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cottage foods

Pickle ’em if you got ’em

A victory for home foodies.

Sen. Lois Kolkhorst

In a victory for home cooks across Texas, the Legislature has expanded the state’s definition of the word “pickle,” allowing for pickled beets, carrots and other produce to be easily sold at farmers’ markets alongside pickled cucumbers.

The legislation, pushed by state Sen. Lois Kolkhorst, R-Brenham, and state Rep. Eddie Rodriguez, was passed by the House Tuesday and given final approval by the Senate Thursday. It still needs a signature from Republican Gov. Greg Abbott before becoming law.

Judith McGeary, head of the Farm and Ranch Freedom Alliance, said her group is excited to see the measure advance and that it would broaden “options for the farmers and the consumers who are looking for healthy, locally-made foods.” Texas has been among the more restrictive states in allowing foods to be sold at markets, she said.

Texans have been able to hawk pickled cucumbers in local venues since 2013, when Rodriguez, an Austin Democrat, authored a law that let cooks sell certain goods without first becoming licensed food manufacturers. But an unexpected rule authored by the state’s Department of State Health Services has barred home chefs from selling any other kind of pickled produce without first installing a commercial kitchen, taking a course, and obtaining a special license.

“Only pickled cucumbers are allowed,” an FAQ section on the agency’s website specifies. “All other pickled vegetables are prohibited.”

The rule was drafted to implement the new law, and a department spokesperson told the Texas Tribune last May that the agency did not receive objections to the pickle definition. The spokesperson declined to comment Tuesday.

[…]

Laws authored by Kolkhorst and Rodriguez had already made it easier for home cooks to peddle their goods at local markets, by exempting them from regulations that some consider onerous. An old rule that small-batch bakers have a commercial kitchen, for example, was jettisoned in 2011. The exemption was extended to a host of other foods in 2013, including fruit butters, popcorn and pickles — though the State Health Services department took that to mean pickled cucumbers only.

As the story notes, a couple who intended to make some money pickling vegetables filed a lawsuit against State Health Services, which brought the issue to light. The story also notes the cottage food law, which passed in 2011 in its second attempt. I am as before on the side of the home foodies, so I’m glad to see this bill get passed. Hopefully, there will be no more weird bureaucratic interpretations necessitating further bills like this one.

More on the foodie caucus

The Trib has an update.

Rep. Eddie Rodriguez

On a mission to advance the local food movement, a Democrat from Austin is finding common ground with Republicans and rural Texans.

When Republicans hear a Democrat saying there’s “too much regulation, their ears perk up,” state Rep. Eddie Rodriguez, that Democrat, said with a smile. He founded the Farm to Table Caucus, the nation’s first bipartisan legislative caucus focused on advancing the local production of healthy food. Ultimately, Rodriguez says, the caucus could help address health issues in Texas like obesity and the scarcity of healthy food options in poor urban neighborhoods.

While their large-scale counterparts receive agricultural tax relief, urban and small-scale family farms do not qualify under many county appraisal districts’ definitions of agricultural land use. And a lack of consistency in local health regulations makes it difficult for farmers and chefs to know what is permitted, what requires a permit and what is off-limits when selling or distributing locally produced foods.

[…]

“We have to look at the balance of the concern about food safety versus food freedom,” said state Rep. Lois Kolkhorst, R-Brenham, who co-chairs the Farm to Table Caucus. Although she usually favors local government control, Kolkhorst said the state should provide consistent definitions on what type of food production is allowable.

She authored the Cottage Food Law, which was passed in 2011 and allows Texans to sell baked and canned goods from home as long as they meet certain requirements.

Rodriguez has drafted a variety of ideas for the caucus to consider, such as reducing barriers to tax exemptions for urban farms, allowing onsite processing of feral hog and deer meat that could be prepared at soup kitchens, and expanding the Cottage Food Law.

See here for the background. While I generally agree with the goals here, I’d feel better about adding more exemptions to our tax code if we had a sunset-like process in place to review them periodically see which ones are still useful and desirable and which have morphed into money-sucking boondoggles and special-interest-protected sacred cows. But that’s a separate fight. In the meantime, as I said I generally support this effort and wish them well in the next session.

Checking in with the cottage foodies

Recall again 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. After the law was passed there was another uproar as the Texas 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 story provides an update.

When the law passed in May 2011, home bakers rejoiced, but their elation was short-lived. Shortly after the law went into effect in September, the Department of State Health Services, which was tasked with drawing up specific labeling requirements for the new cottage bakers, released rules that had many home bakers hotter than their ovens.

Among other recommendations, the health services department said that home bakers would have to include a full list of ingredients by weight with every cake, cookie or brownie.

“I was nervous about the proposed rules because they were absolutely ridiculous,” said Beth Reyburn, owner of Never Enough Pie, an Austin-based home bakery that offers, among other things, Pie of the Month subscriptions. “Requiring a list of every single ingredient by weight is essentially giving away the recipe. That’s my livelihood.”

Even storefront bakeries aren’t required to list ingredients by weight, home bakers said, and besides, have you ever tried to weigh a multi-tiered wedding cake?

The law contains a lot of common-sense provisions, home bakers said. It requires that the sale of baked goods, jams, jellies and herb mixes take place in the home of the cottage food operator. It allows the customers to self-inspect the kitchen, meet the producer and make sure conditions meet their approval. Cottage food operators can’t sell over the Internet. They also can’t sell highly perishable goods, such as cheesecakes or anything with meat in it. Cottage food producers can’t resell through stores or restaurants, and they can’t sell at farmers markets.

But those labeling rules caused more than a few home bakers to rethink their plans to sell cookies on the side.

[…]

Just a few weeks ago, the state health services department backed off the proposed labeling plan. Cottage food operators will have to list the name of their business, address, any allergens like milk or nuts, and a statement that the product was made in a kitchen that was not inspected by the health department.

Home bakers are breathing a sigh of relief.

Much more reasonable. You can see the current draft here. According to the story, this has enabled the home bakers to get up and running, which is good news. The bad news is that there is yet another obstacle to overcome, at least for some of them.

Recently, [Kelley] Masters and other cottage food operators have been facing down local government authorities over zoning issues. For example, Frisco passed zoning rules before the cottage food law went into effect that ban bakers from selling out of their homes, which the state law requires that they do. Frisco is the only city to specifically ban cottage food operators, [Farm and Ranch Freedom Alliance founder Judith] McGeary said.

The only gluten-free baker for 30 miles, Gluten Free Medley, might have to shut down while city officials mull what to do. There are no provisions in the state law that prevent local entities from using zoning rules to shut down cottage food producers.

The showdown between home bakers and zoning rules will likely have to be settled by the state legislature, said McGeary, who testified before state lawmakers last month about increasing access to healthy foods and argued that cottage food operators are one way to do that.

You can see McGeary’s testimony here; it mostly has to do with agriculture but on page 4 she references cottage foods and zoning laws. As you know, I’m not a reflexively anti-regulation person, but I firmly believe regulations must be fair and reasonable, and I have a lot of sympathy for small operators who often don’t get the kind of considerations that big ones do. As is often the case with new legislation, some tweaking will be needed to account for this situation.

The foodie caucus

Sure, why not?

Rep. Eddie Rodriguez

State Rep. Eddie Rodriguez, an Austin Democrat and admitted foodie, is creating the Farm to Table Caucus of the Texas House. Rodriguez is expected to send letters to all of the House’s 150 members Monday and invite them into the bipartisan group.

As it seeks to ride the wave of popularity of buying local food, the caucus will be focused on making it easier for small producers of healthy food to expand their markets, while allowing for increased availability of their locally produced food.

“It’s the outcome of a movement that’s happening around the state,” Rodriguez said. “It’s about time for something like this to happen.”

The caucus will focus on educating policymakers and the public about the value of small food producers, making sure government agencies don’t get in the way of small operations’ progress and helping to remove obstacles to the development of the market.

The result could be a new form of local economic development, Rodriguez said.

He also said that the caucus will marry the interests of rural and urban Texas, two factions that regularly find themselves at odds in the Legislature over a variety of issues such as transportation, public education and access to health care.

Rep. Lois Kolkhorst of Brenham, who along with Rep. Rodriguez sponsored the Cottage Food bill that was passed last session, will be the caucus’ vice chair. The Lege recently had its first ever joint hearing between the House Agriculture and Livestock committee and the House Urban Affairs committee, so there’s clearly some momentum on this. I’ll be interested to see who joins up and what they do with it next session.

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 [email protected] 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.

Here are the vetoes

Sunday was the deadline for Rick Perry to sign, veto, or leave unsigned all of the remaining bills from the regular legislative session. He had 1170 pieces of legislation awaiting a decision while he was busy gallivanting around the country. Yesterday, he finished the task, issuing a total of 24 vetoes, one of which was for a fairly high-profile bill.

Notable among the vetoed bills is HB 242, a measure that would have banned texting while driving.

“I support measures that make our roads safer for everyone, but House Bill 242 is a government effort to micromanage the behavior of adults. Current law already prohibits drivers under the age of 18 from texting or using a cell phone while driving. I believe there is a distinction between the overreach of House Bill 242 and the government’s legitimate role in establishing laws for teenage drivers who are more easily distracted and laws providing further protection to children in school zones,” Perry said in his veto statement.

State Sen. Judith Zaffirini, D-Laredo, who wrote the texting while driving ban, said she was dismayed and disappointed that Perry vetoed the measure. Legislators’ decisions can save lives, and she said the texting ban would have done just that.

“From my perspective there will be blood on his hands,” Zaffirini said. “Every time that we hear about a tragedy related to distracted driving … I hope that is forwarded to the Governor.”

Perry’s vetoes will also mean a couple more agenda items for lawmakers to accomplish during the special session. He nixed sunset bills that are necessary to keep the Departments of Information Resources and Housing and Community Affairs going.

HB 2608, the sunset bill for TDHCA would continue operations of the agency until 2023, but Perry argued “prescriptive language was added to House Bill 2608 that would impose a new layer of bureaucracy that makes unrealistic demands of the state, delay assistance to communities hit by disasters and duplicate disaster planning conducted by the Texas Division of Emergency Management.”

Perry also took issue with the bill’s reliance on federal disaster recovery funds and a requirement the state issue plans for how it would use those funds.

“I do not take lightly the impact this veto may have in potentially shutting down TDHCA over the next year. That is why I have asked the legislature during this special session to amend language in pending legislation to continue the operation of TDHCA,” Perry stated.

You can see Perry’s statements here and here. Of greater interest to me are the bills he didn’t veto, including the Texas Cottage Food Law bill SB81 and the TV recycling bill SB329. As for the TDHCA bill, I don’t recall that being added to the call for the special session, but there’s still two weeks left in the session so there’s plenty of time for it if it needs to be in. Any surprises in what did and didn’t get vetoed to you?

The Cottage Food Law was adopted

I received the following email from Kelley Masters of the Texas Cottage Food Law group late last week:

After a roller coaster of a session, the cottage food bill ended up getting attached as an amendment to SB 81 in the 11th hour, and is now sitting on the Governor’s desk awaiting signature. We were so lucky to have Representative Kolkhorst fighting for us. It has been quite the ride. Thank you for your support, we are just praying Perry agrees with it too.

See here for some background. Here’s SB81, and here’s where to see the relevant amendment. SB81 currently awaits action from Governor Perry, so if you want to see him sign it, now would be a good time to contact his office and say so. I just hope that next session the microbreweries and brewpubs have the same good legislative fortune. The Dallas Observer has more, and you can follow Texas Baker’s Bill on Facebook for further updates.

Cottage foods trying again

During the 2009 legislative session, I wrote about a group called Texas Cottage Food Law that seeks to legalize selling food that was made in a residential kitchen. From their website:

In Texas it is currently illegal (click to see law) to run a food establishment from a residential kitchen, even if your product is low-risk baked foods like cakes and cookies.  You cannot be licensed for a home bakery.

A group of dedicated home bakers are trying to change that law.

State Representative Eddie Rodriguez has filed HB 1139, the Cottage Food Production Act!  Please get involved today and call or write your State Representative and State Senator and ask them to support this important bill!

See here and here for more about the current law and what it does not allow. In 2009, HB 3282 by Rep. Dan Gattis was voted unanimously out of committee in the House and picked up a couple of co-authors and a Senate sponsor along the way, but never made it onto the calendar. I believe that if HB 1139 can get to the floor of each chamber it will pass easily, but especially in a session like this overcoming inertia and winning the competition for attention against all the other bills is tough to do. When you get right down to it, this is a bill that would facilitate job creation, which ought to be a no-brainer for legislators to support. If you support it, let your Rep and Senator know. If enough of them know it’s worth their time, it’ll get a shot.

And in a stroke of good timing, here’s a Houston Press cover story about the cottage food movement, written by Robb Walsh. You can see video clips of a couple of people quoted in that story talking about their home-baed food businesses here. This kind of publicity, plus the reactions from legislators and Ag Commish Todd Staples in the story, all bode well for the cottage foodies’ chances.

Cottage foods update

A month ago, I wrote about a website called Texas Cottage Food Law, which is working to pass a bill that would allow folks who bake bread and cakes and whatnot to sell their wares from their homes. I’m pleased to report that they’re making some progress in their quest.

For the past four-and-a-half weeks HB 3282 has been held up in the Public Health Committee. The bill was voted out of the Public Health Committee by a unanimous vote of 9-0 around 6:30 p.m. on April 28. A report is now being prepared to be sent to the Calendars Committee to await placement for floor debate and vote. This alone could take up to a week.

“If no actions are taken by May 11 the bill dies,” Magnolia area home-school student and cake enthusiast Emily Doty said. “I am so passionate about the passing of this bill because my grandma baked for years and it is something I would like to have the option to do later.”

Doty said that the bill has a lot of public support. Rep. Dan Gattis discussed his bill allowing for the production of baked goods in an individual’s home before the Committee on Public Health, on March 27.

He introduced the Cottage Food Production Act after being contacted by a constituent who wanted to see a change in the law.

Cake Boss Kelley Masters of CakeCentral.com wrote the representative seeking assistance so individuals such as herself could legally sell baked goods made in their homes. In addition to hearing from Masters, Gattis received numerous calls and a signed petition from more than 2,000 Texans supporting such legislation, according to a Texas House of Representatives press release.

“The Cottage Food Production Bill is about encouraging entrepreneurship among individuals who want to legally sell their baked goods,” Gattis said. “A number of successful businesses began in people’s homes, from Microsoft and Dell, to Paula Dean and Tiff’s Treats. This bill provides a starting place for bakers in Texas to earn some additional income and opens the doors for additional successful businesses in the future.”

Reps. Allen Vaught and Debbie Riddle are now co-authors of HB3282, and according to Masters, who sent me the link to this article, Sen. Steve Ogden has agreed to sponsor it if it reaches the Senate. It’s all up to the Calendars committee now, so contact its membership if you want to see this move forward.

Cottage foods

As you know, I’ve touted the Handmade Toy Alliance, of which my cousin Jill is a member, on behalf of folks who run small home-based businesses making toys, crafts, clothes, and the like. Via a Facebook message from an old friend and college classmate, Kathy Gregoire, I learn there’s a related movement here in Texas called Texas Cottage Food Law. From their website:

With the economy in its current state, you may have been thinking of starting a little cake or cookie business from your home to help make ends meet.

But in Texas it is currently illegal to sell any food that was made in a residential kitchen. You cannot be licensed for a home bakery.

A group of dedicated cake artists are trying to change that law.

Representative Dan Gattis has filed a bill which would make it legal to sell non-potentially hazardous foods prepared in residential kitchens. It is House Bill 3282. This bill is currently before the Public Health Committee.

The Public Hearing was Tuesday, March 24. Watch a broadcast of it here.

The main points of the bill are summarized here. Basically, this would allow folks to register with the Department of Health to sell “non-potentially hazardous homemade foods” – mostly baked goods like cake, brownies, cookies, and bread – directly to consumers; no retail or commercial sales. This strikes me as a perfectly reasonable thing to ask for, so I support this effort. There’s a petition you can sign, though if you really want to have an effect, you should call your State Rep, as the Texas Cottage Food Law site recommends. Bills like this often get lost in the shuffle – in a session like this, where we’re just now getting around to voting on some things, that’s even more so – but there’s nothing like feedback from constituents to get a representative on board.