The Executive Commissioner of the Health and Human Services Commission (commission), on behalf of the Department of State Health Services (department), adopts an amendment to §229.661, concerning the regulation of cottage food production operations. The amendment to §229.661 is adopted without changes to the proposed text as published in the February 7, 2014, issue of the Texas Register (39 TexReg 578) and, therefore, the section will not be republished.

BACKGROUND AND PURPOSE

The amendment to §229.661 implements House Bill (HB) 970, 83rd Legislature, Regular Session, 2013. HB 970 amends Health and Safety Code, Chapter 437 relating to cottage food production operations. HB 970 added and revised definitions, expanded the types of foods that a cottage food production operation may produce, identified locations where cottage foods may be sold, clarified packaging and labeling requirements, prohibited sales by mail or at wholesale, and required a cottage food production operator to complete basic food safety training.

A cottage food production operation is an individual who operates out of the individual's home; produces at the individual's home certain non-potentially hazardous foods; has an annual gross income of $50,000 or less from the sale of foods; sells the foods produced only directly to consumers at the individual's home, a farmers' market, a farm stand, or a municipal, county, or nonprofit fair, festival, or event; and delivers products to the consumer at the point of sale or another location designated by the consumer.

SECTION-BY-SECTION SUMMARY

Section 229.661(b)(1) revises the definition for baked good by deleting the statement, "A baked good does not include a potentially hazardous food..."

Section 229.661(b)(2)(A) revises the definition for cottage food production operation by expanding the foods that may be produced to include candy; coated and uncoated nuts; unroasted nut butters; fruit butters, fruit pie, dehydrated fruit or vegetables, including dried beans; popcorn and popcorn snacks; cereal, including granola; dry mix; vinegar; pickles; mustard; roasted coffee or dry tea; and dried herbs or dried herb mix; and deletes the phrase "for sale at the person's home."

Section 229.661(b)(2)(C) allows cottage food to be sold from an 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.

Section 229.661(b)(2)(D) allows cottage foods to be delivered to the consumer at the point of sale or another location designated by the consumer.

Section 229.661(b)(5) adds a new definition for "farm stand."

Section 229.661(b)(6) adds a new definition for "farmers' market."

Section 229.661(b)(10) adds a new definition for "pickles."

Section 229.661(b)(11) revises the definition for potentially hazardous food with the definition in HB 970.

Section 229.661(d) adds packaging to the labeling requirements to require all cottage foods to be packaged and labeled in a manner that prevents product contamination, except when food is too large or bulky for conventional packaging.

Section 229.661(e) is amended to prohibit the sale of cottage foods by mail and wholesale.

The new §229.661(f) clarifies that 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.

The new §229.661(g) prohibits a cottage food production operation from selling potentially hazardous foods.

The new §229.661(h) requires an individual who operates a cottage food production operation to complete a basic food safety education or training program for food handlers accredited under Health and Safety Code, Chapter 438, Subchapter D.

COMMENTS

The department, on behalf of the commission, has reviewed and prepared responses to the comments received regarding the proposed rule during the comment period, which the commission has reviewed and accepts. The commenter was from the City of Baytown local health department. The commenter was not against the rule in its entirety; however, the commenter wanted to know how the department was going to enforce specific sections of this rule. A public hearing to receive comments on the proposed rule was held at the department on March 3, 2014. No comments were received at the public hearing.

Comment: Concerning §229.661(b)(2)(B), the commenter stated that the requirement for a cottage food production operation that "has an annual gross income of $50,000 or less from the sale of food described by subparagraph (A) of this paragraph" is not enforceable.

Response: The commission agrees that the department and local health authority may not regulate the annual gross income of a cottage food production operation. Health and Safety Code, §437.0192 prohibits the local government authority from regulating the production of food at a cottage food production operation. However, an individual operating a cottage food production operation is required to comply with Health and Safety Code, §437.0192. No change was made to the rule text as a result of this comment.

Comment: Concerning §229.661(e), the commenter stated that the prohibition for certain sales of food through the Internet, by mail order or at wholesale, and the prohibition on making health claims in advertising media is not enforceable.

Response: The commission agrees that the department and local health authority may not regulate the sale of food through the Internet, by mail order or at wholesale. Additionally, the department and local health authority may not regulate health claims made on advertising media of finished products produced by a cottage food production operation. Health and Safety Code, §437.0192, prohibits the local government authority from regulating the production of food at a cottage food production operation. However, an individual operating a cottage food production operation is required to comply with Health and Safety Code, §437.0192. Furthermore, new §229.661(f) clarifies that 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. No change was made to the rule text as a result of this comment.

LEGAL CERTIFICATION

The Department of State Health Services, General Counsel, Lisa Hernandez, certifies that the rule, as adopted, has been reviewed by legal counsel and found to be a valid exercise of the agencies' legal authority.

STATUTORY AUTHORITY

The amendment is authorized under the Health and Safety Code, §437.0193, which provides the Executive Commissioner of the Health and Human Services Commission with authority to adopt rules and guidelines relating to labeling requirements for cottage food production operations; Health and Safety Code, §438.042, which requires the department to adopt standards for accreditation of education and training programs for persons employed in the food service industry; and Government Code, §531.0055(e), and Health and Safety Code, §1001.075, which authorize the Executive Commissioner of the Health and Human Services Commission to adopt rules and policies necessary for the operation and provision of health and human services by the department and for the administration of Health and Safety Code, Chapter 1001.