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One of the things we had to learn about when we first got started homesteading were all the different rules and regulations pertaining to the things we can or cannot legally do, or the things we can or cannot legally sell, being a home-based business.
When we first started out, Amy and I had so many plans, so many ideas, and so many options in terms of things we had the ability to produce, and were confident we’d be successful in marketing and selling, only to have a wet blanket thrown on a lot of our ambitions when we finally saw all the red tape that our state laws apply in this area.
It was a big snap back to reality when we realized there are several rules to follow when it comes to selling eggs, meat, produce, and baked goods. Sometime, I may comment on what some of Arkansas’ rules are for things like eggs, meat, and produce. In this post, though, I simply want to address the law regarding what are generally known as “Cottage Foods.” Simply defined, Cottage Foods are “food items produced in a person’s home.
We live in Arkansas, so if you live in a different state you need to look up what the laws are where you live. While Arkansas isn’t the most restrictive state when it comes to Cottage Foods, I know it’s not the most accommodating either, so do your own research and keep a pulse on your own state legislature.
To be clear, I’m not a lawyer or a state official. If you want the “final word” on anything on this subject, please contact the experts. If you need specific questions answered, you can call the Arkansas Department of Health, or even the UofA Division of Agriculture.
I can share with you the basics of what I understand about Arkansas’ Cottage Food laws, as I’ve tried to familiarize myself with them. I titled this with the description “2020 edition,” even though the most recent change to the law happened in 2019. As far as I know, there hasn’t been any changes to the law since then. But, still, I’m using the title 2020 because that’s the year I’m posting this, and because I want to give you an overview of the law up to the present day.
At the end of this post, I will share with you one interesting development that has come up in 2020 with the rise of COVID-19. Though it isn’t an official change to the law, it is certanily a more flexible tone coming from one of the prominent voices on Cottage Food expectations in Arkansas.
The Food, Drug and Cosmetic Act of 1953
For an overview of Cottage Food laws in Arkansas, it may help to turn back the clock before 1953, when opportunities to sell homemade products looked a lot different. At the time, there were far less restrictions than there are today. Entrepreneurs were given a wide berth to do as they pleased.
Granted, in those days, opportunities for foodborne illnesses were also a lot more widespread. Illnesses like Norovirus, Salmonella, E. coli, Listeria, and Clostridium botulism were all more commonplace when food makers could get away with making, preserving, transporting, and selling their food products any way they saw fit.
All of that was the case until Arkansas passed “Act 415” known as the “Food, Drug and Cosmetic Act” in 1953. For the first time, the Health Department was granted authority to license and inspect all food establishments—presumably including home-based food establishments.
This landmark law resulted in an immediate improvement in Arkansas’ public health and life expectancy rates. In that sense, the new regulations were understandable and appreciated. As a customer, you’re able to enjoy your meal a lot better knowing that what you’re eating is safe and is unlikely to kill you.
The negative side to it, though, in my view, is that whenever the state enforces safety, it inevitably strips away some freedom. Benjamin Franklin and other founding fathers warned us about that. While the 1953 food law did improve health and safety, it also made things a lot harder for entrepreneurs to do business, especially when many of the regulations were more precautionary than they are necessary.
Personally, I can see the need for certain standards and practices, though in a perfect world, or even in just a free world, my preference would be, rather than forcing these things, to find a better way to educate and equip consumers and producers, allowing them to make some of their own decisions in this area. It makes me a little uncomfortable thinking we’ve created a “food police” who can tell us what we can or can’t eat.
Regardless of the pros and cons, Arkansas’ food act was established.
The Cottage Food Law of 2011
Years later, in 2011, the Arkansas Legislature eventually passed “Act 72,” which finally exempted “cottage food operations, farmers’ markets, and other similar food sale entities” from permit requirements. This was a big relief to home business owners, because the act defined “cottage food operations” as any person who “produces food items from their home that aren’t potentially hazardous.”
The Cottage Food law was a big step in the state’s removal of a lot of the red tape it had placed over an entrepreneur’s home kitchen. It wasn’t a total removal of the red tape, though, because the list of items it was permitted to make and sell had its limits. The law restricted the list of qualifying food items to include:
(1) Bakery products;
(2) Candy;
(3) Fruit butter;
(4) Jams;
(5) Jellies; and
(6) Similar products specified in rules adopted by the Department of Health.
As I stated earlier, there are also rules and allowances for items such as Eggs, Meat, and Produce, as well as things like Maple Syrup, Sorghum, and Honey, etc. I’m leaving all of those out of this discussion, though, because, while all of them are things that are home-produced, there are a few nuances that I feel put them in a slightly different category than the basic “Cottage Foods” list above.
Regarding the basic Cottage Food list, the limit is on food items that aren’t “potentially hazardous.” How do you define what is “potentially hazardous”? Well, for that you must go to the Department of Health, who define potentially hazardous foods, at least on a starting level, as any food that requires refrigeration or heat to remain safe.
That, of course, comes as a huge disappointment to us because, naturally, one of my wife’s specialties is her homemade pies, and cheesecakes, and all her goodies with cream cheese frosting, which all require time in the fridge. She also has a knack for hot-and-ready meals like lasagnas, and chicken pot pies, and other homemade dinners that we know would be popular were it not for this rule. So, unless you get a permit, you can’t sell things are time and temperature controlled, or what is commonly referred to “TCS” (time and temperature controlled for safety) items.
Related to TCS restrictions, you also can’t use artificial sugars in your canned jams and jellies because of how those artificial sugars are understood to react in room temperature storage.
Speaking of home canning, most of what you can at home probably doesn’t qualify as a Cottage Food, not because of TCS requirements but because of the essential conditions needed to kill bacteria in the canning process. For those who aren’t familiar, it’s important to understand there are two general types of canning. The first is what’s called “water bath canning,” which, through the process of simple boiling, is used to process and preserve your more naturally high in acid foods.
The other canning method is called “pressure canning,” which can reach higher temperatures, making it ideal for your lower-acid foods. All of that is important because the higher the acid level, the easier it is to kill off any bacteria. It also helps if the moisture content is low. pH levels are also important. Hence, why jams and jellies are allowed on the list, but why your canned soups and vegetables aren’t. Arkansas also doesn’t allow acidifying agents, so if it’s not naturally high in acid, you can pretty much rule it out.
So, the list the law outlines is the list you’re limited to.
Other factors in the law include not only what you can sell, but how you label it and where you can sell it
In terms of labeling, every Cottage Food item you’re wanting to sell has to include on its packaging the following 4 things:
(1) the name of the product,
(2) the product’s ingredients,
(3) your name and address, and
(4) the words “this product is home produced” in a 10-point font.
The other thing to remember is you can’t make any nutritional, health-benefit claims on labeling.
In terms of locations you can sell your items, according to the old 2011 law, your options are either:
(1) from your home,
(2) a farmers’ market,
(3) a county fair, or
(4) a special event.
Similar to the limits placed on what you can sell, Arkansas has pretty strict limits you in where you can sell it.
Everything covered up to this point is a basic summary of Arkansas’ Cottage Food law, as it was enacted in 2011. If it helps you remember, you can think of it in 3 simple parts: (1) the list of allowed items, (2) the labeling of those items, and (3) the locations they can be sold at.
The 2017 Amendment
A few years later, in 2017, an amendment to the 2011 law was eventually made under “Act 399,” which added one more thing to the list of products you’re allowed to sell. That item was “Chocolate-covered fruit and berries that are not cut.” Just remember, if you poke a stick or toothpick in those berries it’s no longer classified as “uncut.”
For berry growers and chocolate lovers out there, this amendment was great news. Honestly, the addition is good news for all Cottage Food sellers, because even if your business doesn’t sell uncut fruits, to see a loosening of restrictions anywhere on the list is a good omen for all of us. Hopefully, it’s a sign more things will eventually be added to the list someday.
Personally, Amy and I are holding out hope that things like salsas will one day be found worthy to sell from home. My wife can make some good salsa. And not just salsa, but there is so much more she’s good at making that would be wonderful to share with customers if only they were on the list. I know many of you home business owners can relate to that.
The other thing the 2017 amendment did was add to the list of locations you’re allowed to sell at to include “online farmers markets.” Here again, this is another great development, particularly, for farmers’ markets and those who sell through a farmer’s market since so many consumers do their shopping online these days.
For Cottage Food sellers who don’t sell through a Farmer’s Market, the amendment doesn’t change things much. In fact, it probably makes things a little worse, because while you still have to conduct business by direct-sale-only methods, Farmers Markets can now attract a much larger customer base (perhaps even stealing away some of your customers) because of the convenience factor incentivizing them to shop online with them instead of the hassle of having to meet up in person with you.
On this point, I’ll go ahead and share with you how we’ve gotten creative, having a desire to tap into an online customer base without using a Farmer’s Market, while still complying with Arkansas law. You have to get creative. Again, as a disclaimer, I’m not a lawyer (even though I did speak with one before trying this), so don’t take my word for it. You need to do your own research.
What we’ve done is gone ahead and created a catalog on our website of all our products, without using an online farmer’s market, but we’ve limited it strictly to marketing purposes, at least for our Cottage Food items.
Instead of allowing customers to complete their transactions on our site—(note: according to the law as it’s enforced by the ADH, the restriction is on “internet sales,” and my understanding of a “sale” is defined by a formal transaction)—our customers submit tentative “requests” for an item. We then follow-up with them to arrange for the whole required “direct, in-person sale.”
Would it be easier to complete our sales online? Absolutely it would. Unfortunately, that’s not what the law allows us to do, so a “marketing/submit-your-interest” setup is the best we can come up with short of doing the online farmer’s market. I imagine it’s no different than advertising on social media, letting people respond to that, and working out a time to meet up in person.
For those who can take advantage of the online farmer’s market, the 2017 amendment is great.
The 2019 Amendment
After 2017, the most recent amendment that we’ve seen is the 2019 amendment (under “Act 775”) which adds to the list still one more location Cottage Foods can be sold, namely “Pop-up shops.”
What is a pop-up shop? According to the Act, a pop-up shop is:
“…a cottage food production operation selling items in an unaffiliated established business for a limited time period with the consent of the owner of the unaffiliated established business and the owner or employee of the cottage food production operation being present at the point of sale.”
In other words, a “pop-up shop” is you selling your stuff on-location at some other business, with their permission, and with your business’ direct participation, for a limited time.
The 2019 addition of pop-up shops, in my opinion, is even greater news for Cottage Food sellers than the 2017 amendment, for the simple fact that it probably helps out a far larger number people than the other changes. With pop-up shops, anyone can setup practically anywhere, assuming that location is its own brick-and-mortar business. I’m assuming brick-and-mortar is what they mean by “established.”
The exact wording of the law is “unaffiliated established business.” I take that to mean “any brick-and-mortar business that isn’t your own.” Folks, that gives you a lot of options.
Sales at pop-up shops still have to be made directly. You’re not selling through the business. You’re just selling at the business.
The other thing you need to know is by running a pop-up shop, the law states you open your home kitchen up to inspection by the department of health, should they require it—which, in my opinion, is a bit of a contradiction to the original law exempting a Cottage Foods Production Operation from permit requirements in the first place. Regardless, if you want to run a pop-up shop, you accept the strings that come along with it.
All of that is a broad overview of Arkansas’ Cottage Food law up to 2019.
I promised I’d share one other interesting development that has come up in 2020 with the rise of COVID-19, that being the shut down and limited access to many farmer’s markets throughout the state. I imagine even for those who rely on the use of pop-up shops, fairs, other special events, or even setting up from their own home are experiencing a major hit in customer traffic.
I haven’t seen all the guidelines for special arrangements coming out from those in charge, but I did see an article put out by UofA’s Division of Agriculture that speaks to the issue. In my opinion, it provides a much needed easing of conscience when it comes to trying to balance a strict “letter of the law” v. “spirit of the law” approach to compliance.
The article, written back in March, put it this way, :
“[Another] pressing issue may be access to a market or selling your items. Most communities have shut down their farmers’ markets or limited sales because of the prohibition on more than 10 people gathering. Right now is not the best time to invite customers to your home either.
If you feel compelled to continue your Cottage Food sales, consider using online advertising and create points of distribution for pick up with customers for a specific time.”
Kristin Higgins, Mar. 31, 2020
“Selling Cottage Food During A Pandemic”
Arkansas Division of Agriculture
Notice closely how that was worded: “consider using online advertising” (that goes back to the strategy I mentioned before) and “create points of distribution for pick up.” I presume that to mean “…in addition to (or other than) your home, a farmers’ market, a county fair, a special event, or a pop-up shop.” I presume that could be the use of a commuter lot, or your church parking lot, or a curb-side pickup option to make your direct-sales and handoffs.
Obviously, that’s not the law as it’s written. I’m sure the article’s author knows that, but there’s an acknowledgement these are unusual times and there’s got to be some flexibility. Just don’t push your luck. We all still obey the law as closely as we can if we want to stay out of trouble. COVID-19 will eventually go away. When that happens, I’m hoping the right people can seek more permanent changes in the law to provide greater allowances.
My personal wish list would include more allowed items to sell and more allowed locations to sell them at. In fact, I’d be happy if UofA’s “points-of-distribution” idea was the norm. If nothing else, what I really would like is the ability to complete actual transactions online with my customers rather than just making arrangements for direct-sales, which is no guarantee of a sale since customer’s can often change their mind when they realize the hoops they have to jump through to pick up their item.
Oh, the joys of balancing public safety and personal freedom!
If there are any changes in Arkansas’ Cottage Food law, I’ll try to put out an update
