Texas Laws & Regulations for Selling Food Products From Home

In Texas, cottage food production is defined as an individual who operates out of their home to produce certain types of foods, such as fruit pies and popcorn. The Texas cottage food law took effect September 1, 2013, and amended Health and Safety Code Chapter 437 to regulate these types of businesses.

A cottage food business is not a retail food establishment like a restaurant; it is exempt from the requirements that a restaurant must follow, like getting a permit from the local health department.

The Texas Department of State Health Services, through local health departments, has authority over cottage food operations to prevent an immediate and serious threat to human life or health by issuing an emergency order.

A cottage food production operation is allowed to produce such items as:

• Candy.
• Coated and uncoated nuts.
• Unroasted nut butters.
• Fruit butters.
• Canned jams or jellies.
• Fruit pies.
• Dehydrated fruit or vegetables, including dried beans.
• Popcorn and popcorn snacks.
• Cereal, including granola and dry mix.
• Vinegar, pickled fruit or vegetables, including beets and carrots, that are preserved in vinegar, brine or similar solution at an equilibrium pH value of 4.6 or less.
• Mustard.
• Roasted coffee or dry tea.
• Dried herbs or dried herb mixes.
• Plant-based acidified canned goods, fermented vegetable products, including products that are refrigerated to preserve quality, like salsa, BBQ sauce and ketchup.
• Dried pasta.
  
• Frozen raw and uncut fruit or vegetables.

An acidified canned good is a food with a finished equilibrium pH value of 4.6 or less that is thermally processed before it is placed in an airtight container like a glass jar, such as tomato sauce. A cottage food business may also produce baked goods that are not a time and temperature control for safety (TCS) food.

A TCS food is one that must be kept at a certain temperature to be safe to eat. One example is a soft pie like lemon meringue.

Baked goods that are not TCS foods include cookies, cakes, breads, biscuits, sweet breads, muffins, Danish pastries, donuts, pastries and most pies. Further, a cottage food business may produce any other food that is not a TCS food.

A cottage food business must have an annual gross income of $50,000 or less from the sale of the food. Further, it must sell food produced directly to consumers, not through a restaurant or grocery store.

It must deliver the products to the consumer at the point of sale or to another location designated by the consumer, such as a set of stalls at farmers markets.

Foods that a cottage business operator may not produce include:

• Fresh or dried meat or meat products, including meat jerky.
• Kolaches that contain meat. Kolaches are Czech pastries, made from yeasted dough, which are common in rural Texas. Sweet kolaches made with fruit or poppy seed fillings are OK to produce.
• Fish, seafood or shellfish products, as well as seafood itself.
• Raw seed sprouts.
• Bakery goods that require refrigeration, such as cream, custard or meringue pies and cakes, or pastries that have cream cheese icings or fillings.
• Milk and dairy products including hard, soft and cottage cheeses, and yogurt.
• Cut fresh fruits and/or vegetables.
• Juices made from fresh fruits or vegetables that require refrigeration.
• Ice or ice products like shaved ice.
• Focaccia-style breads with vegetables or cheeses.
• Beverages that require refrigeration to prevent the growth of pathogenic bacteria (TCS beverages).
• Meat or poultry.
• Any other type of TCS products.

A cottage food business does not have to comply with the Texas Food Establishment Rules (TFER). A health department does not have regulatory authority to conduct an inspection of a cottage food production operation.

A local health authority can act to control a cottage food business through an emergency order, recall order and delegation of powers or duties. It must maintain records of all complaints made against a cottage food production operation. An operator or owner does not need a permit, license or inspection to start or operate a cottage food business.

A cottage food business may sell through the internet or by mail order only if the consumer buys the food on the internet or by mail order from the operation, and the operator personally delivers the food to the consumer. A cottage food business may not sell its foods wholesale.

Before an operator accepts payment for food sold on the internet or by mail order, they must provide all labeling information required by Texas Health and Safety Code Section 437.0193 and Texas Administrative Code Section 229.661(d). The operator must do one of these:

• Provide a legible statement on the business’ website.
• Publish the information in a catalog.
• Otherwise communicate the information to the consumer.

The operator of a cottage food production operation that sells food in Texas on the internet is not required to include the address of the operation before accepting payment, but they must provide the address of the operation on the label after they accept payment.

The operator of a cottage food business is required to have successfully completed an accredited basic food safety education or training program for a food handler.

Texas Health and Human Services will recognize a food manager certification from an accredited program in place of a food handler certification. The state provides a list of accredited food handler online training programs on its website.

A cottage food production operation is required to package and label the items it sells. The food must be packaged in a way that prevents the products from being contaminated. The exception to this rule is for foods that are too large or bulky for conventional packaging.

The business must provide labeling information on an invoice or a receipt for foods that are not packaged to the consumer.

The label must include:

• Legible writing.
• Name and address of the operation.
• Common or usual name of the product, such as “apple pie.”
• If food contains a major food allergen, like eggs, nuts, soy, peanuts, milk or wheat, that ingredient must be listed on the label. Example: “Apple pie, containing wheat and eggs.”
• Required statement: “This food is made in a home kitchen and is not inspected by the Department of State Health Services or a local health department."
  
• Unique number for each batch of pickled fruit or vegetables, fermented vegetable products or plant-based acidified canned goods.

If the business sells frozen raw and uncut fruit or vegetables, the operator must label or list on the invoice in minimum 12-point type: "SAFE HANDLING INSTRUCTIONS: To prevent illness from bacteria, keep this food frozen until preparing for consumption."

When a business owner offers food for sale at a temporary food event (TFE), such as a festival, parade or celebration, they must obtain a permit from the city. A cottage food production business also must obtain a permit to offer food for sale at such an event.

The city’s code and the Texas Food Establishment Rules provide guidelines for permitting and food safety standards for food establishments. Local health departments have established procedures to assist with advanced planning and management of TFEs.

A business owner who answers "yes" to any of these questions needs to obtain a TFE permit:

• Is the general public invited to the event?
• Can a person other than a member of the organization and their family members or invited guests attend?
• Has the business owner advertised the event or sold tickets to the general public?
• Is the business owner serving open food, open container drinks (mixed drinks with ice, wine or keg beer) or food that requires refrigeration or to be held hot?

A business owner who is providing a consumable (food or drink) to the public from a wheeled unit such as an ice chest, vehicle, bike, pushcart or trailer, needs a permit. A food truck must operate under a valid city and/or county mobile vending permit in accordance with the rules and regulations of the public health department.

A food truck operator may not expand operations to areas outside of the mobile food establishment. For example, a food truck operator may not set up a non-permitted stall next to a food truck.

An event organizer that plans to have a food truck at their event and already has a mobile food permit is not required to obtain an additional health permit. It is the event organizer’s responsibility to ensure that food trucks have the proper permits on site.

A mobile vendor or a trailer at a special event is subject to a fire inspection. A food truck may require an on-site fire inspection as well.

The permit issued by the local health department does not allow for vending on a right of way, such as a parking space, sidewalk or street. A business owner may need a special permit for food truck vending in a right of way. One example of such a permit is Austin’s Right-of-Way Management Approval Network (ROWMAN) permit from the Austin Transportation Department.

Let's take a look at some of the frequently asked questions about selling food products at home in Texas.

An individual can make baked goods at home and sell them in Texas if they are not a time and temperature control for safety (TCS) food. A TCS food is one that must be kept at a certain temperature to be safe for consumption. Examples include cheesecake or baked goods with custard filling.

The individual should apply to the city or county in which the street is situated. If the organization is putting on an event on a private road, the organization may charge a fee for the vendor to sell at the location. The cost of the permit will depend on the locality’s regulations and whether food sales are part of a specific event, like a street fair.

A cottage food business owner does not need a license to sell food from their home or from a specific point of sale such as a farm stand. The cost of a license to sell food from a permitted retail food establishment like a restaurant depends on the business’ gross annual volume of food sales.

The range of food items that a cottage food producer can sell from home include baked goods that are not TCS foods, roasted coffee, cereal and frozen raw, uncut vegetables. The list of “Types of Foods Produced” in this article provides a more thorough picture of the types of foods the operator may sell from home.