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The next battleground for cottage foods

You may recall that last year home bakers were able to get a law passed that allowed them to legally sell their products in the state. (See here for all the background.) Now that the legislative work is done, the next step is to deal with the rulemaking, and the regulations that have been proposed so far by the Texas Department of State Health Services are not sitting well.

Kelley Masters — a Cedar Park baker who sells cakes, cookies and brownies from her home — fears that the regulations will discourage people from even starting. She said it took a fellow baker an hour and a half to complete a label for a cupcake.

Because most cottage food producers fill custom orders, Masters said, it’s unlikely that one label can serve as a template for future baked goods.

“They don’t churn out cookies by the dozens and sell them in packages like the Girl Scouts do,” Masters said. “For these custom bakers who never do the same thing twice, every order would require a brand new label.”

Department of State Health Services spokeswoman Carrie Williams said the labeling requirements have been proposed to protect consumers, so people know what they’re eating.

Still, Williams said the agency is “well aware” of local food producers’ concerns about the proposed requirements.

“The draft rules will change, no doubt,” she said. “We’re not trying to over-interpret the statute to make things unnecessarily hard for people. Our goal is always to meet the intent of the law, and we’ll adjust the language as we go.”

The public has until Feb. 26 to comment on the proposed rules. The department will then review the feedback and tweak the rules, which Williams said will probably be finalized this summer.

Here’s the DSHS page on cottage food operations. The Texas Cottage Food Law website summarizes the rules and their objections to them:

In a nutshell, DSHS has taken these simple labels (which were simply supposed to inform the consumer who they bought their food from, where the food was made, and that the food was made in a home kitchen), and turned them into a bureaucratic string of red tape a foot long. NONE of the labeling rules proposed by DSHS apply to licensed bakeries, food establishments, coffee shops, or doughnut shops. But for some reason DSHS has concluded that in the name of public health, a home baker must weigh a wedding cake and list that weight (in metric) in order to operate a legal business.

PROPOSED RULES

All foods prepared by a cottage food production operation must be labeled.

(1) The label information shall include:

(A) the name and physical address of the cottage food production operation;
(B) the common or usual name of the product and an adequately descriptive statement of identity;
(C) if made from two or more ingredients, a list of ingredients in descending order of predominance by net weight, including a declaration of artificial color or flavor and chemical preservatives, if contained in the food;
(D) an accurate declaration of the net quantity of contents including metric measurements;
(E) allergen labeling in compliance with the Food Allergen Labeling and Consumer Protection Act of 2004, Pub. L. No. 108-282, Title II, 118. Stat. 905; and
(F) the following statement: “Made in home kitchen, food is not inspected by the Department of State Health Services or a local health department” in at least the equivalent of 11-point font and in a color that provides a clear contrast to the background.

(2) Labels must be clearly legible and printed with durable, permanent ink.

(A) Ingredient statements shall be at 1/16 of an inch or larger.
(B) Ingredients shall include components of the ingredients.
(C) Net quantity of contents shall be separated from other text on the label and must be located in the bottom third of the label.

The 30-day public comment period starts January 27 and ends February 26, 2012.

Comments on the proposed new rule may be submitted to Cheryl Wilson, Food Establishments Group, Policy, Standards and Quality Assurance Unit, Division of Regulatory Services, Environmental and Consumer Safety Section, Department of State Health Services, Mail Code 1987, P. O. Box 149347, Austin, Texas 78714-9347, (512) 834-6770, extension 2053, or by email to cheryl.wilson@dshs.state.tx.us. Comments will be accepted for 30 days following publication of the proposal in the Texas Register.

The Dallas Observer was first to report on this, and the Austin Chronicle was right behind them. According to each of those reports, the DSHS proposal is not in accordance with the intent of the Cottage Food Law’s main legislative advocate:

Rep. Lois Kolkhorst, who authored the bill, has gone on record as saying that DSHS has overreached and, in a Food Establishments committee meeting last week, requested that DSHS take the drafted rules back and revise them to reflect the spirit of the law. However, DSHS instead filed the draft with the Texas Register on January 27, when the 30-day public comment period opened.

See page 296 of the January 27 edition of the Texas Register for that filing. If you care about this issue, you have till the 26th of February to make your voice heard on it.

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One Comment

  1. […] Department of State Health Services proposed regulations for home bakers that they thought were excessive and onerous. I don’t recall coming across any news about how that turned out, but this Statesman feature […]

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