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Texas' Cottage Food Law Passed, But That Won't Stop the State from Changing It

During the last state legislative session, the Cottage Food Law was passed, clearing the way for home bakers to sell certain goods from their home. Guidelines were established, including limiting annual gross sales to less than $50,000, requiring in-person transactions and limiting sales to non-potentially hazardous foods.

And boy did Texas bakers unite and fight hard to pass this bill. Don't let the floral, lace-trimmed apron fool you. Bakers are a scrappy crew.

So, cakes and pies have been pleasantly exchanged since September 1, when the law went into affect, adding a little money to the pocketbooks of many families.

Now, however, the Texas Department of State Health Services (DSHS) is proposing a new rules that specifically address the labeling aspect of this law. The original text in Senate Bill 81 required bakers to label packaging with their name, address and a statement that the product was baked in a home kitchen that was not inspected by a health department.

The proposed new rules by the DSHS requires more specific information be added to labels.

For example, every ingredient must be listed by weight in descending order, including food coloring and preservatives. They also pulled from FDA guidelines that "allergen labeling in compliance with the Food Allergen Labeling and Consumer Protection Act of 2004" must be added. The rules would also require the net weight of all products be listed on a separate label. Guidelines for the type of ink, font and size are also listed.

Kelley Masters, who was instrumental in the passage of SB 81, is following the issue closely.

"They (the DSHS) are apparently intoxicated with their rulemaking authority," said Masters, "and have now come up with this set of proposed rules, scheduled to be published in the Texas Register for the 30-day public comment period on this coming Friday, January 27."

Part of Masters' complaint with the proposed rules is that retail bakeries and restaurants don't have to follow similar rules.

"Food establishments are not required to label their food. When was the last time you bought a cake pop at Starbucks and it came with a label? It doesn't," Masters says. "The point of the Cottage Food Law was to ease requirements for home producers. What exactly would the public health benefit be of weighing a wedding cake (metric and imperial) when the bakery down the road doesn't have to?"

State Rep. Lois W. Kolkhorst (R-Brenham) filed the initial bill.

"The intent of my legislation was clear," Kolkhorst says. "The Texas Legislature sought to clarify that Texans who wish to sell baked goods from their home have a reasonable and legal pathway to do so. For a state agency to now try to go in the opposite direction, to create new burdens on small businesses, would be a shining example of government overreach."

A spokesman for the DSHS sees it differently.

"I don't think it's onerous to ask someone to know and list the ingredients of a product they prepared," Chris Van Deusen, assistant press officer at DSHS, writes in an email. "It's a simple way to inform and protect consumers who may have an allergy or some other reason to avoid particular ingredients."

The question remains, though: Is it necessary to require additional work on the seller when both parties involved are aware that the products were made in an uninspected home kitchen?

"These proposed rules are burdensome, unnecessary," Masters said. "And really, if I didn't know better, I would say that they are intended to scare home bakers away from operating a home business."

Rep. Kolkhorst has similar concerns. "The regulations should only go as far as needed without smothering start-ups or throwing up new barriers for small businesses. There's a fine line between the agency protecting public health and going so unreasonably far as to prevent small home businesses from even competing in the marketplace. "

Yesterday, Masters and others expressed their dissatisfaction before the House Committee on Public Health, which Kolkhorst chairs. In the end, Kolkhorst made clear to the DSHS representative at the meeting that she felt they were overreaching their authority and diminishing the integrity of the original law. She requested they rework the rules in council.

For now the ball is in the court of the DSHS. They can either pull the rules or, on this coming Friday, publish them in the Texas Register. From that point there would be a 30-day public comment period, which the home bakers of Texas would come out with guns blazing. The the rules would go to Health and Human Services Commissioner, Tom Suehs, who can either sign into law or not.

It remains to be seen if a law that was debated, compromised, then eventually passed through the Texas legislature by elected officials will essentially get rewritten behind the closed doors of the DSHS.


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