Food/GuidanceRegulation/GuidanceDocumentsRegulatoryInformation/LabelingNutrition/ucm064880.htm
Peggy Hall, Asst. Professor, Agricultural & Resource Law Program
Bakers who want to produce and sell baked goods such as cheesecakes, cream pies, custard pies or pumpkin pies in Ohio must first obtain a “home bakery” license. These types of baked goods are considered “potentially hazardous” because they create food safety risks if not prepared and stored properly. To safeguard against a food safety incident, the State of Ohio requires the home bakery to be inspected and licensed by the Ohio Department of Agriculture’s Food Safety Division.
What is a “home bakery”? The home bakery license is only available for those who produce potentially hazardous baked goods in kitchens that are in homes ordinarily used by the owner as a primary residence. A home bakery kitchen may contain only one single or double oven, which cannot be a commercial oven. The following situations are not home bakeries, and likely require a “bakery” license rather than a home bakery license: the kitchen is not in a home, the home is not used as a residence, the home is not occupied by its owner, the kitchen is a second kitchen, the kitchen has multiple separate stoves or ovens, or the kitchen has a commercial stove or oven.
What’s required for a home bakery license? The home bakery operator must apply for a license and pay a $10 license fee. The process begins by contacting the Food Safety Division at the Ohio Department of Agriculture at (614) 728-6250. The Division will supply an application and arrange for an inspection. Once licensed, the operator must pay a $10 annual renewal fee.
What happens in a home bakery inspection? An inspector from ODA will visit the home, meet with the applicant and inspect the home kitchen for the following:
- Walls, ceilings and floors are clean, easily cleanable and in good repair;
- Kitchen does not have carpeted floors;
- There are no pets or pests in the home;
- Kitchen, equipment and utensils are maintained in a sanitary condition;
- Kitchen has a mechanical refrigerator capable of maintaining 45 degrees and equipped with a thermometer;
- If the home has a private well, proof of a well test completed within the past year and showing a negative test result for coliform bacteria;
- Food product labels that meet labeling requirements.
What if the baker also produces foods that are not “potentially hazardous”? An operator with a home bakery license may also produce and sell any food defined by Ohio law as a “cottage food.” Cottage foods include non-hazardous baked goods such as cookies, cakes, fruit pies, brownies, breads, candies, jams, jellies, fruit butters, granola, popcorns, unfilled baked donuts, waffle cones, pizzelles, dry cereal, nut snack mixes with seasonings, roasted coffee, dry baking mixes, dry seasoning blends and dry tea blends. Those who produce only cottage foods do not need any type of license from ODA.
What if someone operates without a home bakery license? Failing to obtain the home bakery license can result in prosecution; the operator is subject to criminal misdemeanor charges. Additionally, those without a license may not be able to sell their baked goods in many situations, as it is common for farmer’s markets and others to require that a vendor have the proper license.
A license is one form of food safety insurance. Passing an ODA inspection for a home bakery license is one layer of insurance against the possibility of a food safety incident—those who satisfy ODA’s requirements have assurance that they’re using good practices. But home bakers shouldn’t use the license as the only form of insurance. Careful control of the home kitchen environment, continuous education on food safety practices, food product liability insurance coverage and formation of a business entity such as a Limited Liability Company are additional layers of liability protection. Because selling food products poses a high risk of legal liability, home bakers should consider the license as just one of several requirements for operating a home bakery business.
Catharine Daniels, Attorney, OSU Extension Agricultural & Resource Law Program
Soon, farmer’s markets all over Ohio will be full of vendors selling a variety of products--from fresh fruits and vegetables to home baked goods. For vendors selling home baked goods, it can be tricky to understand the legal landscape at a farmer's market. What laws apply? What type of license is required? What do you need to do to be in compliance with the law?
The first step to answering these questions is to determine how your baked items are classified under state law. Ohio law has two categories of regulation that include baked goods: cottage food regulations and home bakery regulations. Knowing which category your baked goods fall under will determine which laws apply to you. The major difference between the two is whether or not the baked good is considered "potentially hazardous" for consumption if not prepared and managed properly.
A "cottage food operation" is an operation in a person’s home (i.e., in the cottage) where food items that are not potentially hazardous are produced for sale. Ohio Revised Code section 3715.01(A)(19). Ohio law provides a list of baked goods that are cottage foods because they are not potentially hazardous: cookies, breads, brownies, fruit pies, cakes, unfilled baked donuts, granola and pizelles. (There are other types of food products included as cottage foods, but we will discuss those further in future posts.) Because these cottage foods do not pose high food safety risks, they are not highly regulated. A few important questions illustrate Ohio's cottage food laws:
- If I want to produce and sell a cottage food, do I need a license from ODA?
No; the Ohio Department of Agriculture does not require a license if you plan to sell non-potentially hazardous "cottage foods" such as cakes, brownies, breads, fruit pies and cookies. No additional license is needed from the local health department where the farmer’s market is located.
- Will my home kitchen where I produce the cottage food need to be inspected?
No inspection is required for a home kitchen producing "cottage foods."
- What do I need to do to sell my cottage food at a registered farmer’s market?
You must properly label the baked good (see specific labeling requirements here). The label must contain the statement: “This Product is Home Produced.” This alerts potential buyers that the food was produced in a private home that is not subject to inspection.
- Can I sell my cottage food at any farmer’s market?
Under the Ohio cottage food law, you may only sell cottage foods within the state of Ohio. Home Bakeries If you plan to produce "potentially hazardous" baked goods, then you must abide by Ohio's regulations for "home bakeries." The food safety risks posed by potentially hazardous foods lead to a higher level of regulation over Ohio's home bakeries.
- What foods are "potentially hazardous" foods?
Potentially hazardous foods are those that are in a form capable of supporting rapid and progressive growth of infectious or toxigenic microorganisms--these are food products that require temperature control because they create risks for sickness if not prepared and handled property. Examples of potentially hazardous baked goods are cheesecakes, custard pies, filled donuts and cream pies – think of baked goods that typically need to be refrigerated.
- Do I need a license to operate a "home bakery"?
Yes, you are required to obtain a license from the Ohio Department of Agriculture to operate as a "home bakery." There is an annual license fee of $10. Also, a local license will be required. Contact the local health department where the farmer’s market in which you will sell is located to obtain a license from them for selling the "home bakery" goods in their market. If you are selling cheesecake for example, not only do you need a home bakery license from ODA to produce the cheesecake in your home, but you will also need a license from the local health department to sell the product at the farmer’s market.
- Will my "home bakery" need to be inspected?
Yes. You will be subject to inspections by the Ohio Department of Agriculture. A few requirements a home bakery kitchen must meet include: being in good repair, being clean and easily cleanable, having no carpeted floors, being pest free, having no pets in the home, and having a mechanical refrigerator equipped with a thermometer.
- What foods may I produce in my "home bakery"?
In addition to being able to produce the potentially hazardous baked goods such as cheesecakes, custard pies and cream pies , you may also produce those baked goods that fall under the "cottage foods" definition--cakes, cookies, brownies, etc.
- What do I need to do to sell goods from my "home bakery" at a registered farmer’s market?
Just as with cottage foods, you must properly label all baked goods from a "home bakery" (see specific labeling requirements here).
- Can I sell my "home bakery" goods at any farmer’s market?
Maybe. Unlike cottage food products, a baked good produced under a home bakery license may be sold and distributed outside of Ohio. You may be able to sell your baked good at a farmer’s market outside of Ohio, but it is highly likely there would be additional requirements, such as obtaining a license from the local health department where the market is located.
The importance of good management practices
To make sure you're in compliance with the law, it is best to check with the Ohio Department of Agriculture and your local health department when you are unsure about how your baked good is classified. It is also a good idea to check with the farmer’s market where you wish to sell your baked good for any additional rules or regulations they may impose for the venue. Also keep in mind the importance of using good production practices when creating your baked goods--a home bakery inspection helps ensure this. But if you're not required to be inspected and licensed, utilize all information available to you to institute good management practices that will yield a safe food product.
For additional information on cottage food and home bakery regulation, visit the Ohio Department of Agriculture, Division of Food Safety.
Catharine Daniels, Attorney, OSU Extension Agricultural & Resource Law Program
As the temperatures start to climb, many producers are gearing up for planting season. If you are a farmer who grows, harvests, packs, or holds fruits and vegetables intended for human consumption, you should be aware of the proposed produce safety standards that were released by FDA on January 16, 2013, as part of the Food Safety Modernization Act. The proposed rule could impact your business later this year. The comment period has been extended: originally all comments were due by May 16, 2013, but now with the extension, you have until September 16, 2013 to submit comments. So if you have not had a chance to review and comment on the proposed rule, there is still time.
What does the proposed produce safety rule do? The focus of the proposed rule is foodborne illness prevention. The goal is to now focus on preventing a foodborne illness outbreak rather than reacting to one. Foodborne illness outbreaks are a major concern and produce is often associated with such outbreaks. As a producer, you are responsible for ensuring your product is safe. If you fail to do so, you could face liability.
The proposed rule establishes “science-based standards for growing, harvesting, packing and holding produce on domestic and foreign farms.” To address foodborne illness prevention, the proposed rule identifies seven routes of microbial contamination where prevention is key and sets standards for each:
- Agricultural Water – The rule proposes requiring all agricultural water to be safe and of adequate sanitary quality for its intended use and to be inspected at the beginning of the growing season to identify conditions that are reasonably likely to introduce pathogens. An alternative to the water requirements may be permitted if the alternative is scientifically established to provide the same amount of protection as the proposed requirement.
- Biological Soil Amendments of Animal Origin – Types of treatment, methods of application, and time intervals between the application of a biological soil amendment of animal origin and crop harvest are three proposed measures to reduce risk. An alternative to these requirements is also permitted as long as the alternative is scientifically established to provide the same amount of protection as the proposed requirement.
- Health and Hygiene – The rule proposes farm personnel be required to use hygienic practices, including hand washing and maintaining adequate personal cleanliness.
- Domesticated and Wild Animals – For domesticated animals, the rule proposes waiting an adequate period between grazing of the animals and harvesting produce from that growing area. If working animals are being used where produce has been planted, the rule requires farms to take measures to prevent pathogens from being introduced onto the produce. For wild animals, the rule requires farms to monitor for significant wild animal intrusion immediately before harvest and as needed during the growing season.
- Equipment, Tools, and Buildings – Some of the key requirements proposed for equipment and tools includes: using equipment and tools that are of adequate design, construction, and workmanship, inspecting, maintaining, and cleaning all food-contact surfaces of equipment and tools, and storing and maintaining equipment and tools to prevent contamination. Some of the key requirements proposed for buildings includes: requiring buildings to be a suitable size, construction, and design to facilitate maintenance and sanitary operations, buildings must provide sufficient space for placement of equipment and storage of materials, and requiring the plumbing system be properly designed, installed, and maintained.
- Sprouts – Requirements include: treating seeds before sprouting, testing spent sprout irrigation water for pathogens, and monitoring the growing environment for Listeria species or Listeria monocytogenes.
- Training – Training would be required for farm personnel would handle produce or food-contact surfaces, and for supervisors.
Who is exempt from the proposed rule? The standards and requirements of the proposed rule will apply to farms that grow, harvest, pack, or hold fruits and vegetables intended for human consumption in its raw or natural state. The rule however, does exempt certain farms. Total exemptions include:
- Produce that is rarely consumed raw, such as potatoes.
- Produce that is destined for further processing, such as green beans destined for a canning operation.
- Produce intended for personal or on-farm consumption.
- Farms that sell $25,000 or less of food per year.
A farm could also be partially exempt from the rule if the farm meets two requirements:
- Food sales average less than $500,000 per year during the last 3 years.
- Sales to qualified end-users exceed sales to others during the same period.
For purposes of the second requirement, a qualified end-user is a consumer, restaurant, or retail food establishment. The consumer may be located anywhere, but the restaurant or retail food establishment must be located in the same state as the farm or not more than 275 miles away from the farm.
If your farm does qualify for a partial exemption, then you must comply with certain labeling requirements. If a label is already required on the produce, then the name and business address of the farm where the produce was grown must be included on that label. If a label is not already required, then the name and business address must be displayed at the point of purchase.
Could I lose my exemption status? Yes. FDA may withdraw an exemption if:
- There is an investigation of a foodborne illness outbreak directly linked to your farm, or
- FDA determines it is necessary to protect the public health and prevent or mitigate a foodborne illness outbreak based on conduct or conditions associated with your farm.
How soon do I have to start complying with the rule? After the final rule is published, it will become effective within 60 days. Farms would have between two and four years to comply with the rule depending on the value of food their operation sells during the previous three-year period:
- Businesses selling less than $250,000 per year would have 4 years after the effective date to comply and 6 years to comply with some of the water requirements
- Businesses selling between $250,000 and $500,000 per year would have 3 years after the effective date to comply and 5 years for some of the water requirements
- Businesses selling more than $500,00 per year would have 2 years after the effective date to comply and 4 years to comply with some of the water requirements.
The proposed rule is currently open for comments. Comments must be submitted by September 16, 2013 to be considered. For more information on the proposed rule and to submit a comment, visit: http://www.fda.gov/Food/FoodSafety/FSMA/ucm334114.htm.