The growth of home-based food services has created an equally intense interest from governments looking to balance the value of supporting local small businesses with the protection of the public through food safety regulations. They are especially interested in the preparation of potentially hazardous foods.
The end result has been a patchwork of laws on a state-by-state and local government basis that govern what kinds of food, and how food prepared from home, can be prepared in a safe and acceptable manner for sale elsewhere.
In order to bridge that gap between cooking in someone’s home versus cooking in your own home and delivering the food, some states and cities have modified their food safety laws by introducing a variety of “cottage food laws” to permit some commercial production of non-potentially hazardous foods from a home kitchen to be delivered and/or sold outside the home.
Why is this important? The FDA Food Code itself defines that in its preamble:
“Foodborne illness in the United States is a major cause of personal distress, preventable illness and death, and avoidable economic burden. Scallan et al. (2011a,b) estimated that foodborne diseases cause approximately 48 million illnesses, 128,000 hospitalizations, and 3,000 deaths in the United States each year. The occurrence of approximately 1,000 reported disease outbreaks (local, regional, and national) each year highlights the challenges of preventing these infections.
Most foodborne illnesses occur in persons who are not part of recognized outbreaks. For many victims, foodborne illness results only in discomfort or lost time from the job. For some, especially preschool age children, older adults in health care facilities, and those with impaired immune systems, foodborne illness is more serious and may be life threatening.
The annual cost of foodborne illness in terms of pain and suffering, reduced productivity, and medical costs are estimated to be $10 – $83 billion.”
Because the Food Code does not allow for home-based commercial cooking, these new Cottage Food Laws have been passed to address the question of where food can be prepared and consumed and how. The common concern, however, remains the safety of the public by forbidding the preparation of potentially hazardous foods in the home for delivery and consumption elsewhere.
It is important to understand that what can be prepared inside ones home for sale outside has many limitations. Most of the laws limit the types of cottage food products allowed; where cottage food products can be sold; require registration, licenses, and/or permits; place limits on total sales; and require labeling.
That begs the question, “What is a potentially hazardous food?” Short of reading through all of the science and defining language in the Food Code, the most simplistic definition is any food or preparation that can enable pathogenic microorganism growth or toxin formation.
We can define what IS permitted and even then the laws are not consistent. However, in reviewing many of the laws some common themes do emerge:
- Baked goods without cream, custard, or meat fillings, such as breads, biscuits, churros, cookies, pastries, and tortillas.
- Candy, such as brittle and toffee.
- Chocolate‐covered nonperishable foods, such as nuts and dried fruit.
- Dried fruit.
- Dried pasta.
- Dry baking mixes.
- Fruit pies, fruit empanadas, and fruit tamales.
- Granola, cereals, and trail mixes.
- Herb blends and dried mole paste.
- Honey and sweet sorghum syrup.
- Jams, jellies, preserves and fruit butter that comply with federal standards for fruit butter.
This list is far from complete and, in some cases, not even clearly defined in many states. However many common themes emerge not so much by what is included in the list, but by what is NOT included in the list. And much like the list, protecting the public means they’re reassured that what they consume is prepared safely when they cannot see nor participate in that preparation.
Research last year by the Harvard Food Law and Policy Clinic developed a fairly comprehensive look at the various laws. This list they developed provides, at least, a broad guide:
|Broad List of Allowed Foods||e.g., “non‐potentially hazardous foods, including…” or “non‐ potentially hazardous foods” generally||Alabama, Alaska, Arizona, California, Delaware, Florida, Georgia, Iowa, Massachusetts, Michigan, Mississippi, Missouri, Nebraska, New Hampshire, New Mexico, New York, North Carolina, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Washington, Wyoming|
|Limited List of Allowed Foods||e.g., “non‐potentially hazardous foods, limited to…”||Arkansas, Colorado, Illinois, Montana, Nevada, New Hampshire, Ohio|
|Other (More Restrictive)||e.g., no home canned goods made using pressure cooker, primary ingredients must be grown by microprocessor, pickled products only||Indiana, Kentucky, Louisiana, Maine, Maryland, Minnesota, Oregon, Vermont, Wisconsin|
Consumer should be able to assume that the foods being served were prepared under sanitary conditions in accordance with basic food safety governance and practices in the chef’s home kitchen. Selling homemade foods along with items prepared in a client’s home gives the customer the perception that basic food safety practices were followed in preparation of all of the prepared foods not just those prepared in the client’s home.
People don’t set out to prepare meals for their clients with the intention of making them sick. However there are many idiosyncrasies in preparing and transporting meals.
Preparing meals in a client’s home insures that time/temperature safety practices are followed and risks of cross contamination are eliminated. For example, a client may tell you about their various food allergies but they may not tell you that they have a serious allergy to cat dander that, unintentionally, may end up in the food if you have cats in your own home. The client doesn’t have cats and doesn’t presume that you would either.
Then there’s one of the riskiest parts of the process: moving the food.
Transporting adds time to holding food. The FDA Food Coderequires that all hot foods be maintained at 135 °F or above and that all cold foods are maintained at 41 °F to minimize opportunities for bacterial growth. Equipment and processes must be in place so that proper temperatures are maintained and there is no cross contamination. I suspect most chef’s cars don’t have the necessary heating and cooling equipment installed. Leaving a cooler of food with chill packs provide a whole different set of concerns including when will the food be retrieved; will the client immediately refrigerate it; stray animal activity, etc.
So what is a chef to do?
First understand the laws. Visit the site http://forrager.com/laws/. It’s a privately run site but fairly comprehensive. If that site doesn’t provide enough detail most state and local health departments post their laws and regulations.
Second, err on the side of caution. If a consumer wants ready-to-eat food and a chef fears it will run afoul of regulations then help educate consumers on the importance of safe food practices. Most people understand “food poisoning” but they don’t understand how professionals work hard to prevent it. Teaching them is a great opportunity to be their trusted advisor.
And if you still have the urge to bake that cake I’ll be happy to send you our office address.