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RULE §229.661Cottage Food Production Operations

(a) Purpose. The purpose of this section is to implement Texas Health and Safety Code, Chapter 437, related to cottage food production operations, which requires the department to adopt rules for labeling and production of foods by cottage food production operations.

(b) Definitions. The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise.

  (1) Acidified canned goods--Food with a finished equilibrium pH value of 4.6 or less that is thermally processed before being placed in an airtight container.

  (2) Baked good--A food item prepared by baking the item in an oven, which includes cookies, cakes, breads, Danishes, donuts, pastries, pies, and other items that are prepared by baking.

  (3) Cottage food production operation (operator)--An individual, operating out of the individual's home, who:

    (A) produces at the individual's home:

      (i) a baked good that is not a time and temperature control for safety food (TCS food), as defined in paragraph (13) of this subsection;

      (ii) candy;

      (iii) coated and uncoated nuts;

      (iv) unroasted nut butters;

      (v) fruit butters;

      (vi) a canned jam or jelly;

      (vii) a fruit pie;

      (viii) dehydrated fruit or vegetables, including dried beans;

      (ix) popcorn and popcorn snacks;

      (x) cereal, including granola;

      (xi) dry mix;

      (xii) vinegar;

      (xiii) pickled fruit or vegetables, including beets and carrots, that are preserved in vinegar, brine, or a similar solution at an equilibrium pH value of 4.6 or less;

      (xiv) mustard;

      (xv) roasted coffee or dry tea;

      (xvi) a dried herb or dried-herb mix;

      (xvii) plant-based acidified canned goods;

      (xviii) fermented vegetable products, including products that are refrigerated to preserve quality;

      (xix) frozen raw and uncut fruit or vegetables; or

      (xx) any other food that is not a TCS food, as defined in paragraph (13) of this subsection.

    (B) has an annual gross income of $50,000 or less from the sale of food described by subparagraph (A) of this paragraph;

    (C) sells foods produced under subparagraph (A) of this paragraph only directly to consumers; and

    (D) delivers products to the consumer at the point of sale or another location designated by the consumer.

  (4) Department--The Texas Department of State Health Services.

  (5) Executive Commissioner--The Executive Commissioner of the Texas Health and Human Services Commission.

  (6) Farm stand--A premises owned and operated by a producer of agricultural food products at which the producer or other persons may offer for sale produce or foods described in paragraph (3) of this subsection.

  (7) Farmers' market--A designated location used for a recurring event at which a majority of the vendors are farmers or other food producers who sell food directly to consumers. A farmers' market must include at least two vendors who meet the definition of "farmer" defined at §229.702(2) of this title (relating to Definitions) and may include vendors who meet the definition of "food producer" as defined at §229.702(6) of this title. In addition, a farmers' market may include vendors who are not "farmers" or "food producers," provided that "farmers" and "food producers" constitute the majority of vendors who participate in the market throughout the year.

  (8) Fermented vegetable product--A low-acid vegetable food product subjected to the action of certain microorganisms that produce acid during their growth and reduce the pH value of the food to 4.6 or less.

  (9) Food establishment--

    (A) Food establishment is an operation that:

      (i) stores, prepares, packages, serves, or vends food directly to the consumer, or otherwise provides food for human consumption, such as a restaurant, retail food store, satellite or catered feeding location, catering operation if the operation provides food directly to a consumer or to a conveyance used to transport people, market, vending machine location, self-service food market, conveyance used to transport people, institution, or food bank; and

      (ii) relinquishes possession of food to a consumer directly, or indirectly through a delivery service, such as home delivery of grocery orders or restaurant takeout orders, or delivery service that is provided by common carriers.

    (B) Food establishment includes:

      (i) an element of the operation, such as a transportation vehicle or a central preparation facility that supplies a vending location or satellite feeding location, unless the vending or feeding location is permitted by the regulatory authority; and

      (ii) an operation that is conducted in a mobile, stationary, temporary, or permanent facility or location and where consumption is on or off the premises, regardless of whether there is a charge for the food.

    (C) Food establishment does not include:

      (i) an establishment that offers only prepackaged foods that are not TCS foods;

      (ii) a produce stand that only offers whole, uncut fresh fruit and vegetables;

      (iii) a food processing plant, including one that is located on the premises of a food establishment;

      (iv) a cottage food production operation or home kitchen preparing non-TCS food for service at a religious or charitable function;

      (v) a bed and breakfast limited as defined in §228.223 of this title (relating to Bed and Breakfast); or

      (vi) a private home that receives catered or home-delivered food.

  (10) Herbs--The leafy green parts of a plant (either fresh or dried) used for culinary purposes and not for medicinal uses.

  (11) Home--A primary residence that contains a kitchen and appliances designed for common residential usage.

  (12) Process authority--A person who has expert knowledge acquired through appropriate training and experience in the pickling, fermenting, or acidification and processing of pickled, fermented, or acidified foods.

  (13) Time and temperature control for safety food (TCS food)--A food that requires time and temperature control for safety to limit pathogen growth or toxin production. The term includes a food that must be held under proper temperature controls, such as refrigeration, to prevent the growth of bacteria that may cause human illness. A TCS food may include a food that contains protein and moisture and is neutral or slightly acidic, such as meat, poultry, fish, and shellfish products, pasteurized and unpasteurized milk and dairy products, raw seed sprouts, baked goods that require refrigeration, including cream or custard pies or cakes, and ice products. The term does not include a food that uses TCS food as ingredients if the final food product does not require time or temperature control for safety to limit pathogen growth or toxin production.

(c) Complaints. The department shall maintain a record of a complaint made by a person against an operator.

(d) Packaging and labeling requirements for cottage food production operations. All foods prepared by an operator shall be packaged and labeled in a manner that prevents product contamination.

  (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;

    (C) disclosure of any major food allergens, such as eggs, nuts, soy, peanuts, milk, wheat, fish, or shellfish used in the product; and

    (D) the following statement: "This food is made in a home kitchen and is not inspected by the Texas Department of State Health Services or a local health department."

  (2) Labels must be legible.

  (3) A food item is not required to be packaged if it is too large or bulky for conventional packaging. For these food items, the information required under paragraph (1) of this subsection shall be provided to the consumer on an invoice or receipt.

  (4) A label for frozen raw and uncut fruit or vegetables must include the following statement in at least 12-point font when sold: "SAFE HANDLING INSTRUCTIONS: To prevent illness from bacteria, keep this food frozen until preparing for consumption" on the label or on an invoice or receipt provided with the frozen fruit or vegetables.


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