The Texas Senate just passed SB 81 with the cottage foods and farmers market provisions intact!  This bill significantly reduces unnecessary regulations for Texas farmers and food producers who sell directly to consumers.

The original version of SB 81, as authored by Senator Nelson, did one thing: it required wholesalers who package, wash, or ship fruit or vegetables to obtain a license.  The bill continues to exempt farmers selling their own produce from the farm from licensing. The bill was introduced because of the many foodborne illness outbreaks that have occurred due to problems in the handling chain in the mainstream food system.

Representative Kolkhorst sponsored the bill in the House, and the House Public Health Committee adopted two changes to the original bill: (1) creating a voluntary food safety best practice education program, and providing that wholesale produce businesses who take that program may be inspected less often (thereby prioritizing education over inspections in preventing foodborne illness); and (2) requiring that when the State Health Department adopts a federal rule, the Department publish notice of the rule on its website with a clear explanation.

On the House floor, two more changes were made.  Representative Kolkhorst added a cottage foods provision from HB 2084, and Representative Rodriguez added two of the farmers market provisions from HB 3387.


Under current law, anyone who prepares any food for sale must have a commercial kitchen license.  The cost of a commercial kitchen can be prohibitive for start-up businesses and small-scale producers.

The cottage foods provision in SB 81 allows small-scale producers to sell specific low-risk foods directly to consumers without the expense and burdens of the current regulations.  The listed foods are baked goods, jams, jellies, and dried herbs, all of which are recognized as non-hazardous by FDA.  Individuals selling less than $50,000 of these foods directly to consumers either from their own home or at a farmers market would be exempt from regulation.  Producers would have to include a label with their contact information and the fact that the food was not inspected by state or local health authorities.


The farmers market provisions in SB 81 address two issues:

1. Provides clarity to Temporary Food Establishment permits:  SB 81 allows farmers and food vendors at farmers markets to obtain temporary food establishment permits for up to one year, without limiting permits based on the number of days during which the farmers market takes place.  It recognizes that farmers markets are special events regardless of the number of days that they occur on, while providing the flexibility for local governments to decide the best option for their jurisdiction.

2.  Prevents mandatory mechanical refrigeration or electric heating requirements:  Another problem for farmers at farmers markets has been mandatory mechanical refrigeration or heating, requiring farmers to obtain expensive equipment that is not needed to maintain safe temperatures.  The amendment allows the Department of State Health Services and local health authorities to establish safe temperature requirements while barring them from mandating how a farmer or food vendor would maintain the temperature. Therefore, food vendors will still have to meet temperature requirements, but without having to get costly equipment.  The only exception would be when a municipality owns the farmer's market.  In those cases, the municipality may specify the method to comply with food temperatures.

The provisions do not apply to farmers markets in a county that has a population of less than 50,000 people and over which no local health department has jurisdiction.


SB 81 now goes to the Governor, who can either sign it, do nothing (in which case it become law), or veto it.   It is an all-or-nothing decision on the entire bill.  SB 81, in its final form, recognizes that small-scale local foods are different from the food in the industrial system with its long, complex supply and distribution chains.  The bill closes the loophole for wholesale distributors, while de-regulating low-risk direct sales.  This bill is an excellent step in the right direction, and we will continue to work to roll back unnecessary restrictions on local producers.

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