(a)(No change.)
(b)Definitions. The following words and terms when
used in this subchapter shall have the following meanings unless the
context clearly indicates otherwise.
(1)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.
[A baked good does not include a potentially hazardous food (time/temperature
control for safety foods).]
(2)Cottage food production operation--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 potentially
hazardous food, as defined in paragraph (11) of this subsection; [
,]
(ii)candy;
(iii)coated and uncoated
nuts;
(iv)unroasted nut butters;
(v)fruit butters;
(vi)a canned jam or jelly; [,
or]
(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)pickles, as defined
in paragraph (10) of this subsection;
(xiv)mustard;
(xv)roasted coffee or
dry tea; or
(xvi)a dried herb or dried herb
mix [for sale at the person's home];
(B)has an annual gross income of $50,000 or less from
the sale of food described by subparagraph (A) of this paragraph;
[and]
(C)sells foods produced under subparagraph (A) of
this paragraph only directly to consumers at the individual's
home; a farmers' market; a farm stand; a municipal, fair, festival,
or event; a county fair, festival, or event; or a nonprofit fair,
festival, or event; and[.]
(D)delivers products to
the consumer at the point of sale or another location designated by
the consumer.
(3) - (4)(No change.)
(5)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 (2) of this subsection.
(6)Farmers' market--A
designated location used primarily for the distribution and sale directly
to consumers of food by farmers or other producers.
(7)[(5)] Food establishment--
(A)Food establishment means an operation that stores,
prepares, packages, serves, vends, or otherwise provides food for
human consumption:
(i)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 location; conveyance used to transport people; institution;
or food bank; and
(ii)that 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; where consumption is
on or off the premises; and 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 potentially hazardous (time/temperature control for safety)
foods;
(ii)a produce stand that only offers whole, uncut
fresh fruits and vegetables;
(iii)a food processing plant including those that
are located on the premises of a food establishment;
(iv)a kitchen in a private home if only food that
is not potentially hazardous (time/temperature control for safety)
food is prepared for sale or service at a function such as a religious
or charitable organization's bake sale if allowed by law;
(v)an area where food that is prepared as specified
in clause (iv) of this subparagraph is sold or offered for human consumption;
(vi)a Bed and Breakfast Limited establishment as defined
in §229.162 of this title (relating to Definitions) concerning
food establishments;
(vii)a private home that receives catered or home-delivered
food; or
(viii)a cottage food production operation.
(8)[(6)] Herbs--Herbs are from
the leafy green parts of a plant (either fresh or dried) used for
culinary purposes and not for medicinal uses.
(9)[(7)] Home--A primary residence
that contains a kitchen and appliances designed for common residential
usage.
(10)Pickle--A cucumber
preserved in vinegar, brine, or similar solution, and excluding all
other pickled vegetables.
(11)Potentially hazardous
food (PHF)--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 potentially hazardous 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 potentially hazardous food
as ingredients if the final food product does not require time or
temperature control for safety to limit pathogen growth or toxin production.
[(8)Potentially hazardous
food (PHF) (time/temperature control for safety food (TCS))--]
[(A)Potentially hazardous food (time/temperature
control for safety food) means a food that requires time/temperature
control for safety to limit pathogenic microorganism growth or toxin
formation.]
[(B)Potentially hazardous food (time/temperature
control for safety food) includes:]
[(i)an animal food that is raw or heat-treated;
a plant food that is heat-treated or consists of raw seed sprouts,
cut melons, cut leafy greens, cut tomatoes or mixtures of cut tomatoes
that are not modified in a way so that they are unable to support
pathogenic microorganism growth or toxin formation, or garlic-in-oil
mixtures that are not modified in a way so that they are unable to
support pathogenic microorganism growth or toxin formation; and]
[(ii)except as specified in subparagraph
(C)(iv) of this paragraph, a food that because of the interaction
of it's aw and pH values is designated
as Product Assessment required (PA) in Table A or B of this clause.]
[(I)Table A. Interaction of pH and aw for control of spores in food heat-treated
to destroy vegetative cells and subsequently packaged.]
[Figure: 25 TAC §229.661(b)(8)(B)(ii)(I)]
[(II)Table B. Interaction of pH and aw for control of vegetative cells and spores
in food not heat-treated or heat-treated but not packaged.]
[Figure: 25 TAC §229.661(b)(8)(B)(ii)(II)]
[(C)Potentially hazardous food (time/temperature
control for safety food) does not include:]
[(i)an air-cooled hard-boiled egg with
shell intact, or an egg with shell intact that is not hard-boiled,
but has been pasteurized to destroy all viable salmonellae;]
[(ii)a food in an unopened hermetically
sealed container that is commercially processed to achieve and maintain
commercial sterility under conditions of non-refrigerated storage
and distribution;]
[(iii)a food that because of its pH or
aw value, or interaction of aw and pH values, is designated as a non-PHF/non-TCS
food in Table A or B in subparagraph (B)(ii)(I) and (II) of this paragraph;]
[(iv)a food that is designated as PA in
Table A or B in subparagraph (B)(ii)(I) and (II) of this paragraph
and has undergone a Product Assessment showing that the growth or
toxin formation of pathogenic microorganisms that are reasonably likely
to occur in that food is precluded due to:]
[(I)intrinsic factors including added or
natural characteristics of the food such as preservatives, antimicrobials,
humectants, acidulants, or nutrients;]
[(II)extrinsic factors including environmental
or operational factors that affect the food such as packaging, modified
atmosphere such as reduced oxygen packaging, shelf life and use, or
temperature range of storage and use; or]
[(III)a combination of intrinsic and extrinsic
factors; or]
[(v)a food that does not support the growth
or toxin formation of pathogenic microorganisms in accordance with
one of the clauses (i) - (iv) of this subparagraph even though the
food may contain a pathogenic microorganism or chemical or physical
contaminant at a level sufficient to cause illness or injury.]
(c)(No change.)
(d)Packaging and labeling [Labeling]
requirements for cottage food production operations. All foods prepared
by a cottage food production operation shall [must]
be packaged and labeled in a manner that prevents
product contamination.
(1) - (2)(No change.)
(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.
(e)Certain sales [Sales] by
cottage food production operations [through Internet] prohibited.
A cottage food production operation may not sell any of the foods
described in this section [these rules] through
the Internet , by mail order, or at wholesale. No health
claims may be made on any of the advertising media [medium
] of the finished products because they are conventional foods.
(f)A cottage food production
operation is not exempt from meeting the application of Health and
Safety Code, §431.045, Emergency Order; §431.0495, Recall
Orders; and §431.247, Delegation of Powers or Duties. The department
or local health authority may act to prevent an immediate and serious
threat to human life or health.
(g)Prohibition for Cottage
Food Production Operations. A cottage food production operation may
not sell potentially hazardous foods to customers.
(h)Production of Cottage
Food Products - Basic Food Safety Education or Training Requirements.
(1)An individual who operates a cottage
food production operation must have successfully completed a basic
food safety education or training program for food handlers accredited
under Health and Safety Code, Chapter 438, Subchapter D.
(2)An individual may not process, prepare,
package, or handle cottage food products unless the individual:
(A)meets the requirements of paragraph
(1) of this subsection;
(B)is directly supervised by an individual
described by paragraph (1) of this subsection; or
(C)is a member of the household in which
the cottage food products are produced.
The agency certifies that legal counsel
has reviewed the proposal and found it to be within the state agency's
legal authority to adopt.
Filed with the Office
of the Secretary of State on January 27, 2014
TRD-201400299 Lisa Hernandez
General Counsel
Department of State Health Services
Earliest possible date of adoption: March 9, 2014
For further information, please call: (512) 776-6972
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