85R3653 DMS-D

By: Rodriguez of Travis H.B. No. 1926

A BILL TO BE ENTITLED

AN ACT

relating to the regulation of food production and sales operations by a home food processor; requiring an occupational permit; authorizing a fee and an administrative penalty.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Section 437.001, Health and Safety Code, is amended by amending Subdivision (5) and adding Subdivision (5-a) to read as follows:

(5) "Home" means a primary residence that contains a kitchen [and appliances designed for common residential usage].

(5-a) "Home food processor" means an individual, operating out of the individual's home, who produces at the individual's home:

(A) any food that a cottage food production operation may produce under Subdivision (2-b)(A);

(B) acidified or low acid canned goods that do not contain meat;

(C) fermented products;

(D) honey;

(E) potentially hazardous baked goods that do not contain meat;

(F) tamales that do not contain meat; and

(G) any other food not included in this subdivision that is not a potentially hazardous food, as defined by Section 437.0196.

SECTION 2. Section 437.002(a), Health and Safety Code, is amended to read as follows:

(a) A county or public health district may enforce state law and rules adopted under state law concerning food service establishments, retail food stores, mobile food units, home food processors, and roadside food vendors.

SECTION 3. Section 437.009, Health and Safety Code, is amended to read as follows:

Sec. 437.009. INSPECTIONS. (a) Authorized agents or employees of the department, a county, or a public health district may enter the premises of a food service establishment, retail food store, mobile food unit, roadside food vendor, home food processor, or temporary food service establishment under the department's, county's, or district's jurisdiction during normal operating hours to conduct inspections to determine compliance with:

(1) state law, including a requirement to hold and display written authorization under Section 437.021;

(2) rules adopted under state law; and

(3) orders adopted by the department, county, or district.

(b) An inspection of a home food processor under Subsection (a) is limited to areas in the individual's home that the individual designates for food production and storage related to the home food process or operation.

SECTION 4. Chapter 437, Health and Safety Code, is amended by adding Section 437.01911 to read as follows:

Sec. 437.01911. EXEMPTION FOR HOME FOOD PROCESSOR. (a) A home food processor is not a food service establishment for purposes of this chapter.

(b) The exemption provided by Subsection (a) does not affect the application of Sections 431.045, 431.0495, and 431.247 authorizing the department, county, or public health district to act to prevent an immediate and serious threat to human life or health.

SECTION 5. Chapter 437, Health and Safety Code, is amended by adding Sections 437.022, 437.0221, 437.0222, and 437.0223 to read as follows:

Sec. 437.022. HOME FOOD PROCESSOR: PERMIT REQUIRED; FEE; SALES. (a) A person may not operate as a home food processor unless the person holds a permit issued by:

(1) a county or public health district for a home food processor located in an area regulated by the county or district; or

(2) the department for a home food processor located in an area not regulated by a county or public health district.

(b) A county, a public health district, or the department, as applicable, may charge a fee to issue a permit under Subsection (a). The amount of the fee may not exceed the amount of the fee for obtaining a food manufacturer's license under Subchapter J, Chapter 431.

(c) A home food processor may sell any food described in Section 437.001(5-a):

(1) at any location in this state;

(2) for a sale by a processor located in this state to a consumer located in this state:

(A) through the Internet; or

(B) by mail order; and

(3) at wholesale.

Sec. 437.0221. HOME FOOD PROCESSOR: PACKAGING AND LABELING REQUIREMENTS. (a) Food described by Section 437.001(5-a) that is sold by a home food processor must be packaged in a manner that prevents product contamination.

(b) Food described by Section 437.001(5-a) that is sold by a home food processor must be affixed with a label that includes:

(1) the name and address of the home food processor;

(2) a list of the ingredients contained in the food item; and

(3) the statement "processed in a home-processing facility."

Sec. 437.0222. HOME FOOD PROCESSOR: PRODUCTION REQUIREMENTS. (a) A home food processor conducting a processing operation shall comply with the following:

(1) in the two years preceding the use of a home for the operation, the home may not have been a place of business for a food manufacturer licensed under Subchapter J, Chapter 431;

(2) a refrigerator or freezer used for the operation's food storage:

(A) may not be the same refrigerator or freezer used for personal use in the home; and

(B) must have an accurate thermometer;

(3) a potentially hazardous food allowed under Section 437.001(5-a) that is kept after production must be:

(A) refrigerated at a temperature of not more than 41 degrees Fahrenheit; or

(B) maintained at a heated temperature of not less than 135 degrees Fahrenheit; and

(4) each ingredient and final product for the operation must be stored in an area that:

(A) is separate from any personal use area unless the ingredient or final product is in an enclosed container;

(B) is cleanly maintained; and

(C) protects food from unsanitary conditions and contamination.

(b) A home food processor shall ensure the processor's operation meets the following requirements:

(1) each wall, ceiling, and floor of the operation area must be in good repair, easily cleanable, and cleanly maintained;

(2) each utensil, item of equipment, and supply used in the operation must be cleanly maintained;

(3) each food contact surface must be easily cleaned, smooth, nonabsorbent, and free from cracks or open seams;

(4) plumbing in the operation area must provide pressurized hot and cold potable water;

(5) sewage disposal for the operation must be through an adequate sewer system or by other adequate means;

(6) toilet facilities:

(A) may not open directly into the food production area; and

(B) may open into a hallway that leads to the food production area only if the toilet facility is equipped with a self-closing door;

(7) water used for food production that is not from a public water system must be annually sampled and tested for coliform, and any required records of the water testing must be maintained; and

(8) live animals, including pets, must be prevented from entering any operation and storage area used during food handling, production, or storage activities.

(c) A home food processor or an individual who processes, prepares, packages, or handles food for a home food processor:

(1) shall successfully complete a basic food safety education or training program for food handlers accredited under Subchapter D, Chapter 438; and

(2) may not process, prepare, package, or handle home food products unless the home food processor or the individual:

(A) is free from contagious or communicable diseases, sores, or infected wounds; and

(B) wears a hair restraint, any necessary beard restraint, and clothing to cover body hair that are designed and worn to effectively prevent hair from contacting exposed food.

(d) A home food processor producing a fermented product or a canned good that is acidified or low acid shall:

(1) before making the product or good available for sale, submit to the department the recipe and a description of the process used to produce the product or good;

(2) before making the product or good available for sale, submit to a commercial laboratory approved for testing by the department a sample of the product or good produced according to the submitted recipe and process;

(3) keep a record of the testing results of a product or good submitted under Subdivision (2);

(4) keep a record of the pH balance of each batch of the product or good that is produced; and

(5) have a product code plan that identifies:

(A) the product or good;

(B) the date and year the product or good was packaged; and

(C) the batch number.

(e) A recipe submitted to the department under Subsection (d) is a trade secret for purposes of Section 552.110, Government Code, and is exempt from disclosure under Chapter 552, Government Code.

(f) A home food processor who sells a potentially hazardous food at any location other than the processor's home shall maintain the food at an air temperature of not more than 41 degrees Fahrenheit or of not less than 135 degrees Fahrenheit at all times except during transfer of the food from one storage area or transportation vehicle to another.

Sec. 437.0223. HOME FOOD PROCESSOR: RECORDS. (a) A home food processor shall maintain records that include each food sold by the processor and the location where the food was sold. For a food sold at wholesale, the records must include the name of the immediate purchaser. For a food sold at retail, the records may include the name of each person who purchased the food.

(b) A home food processor who produces a potentially hazardous food must maintain a record of the temperatures and times at which the food was cooked and stored.

SECTION 6. Chapter 211, Local Government Code, is amended by adding Subchapter D to read as follows:

SUBCHAPTER D. REGULATION OF HOME FOOD PROCESSOR OPERATIONS

Sec. 211.041. DEFINITIONS. In this subchapter, "home" and "home food processor" have the meanings assigned by Section 437.001, Health and Safety Code.

Sec. 211.042. CERTAIN ZONING REGULATIONS PROHIBITED. A municipal zoning ordinance may not prohibit the use of a home for home food processor operations.

Sec. 211.043. ACTION FOR NUISANCE OR OTHER TORT. This subchapter does not affect the right of a person to bring a cause of action under other law against an individual for nuisance or another tort arising out of the individual's use of the individual's home for home food processor operations.

SECTION 7. Chapter 231, Local Government Code, is amended by adding Subchapter N to read as follows:

SUBCHAPTER N. REGULATION OF HOME FOOD PROCESSOR OPERATIONS

Sec. 231.301. DEFINITIONS. In this subchapter, "home" and "home food processor" have the meanings assigned by Section 437.001, Health and Safety Code.

Sec. 231.302. CERTAIN ZONING REGULATIONS PROHIBITED. A county zoning ordinance may not prohibit the use of a home for home food processor operations.

Sec. 231.303. ACTION FOR NUISANCE OR OTHER TORT. This subchapter does not affect the right of a person to bring a cause of action under other law against an individual for nuisance or another tort arising out of the individual's use of the individual's home for home food processor operations.

SECTION 8. (a) Not later than December 1, 2017, the executive commissioner of the Health and Human Services Commission shall adopt rules to implement Sections 437.022 through 437.0223, Health and Safety Code, as added by this Act.

(b) The rules adopted under Subsection (a) may not include requirements or restrictions other than those specified in Sections 437.022 through 437.0223, Health and Safety Code, as added by this Act.

SECTION 9. This Act takes effect immediately if it receives a vote of two-thirds of all the members elected to each house, as provided by Section 39, Article III, Texas Constitution. If this Act does not receive the vote necessary for immediate effect, this Act takes effect September 1, 2017.