ßÏÀÖÔ°

Date posted: Monday, August 17, 2020
Blog poster: Doug Farquhar, JD

Cottage food laws permit the sale of small production foods without the burdens of fully licensed retail foods. Food freedom laws seek to eliminate those minimal restrictions and provide consumers direct access to unlicensed, homemade foods. Food freedom laws let food producers sell almost any homemade food, including canned, pickled, and refrigerated goods, aside from those that contain meat, without any cap on sales or any licensing, permitting, or inspection requirements.

State cottage food laws limit sales by the type of food products sold, the locations of sale, and the amount of revenue that a cottage food production can make to receive the protections of the law. A cottage food operation that is not licensed, regulated, or inspected means there is no oversight by a federal, state, or local regulatory agency to ensure that sanitary conditions meet safety guidelines at the point of production or point-of-sale. There is no oversight to ensure ingredients are obtained from an approved source or that good manufacturing practices, processing controls, or public health interventions are implemented to mitigate risk factors that are known to cause or contribute to injury or foodborne illness outbreaks. Often these products must be labeled to ensure the consumer knows the food has not been subject to state or local food safety requirements.

Conversely, food freedom laws provide broad exemptions from state and local oversight when selling directly to consumers. They exempt the producer from food safety licensing, permitting, certification, packaging, or labeling regulations.

Four states have laws that can be considered food freedom acts: Maine, North Dakota, Utah, and Wyoming. Utah and Wyoming are the most far-reaching, whereas Maine and North Dakota provide broad exemptions from food safety oversight.

These laws have led to an expansion of private food sales. Wyoming farmers markets have grown by 70% since the Food Freedom Act took effect in 2015, according to the U.S. Department of Agriculture (USDA). In North Dakota, the North Dakota Farmers Market and Growers Association estimates there are around 600 vendors at farmers markets, the majority of whom operate under the state's food freedom law.

Food safety regulators still have some oversight. Each of these laws explicitly ensures regulators have the power to investigate any complaints of a foodborne illness. The state health departments in North Dakota, Utah, and Wyoming all confirmed that there has not been a single outbreak of foodborne illness linked to a business operating under their states' food freedom laws. And although the Centers for Disease Control and Prevention predicts that 1 in 6 Americans will become sick from contaminated foods or beverages each year and 3,000 will die, this claim is based on data collected before the advent of these four food freedom laws.

Wyoming's Food Freedom Act

The nation's first food freedom law, law exempts producers of "any product which may be consumed as food or drink" from all licensing, permitting, certification, packaging, or labeling regulations for foods sold to an "informed" consumer. Sales may occur at farmers markets or through the sale out of the producer's ranch, farm, or home.

The law does not differentiate between high-risk versus low-risk products. Most products may be sold without licensing regardless of their potential hazards, including animal products.

Any food is allowed to be sold directly to consumers under the Wyoming's Food Freedom Act except for some meats, poultry, and fish (rabbits and fish were included in the law in a 2017 amended bill). Sales must be made directly to an informed end consumer (i.e., "a person who is the last person to purchase any product, who does not resell the product and who has been informed that the product is not licensed, regulated or inspected") at farmers markets, farms, ranches, the producer's home or office, or any location in Wyoming where the producer and the informed end consumer agree to do business. Internet sales are allowed so long as the food is delivered within the state and not in violation of Food and Drug Administration interstate commerce rules.

All foods sold under the Food Freedom Act must be for home consumption only. No labeling is required; however, end consumers must be informed that the product is not licensed, regulated, or inspected.

Maine's Local Control Regarding Food Systems Act

The legislature in Maine sought to include food freedom into the state's constitution by enacting the Maine Constitutional Right to Food Amendment. The bill did not have the necessary votes to place it on the November 2020 ballot as a . It will, however, be carried over to the next legislative special session.

The ballot measure seeks to add language to the stating that individuals have a "natural, inherent, and unalienable right to food, including the right to save and exchange seeds and the right to grow, raise, harvest, produce, and consume the food of their own choosing for their own nourishment, sustenance, bodily health, and well-being, as long as an individual does not commit trespassing, theft, poaching, or other abuses of private property rights, public lands, or natural resources in the harvesting, production, or acquisition of food."

The state did enacted legislation in 2017, "An Act to Recognize Local Control Regarding Food Systems," that took a slightly different tactic. The law prohibits the state from imposing its food safety standards on cities and towns that develop their own food safety ordinances for any food producers engaged in direct-to-consumer sales at the point of production within the city or town. Because these local ordinances could allow the direct sale of uninspected meats, which is not allowed under federal law, USDA reacted to this legislation with a letter threatening to strip the state of its meat inspection authority, citing concerns that the legislation would cause violations of USDA's slaughterhouse regulations. To appease the federal government, the state amended the legislation to require city and town ordinances related to meat and poultry product inspection and licensing to comply with state and federal food safety laws and regulations. The general law allowing local governments to broadly exempt food producers from food safety regulations, however, remained in effect.

North Dakota's Local Control Regarding Food Systems

The North Dakota legislature followed Wyoming's lead in enacting a food freedom law in 2017. Its law removes all licensing, permitting, certification, packaging, or labeling regulations for foods sold to an informed consumer; however, not as many food products fall under the law. Unlike Wyoming's law, North Dakota limits the sale of high-risk foods and foods may not be sold in any licensed food service establishment, food processing plant, or retail food store.

The state's department of health, in promulgating regulations in response to the bill, identifies and limits the sale of high-risk foods not covered by the law, essentially potentially hazardous foods and foods capable of supporting the growth of disease-causing microorganisms or toxins. Low-acid drinks or products requiring special processing or time and temperature control cannot be sold under the North Dakota law, which includes all meat products (except poultry), milk or dairy products, fresh fruits and vegetables that are not acidified, juices made from fresh fruits and vegetables, and raw sprouts.

Cottage food operators are required to display a sign or placard at the point-of-sale or on a product label, using a font size that is prominent, conspicuous, and easy to read and states the following: "This product is made in a kitchen that is not inspected by the state or local health department." Poultry products must include a label: "Poultry products do not come from a government-approved source."

Utah's Food Freedom Law

Utah has two laws that allow for the sale of homemade food directly to consumers. The (aka, the Food Freedom Law) became law in 2018. Utah also has a cottage food law that allows sales at more venues.

Like the North Dakota law, Utah's food freedom law follows the law in Wyoming but does have more restrictions. Utah residents can only sell from homes, at special farmers markets, and other locations agreed upon by the producer and consumer. Sales at festivals, events, and roadside stands are not allowed, nor are sales at regular farmers markets unless it has a separate section for homemade food vendors. Direct-to-sale farmers markets are allowed, which are markets that have only homemade food vendors.

The law states that a producer taking advantage of the food freedom law can only sell at "a farm, ranch, direct-to-sale farmers market, home, office, or any location agreed upon by both a producer and the informed final consumer."

Food producers can sell almost any type of food, excluding raw milk, meats, and a few other items. The law exempts producers from any kind of licensing or government oversight, aside from obtaining a general business license as required in some areas. The kitchens and production methods do not need to receive an inspection prior to operating, there is no sales limit, and the labeling requirements are very minimal.

Food producers may still use the 2007 cottage food law that allows them to sell at events, retail stores, and roadside stands. Under that law, operations must be inspected and register with the state's Department of Agriculture and Food before operating a cottage food business. The operator must also hold a valid food handler permit, which requires state-approved training.

Next to Wyoming's law, Utah has the most permissive food laws in the country.

For more information, refer to:

• 2015 Wyo. Sess. Laws 348; Wyo. Stat. Ann. A?§ 11-49-101 to -103 (Food Freedom).
• 2017 Me. S.P. 605; Me. Rev. Stat. Ann. tit. 7, A?§A?§ 281"“286 (2017).
• 2017 N.D. Laws 829; 7 N.D. Cent. Code A?§ 23-09.5 (2017).
• 2017 Wyo. Sess. Laws 267; Wyo. Stat. Ann. A?§ 11-49-101 to -103 (2018).
• 2018 Utah House Bill 181 (Sess. 2018); Utah Code Ann. A?§A?§ 4-5-501, 4-5a-102 to 104; Utah Admin. Code r. A?§ 70-560.
• 2020 Me. LD 795; House Bill 583 |
• CDC's Role in Food Safety |
• N.D. Health Dept. Div. of Food and Lodging, Cottage Foods Memo and Interim Guidance/FAQs (Aug. 1, 2017) |

About the blog poster: Doug Farquhar is the Director of Government Affairs at the ßÏÀÖÔ° in Denver, Colorado.