By: VanDeaver, et al. (Senate Sponsor - Kolkhorst) H.B. No. 644
         (In the Senate - Received from the House May 6, 2019;
  May 7, 2019, read first time and referred to Committee on Health &
  Human Services; May 19, 2019, reported adversely, with favorable
  Committee Substitute by the following vote:  Yeas 9, Nays 0;
  May 19, 2019, sent to printer.)
Click here to see the committee vote
 
  COMMITTEE SUBSTITUTE FOR H.B. No. 644 By:  Campbell
 
 
A BILL TO BE ENTITLED
 
AN ACT
 
  relating to the regulation of cottage food production operations.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Section 437.001, Health and Safety Code, is
  amended by adding Subdivisions (1) and (3-c) and amending
  Subdivision (2-b) to read as follows:
               (1)  "Acidified canned goods" means food with a
  finished equilibrium pH value of 4.6 or less that is thermally
  processed before being placed in an airtight container.
               (2-b)  "Cottage food production operation" means an
  individual, operating out of the individual's home, who:
                     (A)  produces at the individual's home, subject to
  Section 437.0196:
                           (i)  a baked good that is not a time and
  temperature control for safety [potentially hazardous] food, as
  defined by Section 437.0196;
                           (ii)  candy;
                           (iii)  coated and uncoated nuts;
                           (iv)  unroasted nut butters;
                           (v)  fruit butters;
                           (vi)  a canned jam or jelly;
                           (vii)  a fruit pie;
                           (viii)  dehydrated fruit or vegetables,
  including dried beans;
                           (ix)  popcorn and popcorn snacks;
                           (x)  cereal, including granola;
                           (xi)  dry mix;
                           (xii)  vinegar;
                           (xiii)  pickled fruit or vegetables,
  including beets and carrots, that are preserved in vinegar, brine,
  or a similar solution at an equilibrium pH value of 4.6 or less
  [pickles];
                           (xiv)  mustard;
                           (xv)  roasted coffee or dry tea; [or]
                           (xvi)  a dried herb or dried herb mix;
                           (xvii)  plant-based acidified canned goods;
                           (xviii)  fermented vegetable products,
  including products that are refrigerated to preserve quality;
                           (xix)  frozen raw and uncut fruit or
  vegetables; or
                           (xx)  any other food that is not a time and
  temperature control for safety food, as defined by Section
  437.0196;
                     (B)  has an annual gross income of $50,000 or less
  from the sale of food described by Paragraph (A);
                     (C)  sells the foods produced under Paragraph (A)
  only directly to consumers [at the individual's home, a farmers'
  market, a farm stand, or a municipal, county, or nonprofit fair,
  festival, or event]; and
                     (D)  delivers products to the consumer at the
  point of sale or another location designated by the consumer.
               (3-c)  "Fermented vegetable product" means a low-acid
  vegetable food product subjected to the action of certain
  microorganisms that produce acid during their growth and reduce the
  pH value of the food to 4.6 or less.
         SECTION 2.  Section 437.0193, Health and Safety Code, is
  amended by adding Subsection (d) to read as follows:
         (d)  A cottage food production operation that sells frozen
  raw and uncut fruit or vegetables must include on the label of the
  frozen fruit or vegetables or on an invoice or receipt provided with
  the frozen fruit or vegetables when sold the following statement in
  at least 12-point font:  "SAFE HANDLING INSTRUCTIONS: To prevent
  illness from bacteria, keep this food frozen until preparing for
  consumption."
         SECTION 3.  Section 437.0194, Health and Safety Code, is
  amended to read as follows:
         Sec. 437.0194.  CERTAIN SALES BY COTTAGE FOOD PRODUCTION
  OPERATIONS PROHIBITED OR RESTRICTED.  (a) A cottage food
  production operation may not sell any of the foods described in
  Section 437.001(2-b)(A)[:
               [(1)  through the Internet;
               [(2)  by mail order; or
               [(3)]  at wholesale.
         (b)  A cottage food production operation may sell a food
  described by Section 437.001(2-b)(A) in this state through the
  Internet or by mail order only if:
               (1)  the consumer purchases the food through the
  Internet or by mail order from the operation and the operator
  personally delivers the food to the consumer; and
               (2)  before the operator accepts payment for the food,
  the operator provides all labeling information required by Section
  437.0193(d) and department rules to the consumer by:
                     (A)  posting a legible statement on the
  operation's Internet website;
                     (B)  publishing the information in a catalog; or
                     (C)  otherwise communicating the information to
  the consumer.
         SECTION 4.  Chapter 437, Health and Safety Code, is amended
  by adding Sections 437.01951 and 437.01952 to read as follows:
         Sec. 437.01951.  REQUIREMENTS FOR SALE OF CERTAIN COTTAGE
  FOODS. (a)  A cottage food production operation that sells to
  consumers pickled fruit or vegetables, fermented vegetable
  products, or plant-based acidified canned goods shall:
               (1)  use a recipe that:
                     (A)  is from a source approved by the department
  under Subsection (d);
                     (B)  has been tested by an appropriately certified
  laboratory that confirmed the finished fruit or vegetable, product,
  or good has an equilibrium pH value of 4.6 or less; or
                     (C)  is approved by a qualified process authority;
  or
               (2)  if the operation does not use a recipe described by
  Subdivision (1), test each batch of the recipe with a calibrated pH
  meter to confirm the finished fruit or vegetable, product, or good
  has an equilibrium pH value of 4.6 or less.
         (b)  A cottage food production operation may not sell to
  consumers pickled fruit or vegetables, fermented vegetable
  products, or plant-based acidified canned goods before the operator
  complies with Subsection (a).
         (c)  For each batch of pickled fruit or vegetables, fermented
  vegetable products, or plant-based acidified canned goods, a
  cottage food production operation must:
               (1)  label the batch with a unique number; and
               (2)  for a period of at least 12 months, keep a record
  that includes:
                     (A)  the batch number;
                     (B)  the recipe used by the producer;
                     (C)  the source of the recipe or testing results,
  as applicable; and
                     (D)  the date the batch was prepared.
         (d)  The department shall:
               (1)  approve sources for recipes that a cottage food
  production operation may use to produce pickled fruit or
  vegetables, fermented vegetable products, or plant-based acidified
  canned goods; and
               (2)  semiannually post on the department's Internet
  website a list of the approved sources for recipes, appropriately
  certified laboratories, and qualified process authorities.
         (e)  The department shall develop and implement a process by
  which an individual may request that the department approve an
  additional source for recipes under Subsection (d). The process
  must allow an individual to submit with the individual's request
  documentation supporting the request.
         (f)  A source for recipes approved by the department under
  Subsection (d) must be scientifically validated and may be from a
  government entity, academic institution, state extension service,
  or other qualified source with:
               (1)  expert knowledge of processing requirements for
  pickled fruit or vegetables, fermented vegetable products, or
  acidified canned goods; and
               (2)  adequate facilities for scientifically validating
  recipes for pickled fruit or vegetables, fermented vegetable
  products, or acidified canned goods.
         (g)  This section does not apply to pickled cucumbers.
         (h)  For purposes of this section, "process authority" means
  a person who has expert knowledge acquired through appropriate
  training and experience in the pickling, fermenting, or
  acidification and processing of pickled, fermented, or acidified
  foods.
         Sec. 437.01952.  REQUIREMENTS FOR SALE OF FROZEN FRUIT OR
  VEGETABLES. A cottage food production operation that sells to
  consumers frozen raw and uncut fruit or vegetables shall:
               (1)  store and deliver the frozen fruit or vegetables
  at an air temperature of not more than 32 degrees Fahrenheit; and
               (2)  label the fruit or vegetables in accordance with
  Section 437.0193(d).
         SECTION 5.  Section 437.0196, Health and Safety Code, is
  amended to read as follows:
         Sec. 437.0196.  TIME AND TEMPERATURE CONTROL FOR SAFETY 
  [POTENTIALLY HAZARDOUS] FOOD; PROHIBITION FOR COTTAGE FOOD
  PRODUCTION OPERATIONS; EXCEPTION.  (a)  In this section, "time and
  temperature control for safety ["potentially hazardous] food"
  means a food that requires time and temperature control for safety
  to limit pathogen growth or toxin production.  The term includes a
  food that must be held under proper temperature controls, such as
  refrigeration, to prevent the growth of bacteria that may cause
  human illness.  A time and temperature control for safety
  [potentially hazardous] food may include a food that contains
  protein and moisture and is neutral or slightly acidic, such as
  meat, poultry, fish, and shellfish products, pasteurized and
  unpasteurized milk and dairy products, raw seed sprouts, baked
  goods that require refrigeration, including cream or custard pies
  or cakes, and ice products.  The term does not include a food that
  uses time and temperature control for safety [potentially
  hazardous] food as ingredients if the final food product does not
  require time or temperature control for safety to limit pathogen
  growth or toxin production.
         (b)  Except as otherwise provided by this chapter, a [A]
  cottage food production operation may not sell to consumers time
  and temperature control for safety [customers potentially
  hazardous] foods.
         SECTION 6.  As soon as practicable after the effective date
  of this Act:
               (1)  the executive commissioner of the Health and Human
  Services Commission shall adopt rules as necessary to implement the
  changes made by this Act; and
               (2)  the Department of State Health Services shall
  approve sources for recipes for pickled fruit or vegetables,
  plant-based acidified canned goods, and fermented vegetable
  products and post a list of sources, appropriately certified
  laboratories, and qualified process authorities on the
  department's Internet website as required by Section 437.01951,
  Health and Safety Code, as added by this Act.
         SECTION 7.  This Act takes effect September 1, 2019.
 
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