Last year the Texas Legislature approved a bill to allow the sale of food made in uninspected and unlicensed home kitchens, but some now say the state’s rules implementing the new law are unnecessarily burdensome and subvert the measure’s intent.

Rules for Senate Bill (SB) 81, which went into effect last Sept. 1, were not made public until Dec. 1 at a meeting of the Texas State Health Services Council.

At issue are labeling requirements for food items prepared by home kitchen retailers. The rules call for the burgeoning cottage food industry in Texas to list the ingredients on the label for each product they sell. Home bakers think that requirement is ridiculous.

Rep. Lois Kolkhorst, chair of the Texas House Committee on Public Health, says the rules are “are a shining example of overreach.”  Her staff is telling Texas media that major food retailers have been at work influencing the rule-makers in the Texas Department of Health.

And the cottage food industry is saying it is being subjected to requirements stricter than commercial bakeries and restaurants have to follow. Kelly Masters, spokeswoman for the home kitchen bakers, asks how often Starbucks has to list the ingredients on labels for its bakery items.

As signed by Texas Gov. Rick Perry last June, SB 81 does include some labeling requirements. Specifically, the law says labels on retail goods produced in a home kitchen must include the name and address of the food producer and state that the products were made in an uninspected and unlicensed home kitchen.

However, other details were left up to the rule-making process.

SB 81 was a little more complicated than most cottage-food bills introduced and in some cases approved around the country.  The Texas measure also set out to put fresh produce wholesalers under state regulation for the first time.  When Gov. Perry signed the bill, the harvest, packaging, washing and shipping of all raw produce was put under a state inspection regime.

Texas lawmakers were moved by reports of recent contamination and outbreaks involving produce such as tomatoes, spinach, and peppers, which previously had been viewed as too low-risk to merit state attention.

While SB 81 does not require a license to grow produce in Texas, it did require the Texas Department of Health to adopt rules for safe handling of fruits and vegetables.

State health officials are also required under the new law to provide “best practices” education programs to the food businesses they regulate.  It also addresses regulation of farmers’ markets in larger Texas counties that have local health departments, and prevents officials from mandating “temperature control requirements.”

All of that churned up a lengthy rule-writing assignment for an agency that currently regulates 11,000 licensed food producers.  Agency officials anticipate that only a few existing licensed food establishments will switch over to becoming unlicensed cottage-food operations.

The new law includes definitions for “baked goods” and “cottage-food production operation.”  It prohibits local health departments from regulating them, but requires both state and local health departments to keep records of any complaints they get about cottage foods.

Rule-makers produced 12 pages of requirements for the new law in a document roughly four times longer than the bill itself. The new rules state, in part:

“A cottage food production operation allows an individual to operate out of the individual’s home, who produces a baked good, a canned jam or jelly, or a dried herb or herb mix for sale at the person’s home; has an annual gross income of $50,000 or less from the sale of the described foods; and sells the foods produced only directly to consumers.”

Labels must state the food was “made in home kitchen, food is not inspected by the Department of State Health Services or a local health department” in at least the equivalent of 11-point font and in a color that provides a clear contrast to the background.

The rules also require that “ingredients shall include components of the ingredients” and also dictate the ink and typeface requirements. Internet sales are prohibited and no health claims can be made in advertising.

Home kitchens would be required to list on labels all ingredients in descending order, including all food coloring and preservatives and follow the U.S. Food and Drug Administration (FDA) guidelines for allergen labeling.

A 30-day comment period on the new rules ends February 26.