University of Maryland Extension

Food safety laws for processed, “cottage,” or value-added foods

Author: 
Nicole Cook, B.S., J.D., LL.M., Environmental and Agricultural, Faculty Legal Specialist, Agriculture Law Education Initiative (ALEI), University of Maryland Eastern Shore

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There is no comprehensive set of guidelines to determine whether a product is “value-added.” The term, however, generally refers to raw products that have had their value enhanced through some method of production (e.g., popped corn, jam, salsa) or marketing (e.g., gift baskets). If a product is “value-added,” then three major areas of regulation become important:

  1. labeling;
  2. licensing and permits; and
  3. food health and safety.

Because processed and value-added foods can carry a greater risk of contamination or adulteration, they are subject to a number of stringent federal, state and, in some cases, local laws. The Federal Food, Drug and Cosmetic Act (FDCA) gives the FDA authority to regulate processed foods that travel in interstate or foreign commerce (Food, Drug, and Cosmetic Act, 21 U.S.C. §§ 301-392 (2012)).

The FDCA has been amended over the years by various acts (including the Nutrition Labeling and Education Act and the Fair Packaging and Labeling Act) to create the full set of laws by which food producers must abide. First, producers are barred from selling adulterated foods (21 U.S.C. § 342 (2012)). FDA has defined adulterated foods and set out regulatory standards for good manufacturing practices to protect processed foods from adulteration or foodborne illness (21 C.F.R. § 110.5 (2012)).

States are able to create exemptions for small-scale producers that do not sell their products across state lines (products that are limited to intrastate commerce). Second, food producers are prohibited from selling misbranded food and must satisfy certain requirements for labeling of food packages (21 U.S.C. § 343 (2012)). They are required to utilize uniform labels for foods sold in interstate commerce (Nutrition Education and Labeling Act, 21 U.S.C. § 343-1 (2012)); for example, they must list the item’s basic identity, nutrition, ingredients, and source information on the package label (21 C.F.R. §§ 101.3(a), 101.4, 101.5 (2012)). Additionally, food packages must clearly state the net quantity of contents and must not be deceptively sized (Fair Packaging and Labeling Act, 15 U.S.C. § 1453 (2012)). There are a number of exemptions and modified requirements in these labeling regulations (21 C.F.R. § 101.9(j) (2012)). Remember, the FDCA federal food safety laws for processed foods do not apply to foods that are only sold within the same state (“intrastate”). If you are selling processed food outside of your state, however, you will want to check out the resources listed below for more information about the federal food safety laws.

State food codes or food safety regulations and laws covering processing and selling “cottage” foods or value-added foods are generally more relevant to urban farmers. Cottage food businesses are typically small, in-home food processing entities that prepare only small-scale, non-potentially hazardous foods (i.e., foods that do not support pathogenic microorganism growth or toxin formation). FDA 2009 Food Code 1-201.10. Meat, dairy, and shellfish are all examples of potentially hazardous foods. Less obvious foods, however, such as low-sugar jams, cooked vegetables, and low-acidity pickles and salsa are also considered potentially hazardous because they can support viral or bacterial growth if not properly stored. In effect, if the food has the potential to cause harm to consumers when not kept under proper temperature and storage conditions, the food is considered “potentially hazardous.”

Most states have carved out exemptions in their food safety laws allowing for the intrastate sale of non-potentially hazardous foods processed in home kitchens, either without obtaining a permit or at least without undergoing traditional permitting requirements. In other states, farmers selling value-added foods will have to comply with state and/or local licensing or permitting requirements.

The State of Maryland has adopted many of the federal regulations into state law. In order to sell value-added products at a farmers’ market in Maryland, farmers are also required to obtain a “Producer Mobile Farmer’s Market License.” The license is required to sell all products covered by the state’s “On-Farm Home Processing License” as well as meat and poultry certified by the Maryland Department of Agriculture. It is not necessary to obtain a Producer Mobile Farmer’s Market License to sell eggs, non-processed fresh fruits and vegetables, non-potentially hazardous baked goods, and non-potentially hazardous jams and jellies. The City of Baltimore has separate licensing and permitting requirements from the state. Farmers selling value-added products are considered a “food service facility” within the city. In order to operate as a food service facility within city limits, producers of value-added products must obtain a license from the Baltimore Commissioner of Health.

For more information on complying with the Maryland Cottage Food Business Law, see the Cottage Food Module by Ginger Myers here: https://go.umd.edu/cottagefood

States also set the food naming and labeling requirements for foods that are sold strictly within their respective state (Fair Packaging and Labeling Act, 15 U.S.C. § 1461 (2012).

Although the naming and labeling requirements may be very similar to the federal rules, it is important to remember that foods sold intrastate are governed by state rules, not federal rules. The labeling requirements in Maryland are typical. They require the name of the product, name and address of the cottage food business, ingredients of the product in descending order of the amount of each ingredient by weight, net weight or net volume of the product, allergen information (as per federal labeling rules), nutritional information that complies with federal rules if a nutritional claim is made, and the statement (printed in 10 point or larger type) made by a cottage food business that is not subject to Maryland’s food safety regulations (MD. HEALTH GEN. § 21-330.1(c)(2) (2012).)

Contact your Extension agents, your state department of agriculture, or your state or local department of public health for information about your state’s food safety and labeling laws.

The costs of complying with federal and/or state and local regulations along with technical barriers and difficulties understanding regulatory obligations can create seemingly insurmountable obstacles to maintaining a successful farming business. Ignoring the laws, however, will not protect you. To reduce your risk of running afoul of food safety laws, you have to be proactive. To stay in business, you are going to have to actively seek information and advice about what the law requires as well as what your customers require, and get help if you do not understand the law or you need technical or financial assistance to bring your farm into compliance.

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