Q1. When did the law take effect?
Answer: September 1, 2011
Q2. What kinds of food can I sell from home?
Answer: Non-potentially hazardous baked items like cake, cookies, brownies; fruit pies, breads, jams, jellies, and dry herbs or herb mixes. These are the only foods allowed.
If it is not a non-potentially hazardous baked good, jam, jelly, dried herb or herb mix, it is not allowed. If you're thinking "But what about..." please refer to the answer already given. The only foods allowed are baked goods which do not require refrigeration, dried herbs, herb mixes, and jams and jellies.
Q3. Can I sell fudge and pralines?
Answer: No, candy is not on the list of allowed foods.
Q4. What about cake pops/cake balls?
Yes, those are allowed as long as you baked the cake.
Q5. What is a non-potentially hazardous baked item?
Answer: Non-potentially hazardous foods are foods with a low water activity and high acid level that inhibits the growth of dangerous micro organisms. Basically is means non-perishable foods; foods that you would not normally keep in the refrigerator. Foods that are perishable, such as cheesecakes, or custard fillings, or meringue pies, are not covered in the law. To sell foods that require refrigeration, you must get a license, use a commercial kitchen and take food handler's training. Contact your local health department for requirements. This paper explains what a non-potentially hazardous baked item is (in mostly lay terms).
Q6. Can I sell cheesecake, flan, pumpkin pie, and lemon meringue pie?
Answer: No, all those items require refrigeration.
Q7. But I've seen pumpkin pies out on tables at Walmart and HEB!
Answer: They contain chemicals which make them shelf-stable. They also don't taste very good.
Q8. Do I have to get a license from the Health Department?
Q9. Will my kitchen be inspected?
Answer: No, the law specifically prohibits the local Health Department from regulating Cottage Food Operations. In fact, if the Health Department were to come to your home, they would need a warrant to enter legally (assuming you are following the rules of SB 81. See Q28
for more info).
Q10. Do I have to register with the local Health Department?
Answer: No way! The law specifically prohibits the local Health Department from regulating Cottage Food Operations.
Q11. What should I do if an inspector from the Health Department knocks on my door and wants to come into my kitchen?
Answer: Ask to see their warrant or tell them to come back with a warrant. Under the Texas Cottage Food Law they are prohibited from regulating Cottage Food Operations.
Q12. Do I have to take food handler's training if I operate under the new cottage food law?
Answer: No, but it is highly recommended in order for you to protect yourself and your customers. There are many inexpensive courses that can be taken online.
Q13. Do I have to carry liability insurance if I am operating under the cottage food law?
Answer: No, but it is highly recommended, not only to protect your personal assets, but your customers, in case something goes wrong. Some wedding venues require proof of liability insurance from all food vendors, so if you plan on doing weddings, it is well worth the investment. Here is one source for home bakery insurance.
Q14. Can I have pets in my home?
Answer: Yes, but for goodness sake, please keep them out of your kitchen.
Q15. Can I do bridal shows?
Answer: Yes, but you will probably need to get a temporary food license and use a commercial kitchen if you want to give out samples at the show. Check with the show director and your local Health Department to find out their policies.
Q16. Can I give out samples?
Answer: Samples given to private parties, such as your neighbors, co-workers, or local businesses are probably ok. But you would not be able to give out homemade samples at a public event such as a bridal show. Refer to the previous question.
Q17. Can I deliver?
Answer: The letter of law says that the food must be for sale at your home
. The customer must visit your home to either 1) place the order, 2) pay for the order, or 3) pick up the order.
If you need to deliver a wedding cake or other item, be sure that the bride or customer comes to your home and completes the actual purchase of the item at your home. This can be prior to the event date. The customer could also mail a check to your home, this allows the purchase to have taken place at your home.
Q18. Can I advertise?
Q19. Do I have to charge sales tax?
Answer: In Texas, bakery items sold without utensils are typically not subject to sales tax. Contact the Texas State Comptroller
for further details.
Q20. Do I have to get a DBA or set up an LLC, or something like that?
Answer: 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.
Q21. Do I have to claim my income and pay taxes on it?
Yes. Consult with a tax professional.
Q22. Does local zoning still apply?
Yes. The law as it currently stands does not override local zoning ordinances. This issue will likely be revisited in the 2013 legislative session, as some cities have decided to use "zoning" as a way of prohibiting cottage food operations based on "health concerns". Contact your city or municipality's Zoning Department to see if there are regulations for Home Occupations.
Q23. Do HOA restrictions still apply?
Answer: Yes. Hopefully your HOA would not selectively enforce restrictions on cottage food operators, while allowing Avon, Pampered Chef, and all other manners of home businesses to operate in peace.
Q24. Does this new law cover bake sales for my church/school/non-profit group?
Answer: No, the new law only covers FOR profit operators. Non-profit bake sales are still regulated by your local Health Department, which may or may not allow homemade food to be sold to the public. Each county's department has different rules for how these may be conducted, so check with them before organizing your bake sale.
Q25. Can I hold a bake sale at my home?
Answer: Yes, provided that local zoning allows it, and that you are following the other rules of SB 81. You may not hold a bake sale at a location other than your home under SB 81.
Consult the local Health Department for their regulations.
Q26. It says no internet sales! Does this mean I can't have a web site?
Answer: You CAN have a web site, Facebook page, Twitter, etc. You can use whatever method of promoting your business that you want to. You simply can't allow the purchase to take place over the internet, such as setting up a shopping cart and letting customers "click and buy". This ensures that the spirit of the bill is upheld: local, face-to-face sales, where the customer knows the person who made their food.
Q27. If there are no internet sales allowed, can I accept payment by Paypal?
Answer: Yes, as long as the customer visits your home to either place the order, pay for the order, or pick up the order. The "no internet sales" clause was not intended to restrict payment method.
Q28. What happens if I don't follow the rules of SB 81? What is the penalty?
Answer: Think of the rules of SB 81 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), you lose your umbrella. You would then be an illegal food establishment, subject to inspections and fines. Read the 3rd item from the bottom on this page.
The rules bind you, but they also protect you.
Q29. Can I sell at Farmer's Markets?
Answer: No, thanks to the Harris County amendments, you are not able to sell at Farmer's Markets. Sales must take place at your home.
Q30. Harris County? What?
Answer: Yes, Harris County used taxpayer money to hire a lobbyist to fight not only the cottage foods law, but the raw milk and farmer's markets bills during the 82nd legislative session. When it was obvious that Representative Kolkhorst intended to pass the cottage food bill, they told her she had to accept their amendments or they would kill the bill on the floor. Scroll down to May 30 entry here
Q31. Bummer! I am a chocolatier/candy maker, and I wanted to sell at Farmer's Markets. What can I do to get the law amended?
Answer: HB 970 is now active in the 2013 Texas Legislature
. HB 970 expands the list of allowable foods, allows sales at locations other than the home, and prohibits local authorities from prohibiting cottage food operations through zoning. "Like" our Facebook page for daily updates!
Q32. Should I call my local Health Department before I begin operations? You know, just to be sure?
Answer: That is up to you. Be aware that this is not a popular law with public health workers, and that sadly some health departments around the state are discouraging callers from beginning a home-based business, usually on the grounds of "zoning", although health departments do not have jurisdiction to enforce zoning. The law specifically says that the local Health Department may not regulate
a cottage food production operation, so they have no jurisdiction over you as long as you follow the rules laid out in the law.
Q33. Can I make dog treats or pet food under this law?
No. Per DSHS, animal food is regulated by the Office of the Texas State Chemists, Texas Feed and Fertilizer Control Service. See Q12 on the DSHS FAQ for more info.
Q34. Can I sell my food to a coffee shop or retail bakery, or grocery store (or any licensed food establishment or wholesaler) for them to resell?
No. There are two reasons. 1) SB 81 says you must sell your food only directly to the consumer, so you may not sell it to a reseller. 2) Restaurants and wholesalers are bound by the Texas Food Establishment Rules, which do not allow them to sell homemade food.
Q35. Does my food product have to be labeled?
Yes. See the Labeling FAQ
for complete labeling information.
Q36. I have more questions. Lots more questions. Can I email you every single one of them?
Answer: Please don't. Consult an attorney if you have more questions about this law. The law
is actually very short and very straight forward, and if it's not in the letter of the law, it does not apply. Additionally, the advice on this page is not in any way legal advice, it is simply one person's interpretation of reading the letter of the law. If you have any doubts or questions about the law, it is your responsibility to contact an attorney. We do not assume responsibility for the way you run your business. Use common sense and consult an attorney if necessary.