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(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.
(5)Advertising media of cottage food products for
health, disease, or other claims must be consistent with those claims
allowed by the Code of Federal Regulations Title 21, Part 101, Subparts
D, E, and F.
(e)Certain sales by cottage food production operations
prohibited or restricted.
(1)An operator may not sell any of the foods described
in this section at wholesale.
(2)An operator may sell a food described in this section
in this state through the internet or by mail-order only if:
(A)the consumer purchases the food through the internet
or by mail-order from the operator and the operator personally delivers
the food to the consumer; and
(B)subject to paragraph (3) of this subsection, before
the operator accepts payment for the food, the operator provides all
labeling information required by subsection (d) of this section to
the consumer by:
(i)posting a legible statement on the cottage food
production operation's internet website;
(ii)publishing the information in a catalog; or
(iii)otherwise communicating the information to the
consumer.
(3)The operator that sells a food described by subsection
(b)(3)(A) of this section in this state in the manner described by
paragraph (2) of this subsection:
(A)is not required to include the address of the cottage
food production operation in the labeling information required under
subsection (d)(1)(A) of this section before the operator accepts payment
for the food; and
(B)shall provide the address of the cottage food production
operation on the label of the food in the manner required by subsection
(d)(1)(A) of this section after the operator accepts payment for the
food.
(f)Requirements for sale of certain cottage food products.
(1)An operator that sells to consumers pickled fruit
or vegetables, fermented vegetable products, or plant-based acidified
canned goods shall:
(A)use a recipe that:
(i)is from a source approved by the department under
paragraph (4) of this subsection;
(ii)has been tested by an appropriately certified
laboratory that confirmed the finished fruit or vegetable product
or plant-based acidified canned good has an equilibrium pH value of
4.6 or less; or
(iii)is approved by a qualified process authority;
or
(B)if the operation does not use a recipe described
by subparagraph (A) of this paragraph, test each batch of the recipe
with a calibrated pH meter to confirm the finished fruit or vegetable
product or plant-based acidified canned good has an equilibrium pH
value of 4.6 or less.
(2)An operator may not sell to consumers pickled fruit
or vegetables, fermented vegetable products, or plant-based acidified
canned goods before the operator complies with paragraph (1) of this
subsection.
(3)For each batch of pickled fruit or vegetables,
fermented vegetable products, or plant-based acidified canned goods,
an operator must:
(A)label the batch with a unique number; and
(B)for a period of at least 12 months, keep a record
that includes:
(i)the batch number;
(ii)the recipe used by the producer;
(iii)the source of the recipe or testing results,
as applicable; and
(iv)the date the batch was prepared.
(4)The department shall:
(A)approve sources for recipes that an operator may
use to produce pickled fruit or vegetables, fermented vegetable products,
or plant-based acidified canned goods; and
(B)semiannually post on the department's internet
website a list of the approved sources for recipes, appropriately
certified laboratories, and qualified process authorities.
(5)This subsection does not apply to a pickled cucumber
preserved in vinegar, brine, or similar solution.
(g)Requirements for the sale of frozen raw and uncut
fruit or vegetables. An operator that sells to consumers frozen raw
and uncut fruit or vegetables shall:
(1)store and deliver the frozen raw and uncut fruit
or vegetables at an air temperature of not more than 32 degrees Fahrenheit;
and
(2)label the frozen raw and uncut fruit or vegetables
in accordance with subsection (d)(4) of this section.
(h)A cottage food production operation is not exempt
from meeting the application of Texas 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.
(i)Prohibition for Cottage Food Production Operations.
A cottage food production operation may not sell TCS foods to customers.
(j)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 Texas 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 adoption and found it to be a valid exercise of the
agency's legal authority.
Filed with the Office
of the Secretary of State on September 19, 2022
TRD-202203790 Cynthia Hernandez
General Counsel
Department of State Health Services
Effective date: October 9, 2022
Proposal publication date: June 10, 2022
For further information, please call: (512) 834-6753
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