Shut the Front Door: Proposed Rules Threaten Cottage Food Operators

Back in November, we told you about local home bakers whose small businesses got a boost from Senate Bill 81, which allows them to make and sell their cakes and pies unregulated.

Sadly, the story doesn't end there. Mandated by language in the law to devise a set of rules to regulate cottage foods operations, the Texas Department of State Health Services drafted a set of rules that set home bakers on red alert.

The labeling rules are as such:

d) Labeling Requirements for Cottage Food Production Operations. 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 shall comply with the Food Allergen Labeling and Consumer Protection Act of 2004 (FALCPA);
(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.

While a simple list of ingredients would not be that objectionable, what really curdles bakers' buttercream is that these labeling rules do not suggest a level playing field between what you might pick up from your local corner bakery and from your local home baker. The logical equivalence would be a fresh cupcake to a fresh cupcake. Last time we checked, a cupcake from Quack's or Sugar Mama's doesn't come with a long label with the kind of exhaustive information required of home bakers.

DSHS Assistant Press Officer Chris Van Deusen explains that the home bakers would be held to the same labeling requirements as prepackaged baked goods at a bakery or grocery store, and that this is "simply an issue of the consumer having all of the information." What the authors of these rules have failed to take into account is the law's requirement that the consumer and the cottage foods operator must meet at the seller's home, where issues such as ingredients and allergens would presumably be discussed before money changed hands.

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.

When asked who was behind these proposed rules, Van Deusen stated that agency employees with expertise in food establishments had drafted them, working from similar cottage food labeling rules in other states and denied any external influence peddling. Later, he wrote in an email that "We usually look at big states and consulted Florida, Michigan and Ohio in this case. The labeling requirements are very similar to the requirements in those states."

"They picked the states with the strictest labeling requirements," says Kelley Masters, which suggests a fair amount of cherrypicking on DSHS' part in drafting the rules, especially considering the fact that, to the best of anyone's knowledge, the agency did not consult with any cottage food operators when drawing up the rules. Masters is encouraging supporters of Texas' cottage food operators to write to DSHS, as well as to contact their state representatives in hopes that they can once again effect change for small business operators. Says Van Deusen, "It is a draft process at this point, and the rules can be modified and changed through that process."

Interested parties wishing to comment on these proposed rules should write 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 comment period ends on Feb. 26.