Selling home-produced foods that use fresh fruit: know the laws

Fresh fruits are coming into season all across Ohio, offering those who sell home-produced foods opportunities for new seasonal products.  But it’s important to know how Ohio law regulates fruit-based foods, which can include a wide range of products such as jams, pies, and cheesecakes.  Some of these food products are safe to make at home and sell to consumers with just minimal regulatory requirements, but producers might be surprised to learn that some fruit-based product ideas might require a different license or simply cannot be legally produced in a home-based kitchen.  Here’s a rundown on different laws that apply to fruit-based home-produced foods.

Baked goods using fresh fruit

Adding fresh fruit to baked goods such as muffins, cookies, breads, pies, and cakes is permissible under Ohio’s “Cottage Food Law.”  The cottage food law regulates lower-risk foods and allows home producers to make and sell foods on the cottage food list without a license, although the law does contain labeling requirements and marketing restrictions on cottage foods.  For baked goods, the Cottage Food Law allows home-based producers to make any “non-hazardous” baked good without the need for a license or inspection.  Non-hazardous baked goods includes cookies, brownies, cakes, breads, fruit pies, cobblers, granola bars, and unfilled baked donuts. 

But note that using fruit in certain ways can affect the food safety risk and change whether the Cottage Food Law applies to the food.  Here are three exceptions when using fruit with baked goods:

• Drying or dehydrating the fruit.  A producer can’t dry or dehydrate the fresh fruit before adding it to the baked good. Because drying and dehydration processes increase food safety risk, the Cottage Food Law doesn’t allow those practices.  A producer can, however, purchase and add commercially dried or dehydrated fruits to baked goods.
• Fruit garnishes and fillings.  A different law applies when using fresh fruit as a garnish or filling in or on a baked good, as the fruit now creates a food safety risk. Because the baked good must be prepared properly and held at certain temperatures to keep it from spoiling, a home-based producer must have a “Home Bakery” license and a home inspection to produce the higher-risk fruit-based product and also must obtain a “Retail Food Establishment” license to sell the goods at a farmer’s market.
• Cheesecakes, cream pies and custard pies.  These types of baked goods are not included on the Cottage Food list, so the law differs for them—whether with or without fruit.  As dairy products, cheesecakes, cream pies and custard pies require temperature controls to reduce food safety risk. A producer who wants to sell any of these products must have a Home Bakery license, along with a Retail Food Establishment license if selling at a farmer’s market.

Fruit-based jams and jellies

Most jams, jellies, chutneys and fruit butters also fall under Ohio’s Cottage Food Law, and producers can make the products at home and sell them without a food license.  But there are exceptions! Home-based producers need to know that Ohio law treats these fruit-based jam and jelly products differently:

• Freezer jam or jelly.   Freezer jam or jelly is made without cooking the fruit and to keep it from spoiling, it requires storage at lower temperatures in a freezer or refrigerator.  Freezer jam or jelly is not a cottage food, as it has higher food safety risk, and must be produced in a commercial kitchen with proper licensing.
• Sugar-free jam, jelly or fruit butter.  Using certain types of artificial sweeteners increases the food safety risk of these types of products.  For this reason, sugar-free jam and jelly products are not on the cottage food list.  As with freezer jams and jellies, production in a licensed commercial kitchen is necessary.

Salsas and relishes

A fresh peach salsa is a sure sign of summer, but home-based producers need to know that they can't make and sell salsa from a home kitchen.  Salsas, relishes, fermented foods, pickles, sauces—all of these types of foods carry higher food safety risks.  Proper facilities and processing practices are critical to maintain the food’s safety, so the foods must be made in a licensed commercial facility.

For more information

Do you want to know more about the Cottage Food Law and Home Bakery Law?  Visit the Food Law Library on OSU’s Farm Office website for videos and bulletins, along with information about our Food Business Central online course.  For questions about making foods in licensed food processing facilities and commercial kitchens, the two governmental agencies to contact with questions are the Ohio Department of Agriculture’s Food Safety Division and your local Health Department.   Do you need help developing a food product idea? See the resources offered by the Northeast Ohio Ag Innovation Center.