Ohio Cottage Foods
Written by Ellen Essman, Law Fellow, Agricultural & Resource Law Program
A few bills related to food preparation and dining in the great outdoors are on the move in the Ohio General Assembly.
One of the bills, Senate Bill 233, would allow those who produce cottage foods to do so in a firebrick oven on a patio connected to the producer’s residence. According to Ohio law, cottage foods are non-hazardous and are produced in a person’s home. Cottage foods can include, but are not necessarily limited to: bakery products, jams, jellies, candy, and fruit butter. If passed, SB 233 would change the current law, which only allows cottage foods to be prepared in an oven or on a stove inside the cottage food producer’s residence. SB 233 would allow producers to use both an inside oven and an outside firebrick oven. The bill is currently being debated in the Senate Health, Human Services & Medicaid Committee.
Two identical bills concerning dogs on restaurant patios are working their way through the two houses of the General Assembly—House Bill 263 and SB 182. The bills would prohibit state agencies and local boards of health from adopting rules banning dogs “in an outdoor dining area of a retail food establishment or food service operation.” Even though the government would not be able to ban dogs in those areas, the bills would allow individual restaurants to decide to keep dogs out of their outdoor areas, with the exception of service dogs. HB 263 is being considered in the House Economic Development, Commerce & Labor Committee. SB 182 is currently being discussed in the Senate Health, Human Services & Medicaid Committee.
Will cottage food producers be able to make tasty treats in firebrick ovens? Will your canine companion generally be allowed to accompany you on restaurant patios throughout Ohio? Stay tuned to the Ag Law Blog for any updates on these bills.
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