The Executive Commissioner of the Texas Health and Human Services Commission (HHSC), on behalf of the Department of State Health Services (DSHS), adopts an amendment to §229.661, concerning Cottage Food Production Operations. The amendment to §229.661 is adopted with changes to the proposed text as published in the October 18, 2019, issue of the Texas Register (44 TexReg 5993) and will be republished.

BACKGROUND AND JUSTIFICATION

The adopted amendment to §229.661 complies with Senate Bill (S.B.) 572, 86th Legislature, Regular Session, 2019, which amended Texas Health and Safety Code, Chapter 437, relating to Cottage Food Production Operations. The legislation expands and clarifies the list of foods allowable as cottage food products to include frozen raw and uncut fruit or vegetables, pickled fruit or vegetables, fermented vegetable products, plant-based acidified canned foods, and any other food that is not a time and temperature control for safety food. The legislation sets forth specific requirements for cottage foods production of fermented and acidified canned foods and requirements for DSHS to implement procedures for recipe source approval and to maintain lists of laboratories and process authorities on DSHS' website. The legislation expands the methods by which cottage food products may be marketed and sold through the internet and by mail-order.

COMMENTS

The 31-day comment period ended November 18, 2019.

During this period, DSHS received three (two from the same source) comments by email and one comment by telephone regarding the proposed rule from San Angelo-Tom Green County Health Department, Harris County Public Health, and Texas Environmental Health Association. A summary of comments relating to the amended rule and DSHS's responses follows.

Comment: The representative from Harris County Public Health noted an error in rule references to the definition for "time and temperature control for safety foods." The reference should be revised to paragraph (13) instead of paragraph (14).

Response: DSHS agrees and the rule references to paragraph (13) have been revised in §229.661(b)(3)(A)(i) and (b)(3)(A)(xx).

Comment: The representative from Harris County Public Health objected to the change in definition of a "farmers' market" at §229.661(b)(7) for the following reasons: (i) The changed definition no longer matches the definition of "farmers' market" in Texas Health and Safety Code, §437.020(a)(1). (ii) The change in definition conceivably allows any event to be called a "farmers' market," thus changing the way local regulatory agencies must regulate certain activities and hindering them in their mission. (iii) The changed definition essentially removes the special character intended for farmers' markets as an event "primarily" for farmers and their food and wares. This was not the original intent of a farmers' market.

Response: DSHS agrees with (i) and (iii) and revised the rule to the original definition of "farmers' market" as suggested and per Texas Health and Safety Code, §437.020(a)(1).

Comment: The representative from San Angelo-Tom Green County Health Department requested clarification, either in rule or guidance, regarding the meaning of §229.661(b)(3)(C) and (D) regarding where cottage food operators are now allowed to sell their products. For example, are cottage food operators able to occupy "kiosks at the mall" or "mobile trailers?" The commenter does not agree with either scenario and suggests that, if the scenarios are allowed, there will be pushback from permitted establishments.

Response: DSHS disagrees and declines to revise the rule based on this comment. The wording of the passage in question is directly from Texas Health and Safety Code, §437.001(2-b)(C) and (D). S.B. 572 removed the previous restrictions on location of sale from the statute and did not add language to prevent a cottage food operator from selling cottage food products from a kiosk at the mall, from a mobile unit, or from another retail location not prohibited by local zoning ordinances.

Comment: The representative from Texas Environmental Health Association pointed to wording at §229.661(e)(2)(A) that states that the operator must deliver products to the consumer "person-to-person" does not match the wording from Texas Health and Safety Code, §437.0194(b)(1), which states that the operator must "personally deliver" products to the consumer. This potentially changes the meaning and the intent of the language in the bill and statute.

Response: DSHS agrees and revises the rule as suggested.

Due to a DSHS staff comment, the name of the subchapter is changed to Cottage Food Production Operations.

STATUTORY AUTHORITY

The amendment is adopted under Texas Health and Safety Code, §437.0056, which provides the Executive Commissioner of HHSC with authority to adopt rules necessary to care out Chapter 437, including rules governing cottage food operations; and Texas Government Code, §531.0055, and Texas Health and Safety Code, §1001.075, which authorize the Executive Commissioner of HHSC to adopt rules and policies necessary for the operation and provision of health and human services by DSHS and for the administration of Texas Health and Safety Code, Chapter 1001.