Over the past decade, the local food revival in the U.S. has gained tremendous momentum, with more consumers interested in where their food comes from, how it’s grown, and who does the growing. The movement is making an impact on the law books, too: When the Food Safety Modernization Act (FSMA) hit President Obama’s desk at the beginning of the year, it included regulation exemptions for small food producers who sell the majority of their harvest locally.

Running parallel to the FSMA’s development in the federal government, several individual states have begun changing other rules for local oversight of local foods.

The changes vary by state, but from Illinois to Kentucky to Oregon, state governments have enacted or considered bills that generally aim to loosen restrictions on farmers and cottage food producers whose sales numbers fall below specified limits. In other instances, states are simply trying to establish rules where none existed, with the current status quo leaving producers and customers interacting in some regulatory gray areas.

Most of these measures come on the heels of the widespread expansion of local food sales. At the end of 2010, the National Farmers’ Market Directory reported 6,132 farmers’ markets operating in the U.S., up from 5,274 in 2009 and 2,410 in 2000.

According to a recent article by the Oregonian’s Lynne Terry on a new Oregon farmers’ market bill, 18 cottage food bills have been passed or introduced in various states.

Support for these state-level bills stems from two key ideas: First, proponents say the entry barriers for local food businesses should be lowered by reducing start-up costs that constrict innovation and newcomers; and second, food regulations designed for industrial agriculture should be revised to be more scale-appropriate for small food producers.

While each bill approaches food safety provisions differently, some food safety advocates question whether rules in certain bills go too far in reducing safeguards for consumers.

In a number of states, including Ohio, Minnesota and Iowa, cottage food bills permit the sale of non-hazardous foods produced in kitchens not inspected by state health officials, typically requiring they be sold directly at farmers’ markets and the producer’s annual sales remain below a set limit.

These gross sales limits fall anywhere between $5,000 and $25,000, though not all states establish one.

The 2011 Illinois Senate Bill 137 (SB 137), a new cottage food bill, would lift this restriction in the state. Under current state law, anyone wishing to sell their own FDA-designated non-hazardous foods such as jams, jellies and baked goods must still prepare the food in a state-inspected commercial kitchen.

If enacted, SB 137 will allow Illinois food makers to prepare non-hazardous foods in uncertified kitchens–including home kitchens–as long as the yearly sales of those products stay below $25,000. These food makers must still register with the state’s health and agriculture departments and pass a sanitation management course, and their food will carry a label explaining that it was not made in an inspected kitchen.

SB 137 was written by Wes King, policy coordinator for the Illinois Stewardship Alliance, who sees its implementation as a “stepping stone” for prospective food makers. Looking at established and developing cottage food laws in other Midwest states, King based the idea for SB 137 on helping food makers and farmers develop new products without the high cost barrier of working in a commercial grade kitchen, which he said is stifling potential new businesses in Illinois.

“Let’s pretend I’m a farmer growing a variety of berries to sell at a farmers’ market,” King said. “At the end of the day I’ll probably have leftover product that either just didn’t sell or it might be a little bruised–it’s fine to eat, but just looks bad. As a farmer in Illinois right now, there’s not much I can do with it. With cottage food laws, the idea is that a farmer can make jams and jellies out of that and sell them at the market for a more stable stream of revenue. Farmers’ markets ebb and flow with the seasonality of harvest, but these products–and baked goods–can be produced any time of year, so they can fill in the gaps.”

Once a cottage food business intends to surpass $25,000 in sales, operations must move to a state-certified kitchen. The requirement to register home kitchens with state health and agriculture departments will allow inspectors at markets to ensure all home-made products are appropriately labeled, and agriculture departments can better organize outreach and education programs through a database of unlicensed kitchens.

These layers of safeguards built into bills like SB 137 have won considerable support from local food proponents and food safety advocates alike. One condition that draws concern, however, is that SB 137 and many similar bills exempt home kitchens from any potential health inspections.

“I think the Illinois bill is a good model for stimulating local food and making the market more accessible to entry-level businesses, but I think it goes a little too far beyond helping the cottage foods industry,” said Michael Bulger, an NYU food studies master’s candidate and food safety advocate who has contributed to Grist regarding the FSMA.

“I understand why they don’t need certified kitchens, but I don’t think it’s ever appropriate to absolutely deny the public access to a place where food is produced to be sold to them. In the restaurant industry, you’re told that the inspectors are your friends–they help you catch mistakes before anyone gets sick.”

King contended that the bills typically exempt home kitchens because of their nature as multi-purpose areas where conditions vary depending on the day’s use. He said the required labels will deter any customers concerned with food made in an uninspected kitchen, while the bottom line was that only non-hazardous foods qualified for home preparation, making the potential for contamination much less likely.

On March 1, SB 137 passed its committee vote with unanimous approval under the condition that a new draft would include an exact list of approved non-hazardous foods.

In February, the Oregon State House of Representatives passed House Bill 2336 (HB 2336), which would define what foods Oregon farmers and cottage food producers may sell directly to consumers without buying licenses intended for large-scale farms.

Oregon laws have never clarified foods acceptable for farm-direct sales like the transactions that occur at farmers’ markets.  If enacted, the measure would establish that farmers can directly sell unlimited quantities of fruits, vegetables, shell eggs, nuts,  legumes, and a list of non-hazardous whole foods, while putting a $20,000 sales limit on certain processed products such as canned fruit, syrups, jams, and salsas.

“Local food is a big story now, but the laws in this state just haven’t caught up,” said Rebecca Landis, market director for Corvallis-Albany Farmers’ Markets, comprised of three markets in Oregon. “We’re trying to have regulation that makes sense with what we’re doing. This isn’t some sort of anti-government crusade.”

Like the Illinois bill, Oregon’s aims to lower the entry barrier for newcomers and encourage innovation from established food makers by exempting licensing fees for new foods, which generally range from $189 to $325, Landis said. During h
er 20 years working in Oregon farmers’ markets, she has never heard of a foodborne illness connected to a farm-direct sale in the state.

Bulger voiced concern with the inclusion of eggs on the list of whole foods exempted from licensing–making them the only food on the bill’s list that the FDA classifies as a potentially hazardous food–but existing Oregon laws already permit farm-direct sales of eggs without a license.

At Landis’ farmers’ markets and the majority of those in Oregon, anyone selling potentially hazardous food–including eggs–must buy into liability insurance. As a result, no farmers sell eggs unless they have already purchased the insurance for other foods.

As in the Illinois bill, any home-processed food in Oregon will require a specific label. And in Oregon, state health officials will have the authority to stop food makers’ operations if their food is proven unsafe, a case Landis doubts will ever be necessary.

“If you’re buying food at a farmers’ market, you’re face-to-face with the growers week after week,” she said. “If they screw up, chances are their family will be affected, too. Regulation doesn’t necessarily ensure safety. A person’s actions and inactions determine what is safe or not, so we’re trying to differentiate what actually promotes safety versus what is just unnecessary regulation.”

Bulger and food safety advocates who lean toward the regulatory side of protection still stump for more oversight in the growing trend of changes to cottage food and farm-direct rules.

“It’s a good thing that a lot of people genuinely want to buy from these producers at the start of the food chain,” Bulger said. “But I think it’s also important and not very burdensome to allow for inspection–it helps producers maintain safety and it improves consumer confidence.”