Cottage Food Laws

A Comprehensive Guide to Homemade Food Business in Texas

Share:

Q: What is a cottage food production operation?

A: A cottage food production operation (business) is defined as an individual, operating out of the individual's home, who:

Produces at the individual's home:

a baked good that is not a time and temperature control for safety (TCS) food,
candy,
coated and uncoated nuts,
unroasted nut butters,
fruit butters,
a canned jam or jelly,
a fruit pie,
dehydrated fruit or vegetables, including dried beans,
popcorn and popcorn snacks,
cereal, including granola, dry mix,
vinegar, pickled fruit or vegetables, including beets and carrots, that are preserved in vinegar, brine, or similar solution at an equilibrium pH values of 4.6 or less,
mustard,
roasted coffee or dry tea,
a dried herb or dried herb mix,
plant-based acidified canned goods, fermented vegetable products, including products that are refrigerated to preserve quality,
frozen raw and uncut fruit or vegetables,
or any other food that is not a time and temperature control for safety food.

Has an annual gross income of $50,000 or less from the sale of described food.

Sells foods produced directly to consumers.

Delivers products to the consumer at the point of sale or another location designated by the consumer.

Q: Is a cottage food production operation a food service establishment?

A: No. A cottage food production operation is not a food service establishment.

Q: What is the definition of a baked good?

A: A baked good is a food item prepared by baking the item in an oven, which includes:

cookies,
cakes,
breads,
Danish pastries,
donuts,
pastries,
pies,
other items that are prepared by baking.

A baked good cannot be and does not include a time and temperature control for safety food (TCS).

Q: What are some examples of foods that can be prepared at a cottage food production operation?

A: The following are examples of non-TCS that may be prepared and sold at a cottage food production operation:

Breads, rolls, biscuits,
Sweet breads, muffins,
Cakes (birthday, wedding, anniversary, etc.)
Pastries,
Cookies,
Fruit pies,
Canned Jams and jellies,
Dry herbs and dried herb mixtures,
Candy,
Coated and uncoated nuts,
Unroasted nut butters,
Fruit butters,
Popcorn and popcorn snacks,
Dehydrated fruit or vegetables, including dried beans,
Cereal, including granola,
Dry mix,
Vinegar,
Pickled fruits and vegetables,
Mustard,
Roasted coffee or dry tea
Planted-based acidified canned goods, including salsa, BBQ sauce, ketchups.
Dried Pasta
Fermented vegetable products
Frozen raw and uncut fruits or vegetables.

Q: What types of foods are NOT allowed to be sold at a cottage food production operation?

A: The following foods are examples of food that can not be produced by a cottage food production operation:

Fresh or dried meat or meat products including jerky
Kolaches with meat
Fish or shellfish products
Raw seed sprouts
Bakery goods that require any type of refrigeration such as cream, custard or meringue pies and cakes or pastries with 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
Foccaccia-style breads with vegetables or cheeses
Beverages that require refrigeration to prevent the growth of pathogenic bacteria (TTCS Beverages)
Meat or Poultry
Seafood
TCS Products

Q: What is a time and temperature controlled for safety food (TTCS)?

A: A time and temperature control for safety (TTCS) food requires time and temperature control for safety to limit pathogen growth or toxin production. In other words, a food must be held under proper temperature controls, such as refrigeration to prevent the growth of bacteria that may cause human illness. A TTCS is a food that: contains protein, moisture (water activity greater than 0.85), and is neutral to slightly acidic (pH between 4.6 -7.5).

Q: Where may a cottage food production operation (CFPO) sell products?

A: A CFPO may sell products directly to consumers.

Q: Can I use the Internet to sell my cottage food products?

A: A cottage food production operation may sell through the Internet or by mail order only if:

the consumer purchases the food through the Internet or by mail order from the operation and the operator personally delivers the food to the consumer.

A cottage food production operation may not sell at wholesale.

Q: What are the labeling requirement for internet and mail order cottage food operators?

A: Before the operator accepts payment for the food, the operator provides all labeling information required by Health and Safety Code section 437.0193 and Texas Administrative Code §229.661(d) to the consumer by:

posting a legible statement on the operation’s Internet website;
publishing the information in a catalog; or
otherwise communicating the information to the consumer.

The operator of a cottage food production operation that sells a food in this state in the manner internet or wholesale:

is not required to include the address of the operation in the labeling information before the operator accepts payment for the food; and
shall provide the address of the operation on the label of the food in the manner required after the operator accepts payment for the food.

Q: Can I make cottage food products in another building on my property?

A: The law requires cottage food products to be produced in an individual’s home which is a primary residence that contains a kitchen and appliances designed for common residential use.

Q: Is labeling required on food items produced by a cottage food production operation?

A: Yes. Foods sold by a cottage food production operation must be packaged and labeled. The food must be packaged in a manner that prevents product contamination, except for foods that are too large or bulky for conventional packaging. The labeling information for foods that are not packaged must be provided to the consumer on an invoice or receipt.

The label must include the following information:

The name and physical address of the cottage food production operation;
The common or usual name of the product;
If a food is made with a major food allergen, such as eggs, nuts, soy, peanuts, milk or wheat that ingredient must be listed on the label; and
The following 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."

Labels must be legible.

Also, cottage operator selling frozen raw or uncut fruits must label or provide on invoice or receipt the following statement in at least 12-point font: "SAFE HANDLING INSTRUCTIONS: To prevent illness from bacteria, keep this food frozen until preparing for consumption."

For each batch of pickled fruit or vegetables, fermented vegetable products, or plant-based acidified canned goods, a cottage food production operation must: label the batch with a unique number.

Q: Do I need a permit or license for my cottage food production operation?
A: Cottage food production operations are not retail food establishment, therefore, a retail food establishment license is not required.

Q: Is there a limit as to how much I can earn from my cottage food production operation?
A: Yes. A cottage food production operation is limited to an annual gross income of $50,000 or less from the sale of food produced at the cottage food production operation.

Q: Is there a process for submitting a complaint against a cottage food production operation?

A: Yes. A complaint may be submitted to the Texas Department of State Health Services (DSHS) for cottage food production operations located under DSHS jurisdiction at: https://www.dshs.texas.gov/foodestablishments/complaints.aspx

Complaints concerning cottage food production operations that are located under the jurisdiction of a local health authority must be reported to the local health authority at: https://www.dshs.state.tx.us/regions/lhds.shtm

Q: Will the Department of State Health Services conduct inspections at cottage food production operations?

A: No. The Texas Department of State Health Services does not have authority to conduct inspections at a cottage food production operation. However, the Department may investigate a complaint regarding preparation of time and temperature control for safety (TCS) food at a private residence. In the event of a foodborne illness outbreak, the department or local health authority may act to prevent an immediate and serious threat to human life or health.

Q: Will I need to comply with local zoning or other laws?

A: Local Government Code, Sec. 211.032, Certain Zoning Regulations Prohibited, states a municipal zoning ordinance may not prohibit the use of a home for cottage food production operations.

Q: Will the Department be required to write rules concerning cottage food production operations in a separate chapter outside the Texas Food Establishment Rules?

A: Yes. The department will adopt a rule concerning the regulation of cottage food production operations. Title 25 of the Texas Administrative Code, Section 229.661 provides definitions for cottage food production operations, labeling requirements, complaint database requirements, and sales location requirements.

Q: Can a cottage food production operation deliver food produced by the operation to the customer who purchased the food product?

A: Yes. A Cottage Food Production Operation may deliver products to the consumer at the point of sale or another location designated by the consumer.

Q: What are the requirements to pickle, ferment, or acidify can goods?

A: A cottage food production operation that sells to consumers pickled fruit or vegetables, fermented vegetable products, or plant-based acidified canned goods shall:

use a recipe that: is from a source approved by DSHS,
has been tested by an appropriately certified laboratory that confirmed the finished fruit or vegetable, product, or good has an equilibrium pH value of 4.6 or less; or
is approved by a qualified process authority; or
if the operation does not use a recipe described by DSHS, test each batch of the recipe with a calibrated pH meter to confirm the finished fruit or vegetable, product, or good has an equilibrium pH value of 4.6 or less.

For each batch of pickled fruit or vegetables, fermented vegetable products, or plant-based acidified canned goods, a cottage food production operation must:

label the batch with a unique number; and
for a period of at least 12 months, keep a record that includes:

a) the batch number;

b) the recipe used by the producer;

c) the source of the recipe or testing results, as applicable;

d) and the date the batch was prepared.

These testing requirements do not apply to pickled cucumbers.

Q: Does a cottage food operator have to have a Food handler certification?

A: An individual who operates a cottage food production operation must have successfully completed an accredited basic food safety education or training program for food handlers.

Q: If I have Food Manager Certification, do I also need to have a food handler certification?

A: The department will recognize a food manager certification from an accredited program in lieu of a food handler certification.

Q: What are the rules on providing samples?

A: Under HB 1694, any farmer or vendor at a farmers’ market can prepare and provide samples on-site so long as they meet some basic sanitation requirements:

Samples must be distributed in a sanitary manner.
A person preparing produce samples on-site must either wear clean, disposable plastic gloves while, or wash their hands in soap and water prior to, preparing the samples.
Potable water must be available for washing.
Utensils and cutting surfaces used for cutting samples must be smooth, nonabsorbent, and easily cleaned or disposed of.

Note that the sampling law contains two additional requirements that would not be applicable to cottage food producers:

Produce intended for sampling must be washed in potable water to remove any soil or other visible material; and
If the samples are potentially hazardous (such as cut produce), they must be either kept at 41 degrees or colder or disposed of within 2 hours of preparation.

Cottage food operations can only provide samples of foods that they can legally sell. In other words, you can provide samples of your baked goods, jams, pickles, etc. But while you can sell coffee beans, you can’t sell liquid coffee and therefore you can’t provide samples of liquid coffee.

Outside of a farmers’ market, the regular health department regulations apply. This poses a problem since a temporary food establishment (TFE) permit requires that it serve food only from “approved sources,” and many jurisdictions do not interpret that to include cottage food operations.

The best way around that problem (if you’re not a farmers’ market vendor) is to package and label sample-size portions in your home. At your sale location, you can provide these pre-packaged, pre-labeled samples with no further requirements or regulation.

Hint: 2-ounce disposable containers with lids, hold a bite-sized amount of food and are extremely inexpensive. They are shown labeled with standard print-at-home labels size 1″ x 2-5/8″. Don’t like the idea of wasting so much plastic? Consider paper or glassine.

Q: What kinds of foods are NOT allowed as cottage foods?

A: No meat products and no foods that require refrigeration. Some specific examples of foods not allowed are: cheesecake, kombucha, kefir, any beverage, hot meals, pizza, casseroles, tacos, beef jerky, tamales, flan, pumpkin pie, cream pies, meringue pies, ice cream, or popsicles.

Q: How can I tell if the food I want to sell is allowed?

A: With some foods, the answer is obvious. Dried pasta does not require refrigeration, so it is allowed. A casserole would require refrigeration after its preparation in order not to spoil, so it is not allowed. When you think of foods that you are allowed to sell, think of foods that you would normally store in your pantry, not your refrigerator or freezer. Sometimes the answer is not so clear. The factors that determine whether a food is TCS or NTCS are the food’s pH, aW (water activity), or a combination of these factors, as laid out in the Texas statute. If you are not sure if your food is allowed, you can request a determination from DSHS. They may advise you to have your food tested in a lab for pH and aW. DSHS has published a list of approved labs here.

Not every food you keep in your pantry is allowed as a cottage food, but it is a good way to start thinking about what a NTCS food is!

Q: Does DSHS or a local health department have to approve my recipes before I can sell my food?

A: No. DSHS has no authority to approve recipes except for canned, pickled, and fermented foods. Local health departments have no authority at all to approve or disapprove recipes.

Q: Why can’t I sell homemade beef jerky? It doesn’t require refrigeration to keep it from spoiling.

A: The sale of meat products is federally regulated. No state can allow meat as a cottage food. When Maine tried to include meat in its “food freedom” law, the USDA came down hard on the state, and Maine capitulated quickly.

Q: Why can’t I sell kombucha or kefir? They’re fermented, and ferments are now allowed, right?

A: The only fermented products allowed are fermented vegetables. Think sauerkraut and kimchi! Kombucha and kefir are definitely not cottage food products.

Q: Can I sell cheesecake, flan, tres leches cake, pumpkin pie, and lemon meringue pie?

A: Not as a cottage (home) food producer. All those items require refrigeration to keep from spoiling. They are “Time and Temperature Control for Safety” (TTCS) foods. The State of Texas doesn’t have anything against pumpkin pie – you just have to make it in a commercial kitchen if you want to sell it.

Q: But I’ve seen pumpkin pies out on tables at Walmart and HEB!

A: They contain chemicals that make them shelf-stable.

Q: Can I sell homemade vanilla extract? It doesn’t require refrigeration to keep it from spoiling.

A: Yes. Although it was previously regulated by TABC and required an “Industrial Permit” at a cost of $381 for a two-year permit, the 86th Legislature (2019) eliminated the Industrial Permit. Why? Because by FDA standards, the pure vanilla extract contains a minimum of 35 percent alcohol, the same proof as Captain Morgan rum. Click here for more information.

Q: Can I sell homemade salsa, barbecue sauce, hot sauce, or ketchup?

A:Yes, assuming these are all plant-based foods that have a pH of 4.6 or less as outlined in the canning requirements.

Q: Can I sell fruit dipped in candy or chocolate? (Caramel apples, chocolate-covered strawberries, etc.)

A: Yes. Per DSHS: “Whole, uncut fruit, dipped in chocolate or candy-coated, is an allowable cottage foods product.” Note carefully that the fruit must be whole and uncut. An apple with a stick in it is not allowed, because the apple has been punctured. This is a food safety issue, not just a technicality. Once the skin of a fruit has been punctured, bacteria can enter it. For caramel apples, consider leaving the apple whole and selling a package including the apple and the stick, so the customer can stab the apple themselves.

Q: Can I sell homemade elderberry syrup?

A: No. Elderberry “syrup” is actually, depending on the preparation method, a juice or tincture. Both require refrigeration and cannot be a cottage food. Additionally, be aware that state rules prohibit advertising cottage foods as having any health benefits. Cottage foods are conventional foods.

Q: Is honey a cottage food?

A: Yes. Because honey does not require time or temperature control for safety, it can be sold as a cottage food. Per the Farm and Ranch Freedom Alliance, other labeling regulations from the Texas Agriculture Code, Chapter 131, Subchapter E, apply.

Q: Can I sell eggs from my chickens under the cottage food law?

A: Eggs aren’t a cottage food, but under Texas Department of Agriculture (Egg Law) and DSHS regulations, yard egg sales directly to consumers are allowed with a few conditions. Read more from DSHS here.

Q: Can I make dog treats or pet food under this law?

A: No. Animal food is regulated by the Office of the Texas State Chemists, Texas Feed and Fertilizer Control Service. Here is a link to the rules.

Q: Can I sell cottage foods that include hemp or CBD?

A: Cottage food producers are not exempt from the rules regulating hemp and CBD products. Please direct all your questions to DSHS. Here is a link to the rules.

Q: Can I sell my food to a coffee shop, retail bakery, grocery store, or any licensed food establishment or wholesaler for them to resell?

A: No. There are two reasons:

the law says you must sell your food only directly to the consumer, and that you may not sell wholesale. This means you may not sell it to a reseller.
restaurants and wholesalers are bound by the Texas Food Establishment Rules and/or Food Manufacturers Rules, which do not allow them to sell homemade food, which is considered food from an “unapproved source”.

Q: Can I leave my cottage food in a shop for the shop to sell on my behalf, like a consignment arrangement?

A: No. The cottage food law is for direct sales only – you selling directly to the customer. You must be present to sell your food.

Q: Can I sell at a pop-up shop in a retail store?

A: Yes. Cottage food sales must be directly to the consumer, so you must be present selling the food. You cannot leave the food there for the retailer to sell on your behalf. This would cross the line into wholesaling.

Q: Can I sell at a pop-up shop inside a restaurant with the permission of the owner/manager?

A: Probably not. Restaurants may not sell food from unapproved sources, which includes cottage foods. Check with your local health department.

Q: Can I have employees? Can those employees sell on my behalf at a pop-up shop or market?

A: Yes. Any employee not directly supervised by you, (not including your household members) must also obtain a food handler’s card.

Q: Can I sell my food from a truck or trailer?

A: Yes, as long as the food is made, packaged, and labeled in your home kitchen. Keep in mind that “mobile food units” (food trucks) are licensed through DSHS or local health departments in much the same way that restaurants are, and those regulations would likely not allow the sale of homemade food from a licensed unit. Also be aware of local regulations; a city may have ordinances in place that prevent setting up an unpermitted mobile trailer and selling from it. Cottage food sellers are not exempt from local ordinances.

Q: Can a city tell me I need a city permit to sell in a certain location?

A: Yes. Although the law precludes local government authorities, including health departments, from regulating the production of food at a cottage food production operation, if a local government has a general ordinance — such as you have to get a permit to sell any product at some location, that is still valid and applicable. A city cannot make a special ordinance or regulation that only applies to cottage food operations.

Q: Can a farmer’s market or other private event refuse to allow me to participate, or impose additional rules for participation?

A: Yes. These events are privately owned and managed, and they may set whatever rules or quality standards they wish.

Q: Can a farmer’s market charge me a fee?

A: Yes, booth fees are a normal cost of doing business at a farmer’s market.

Q: Can a city or county refuse to allow me to sell at a city festival?

A: They can’t disallow your participation simply because you are a cottage food producer. If you are not allowed to participate in such an event, make sure to get the reason in writing. (See the last section of this document.)

Q: Can I deliver?

A: Yes.

Q: Does the law require the customer to visit my home to pay for or pick up the food?

A: No. This was only a part of the cottage food law from 2011-2013. Since 2013, the customer is never required to come to your home. If you do not want the customer coming to your home, you can deliver the food or meet the customer at a safe public meeting spot. Many police departments offer safe spaces for internet transactions such as craigslist purchases.

Q: Can I sell my food on the internet?

A: You may sell your food on the internet, in Texas, as long as you personally deliver the food to your customer. All the information on your labels, except your home address, must be provided to the customer BEFORE the customer pays for the food. You can make this information available to the customer by posting it on your web site, or any other method of communication.

Q: Can I ship my cottage food products?

A: From FARFA: “The statute specifically provides that cottage food operators can deliver to their customers in general. Thus, if the transaction is made in person (rather than through the internet or by mail order), it is reasonable to use delivery options such as shipping or hiring a driver. But if the transaction is made remotely, the delivery must be in person, as discussed above.”

Additionally, if the above conditions are met, be aware that homemade food can only be shipped within Texas. When a food crosses state lines, the federal government (FDA) has authority over not only the interstate transport, but the whole operation that produced it. No cottage food law in the country allows interstate shipping.

Q: Can I advertise the health benefits of my food, or make a health claim on the label?

A: Prior to 2020, the answer was no. As of 1/1/2020, the rules state “Advertising media of cottage food products for health, disease, or other claims must be consistent with those claims allowed by the Code of Federal Regulations Title 21, Part 101, Subparts D and E.” These rules are complex. Please consult with an attorney and make sure you understand the rules completely if you wish to advertise a health claim about your cottage food.

Q: Do HOA restrictions apply to my cottage food operation?

A: Yes. Generally, your HOA is more preoccupied with the outside appearance of your home rather than what is taking place inside. Hopefully, they would not selectively enforce restrictions on cottage food operators, while allowing Avon, Pampered Chef, daycares, and all other manners of home businesses to operate in peace. Consider keeping a low profile if you have an overzealous HOA.

Q: Can I have pets in my home?

A: Yes, but for goodness sake, please keep them out of your kitchen.

Q: Can I advertise?

A: Yes, advertising is not restricted in any way. But signage in your front yard may violate city ordinances or HOA rules.

Q: Do I have to get a sales & use permit and charge sales tax?

A: In Texas, most food items are not subject to sales tax. However, some food items like candy and snacks are taxable. The best thing to do is contact the Comptroller directly to ask if you need a permit and whether your product is taxable.

Q: Do I have to get a DBA or set up an LLC, or something like that?

A: Consult with a tax professional or business attorney to determine the best way to set up your business, whether it be a Sole Proprietorship, LLC, or some other business entity.

Q: Do I have to claim my income and pay taxes on it?

A: Yes. The $50,000 income cap is unrelated to federal taxes. Consult with a tax professional.

Q: I got a notice from my county that I have to send them a list of my business assets and equipment so that the county can tax me on them. Is this legal?

A: Yes, it is called the rendition tax. It is not enforced in every county, and it is not enforced on every business, but it is definitely a real and legal tax. Here is a document for Harris County that explains what the rendition tax is. Although the document is published by Harris County, the rendition tax applies in all 254 Texas counties.

Q: What happens if I don’t follow the rules? What is the penalty?

A: Think of the rules like an umbrella. As long as you’re following the rules, you are covered, and you can’t be regulated or inspected by a local Health Department. If you’re not following the rules (for instance, selling cheesecakes or shipping your cookies all over the country), you lose your umbrella. You would then be an illegal food establishment, subject to inspections and fines. The rules bind you, but they also protect you.

Q: I just discovered another cottage food operator who is not following the rules. This makes me really mad. What should I do?

A: Consider three options:

Try to educate that person about the law. They may be unaware of the cottage food law, and eager to know how to comply. Or, there is at least an equal chance that the person doesn’t care and won’t appreciate your input.
Ignore them and focus on your own business. You are the only person you can control.
Or, in extreme cases, file a complaint with the health department if they pose a health or safety risk to the public.

Q: I am devastated that I can’t have a homemade cheesecake/hot meal/shaved ice/pizza/tamale/cookie-shipping business. What should I do?

A: We know it’s very disappointing. But there are legitimate food safety concerns (and sometimes federal law implications) with these types of foods. And you CAN have this type of business – you just need to work with your local health department and USE a commercial kitchen to produce the food. Many metro areas have commercial kitchens for hourly rent for this express purpose.