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In a couple of prior posts, I tackled the topic of “Cottage Foods.”  In them I gave particular attention to the actual wording of Arkansas’ Cottage Food law, along with its various amendments, to try and summarize what is and isn’t allowed for a non-licensed and non-inspected home-based cottage food operation to do it’s thing.

If you’re interested in going back and reviewing those posts, I’ll encourage you to do that.  Even though some of the information is now obsolete, understanding the history of the law and how things have gradually developed over time can be helpful.

To give my disclaimer, I’m no expert or final authority on this topic.  If you want the official word on any of this information, you can contact Arkansas’ Department of Health, or UofA’s Division of Agriculture.  I’m just a guy with a small homestead business who has partnered with his wife who loves working in the kitchen to make available to our customers some of her awesome culinary creations.   To ensure we aren’t breaking any laws in the process, I’ve sought to understand the law to the best of my ability as a layman.

A New Amendment:  "The Food Freedom Act"

In this post I want to update you on one more amendment that changes the law, and I should tell you it changes it quite extensively.  Actually, we had already seen some changes earlier this year (2021).  Back in March, we were given Act 306 that created new allowances for Cottage Food sellers.  Again, I already commented on that in a previous episode if you want to go back and hear it.  But then, the very next month during the same legislative session, we saw Act 1040 that has been named “the Food Freedom Act.”

Even though it’s technically just another amendment to the existing law, Arkansas’ Food Freedom Act changes things up so much that it’s being described as an all-out “replacement” to Arkansas’ Cottage Food law as it previously existed.  Honestly, when you take a look at the changes that have been made, I think the word “replacement” describes it pretty well, since the law reads completely different than it used to.

So, if it helps, you can go ahead and take everything you’ve been taught about cottage food laws in Arkansas up to this point and just toss it to the side.

Actually, that may not be completely fair to say.  You don’t need to throw away everything you know.  For example, we’re still categorically talking about “cottage foods.”  By definition, those are foods produced in a persons’ home and made available to a consumer but aren’t subject to licensing and inspection.  That’s in contrast to a formal “food service establishment” such as restaurants, food stores, food warehouses, food manufacturing centers, etc. that are subject to licensing and inspection.

Fundamentally, we’re still talking about exemption from licensing and inspection. Assuming they follow the prescribed rules, home based kitchens (or “cottage food operations”) are exempt.  For what it’s worth, they aren’t the only group that’s exempt because, while it’s probably a topic for another day, group homes and daycare centers serving 10 or less people; church potlucks and other group functions; farmers’ markets and roadside stands; maple syrup, sorghum, and honey producers; festival and special event vendors; and so forth—assuming they follow the right rules, all of those groups are exempt as well.

As it relates specifically to the rules a home-based kitchen is required to follow, under the prior “Cottage Food Law,” you may remember, I liked to organize things into three easy-to-understand parts, those parts being (1) the list of allowed items, (2) the labeling of those items, and (3) the locations they could be sold at.  So, “the list, the labeling, and the locations.”  I thought that was a pretty simple way to summarize it.

As I read through the new “Food Freedom Act,”  I’ll be honest and say the information isn’t as neatly organized or easy to put in a pretty little package.    That’s not to say I’m not happy with a lot of the content that’s in here.  Just that, when it comes to explaining the content, I think a little more effort is needed to make it understandable.

So, to try and wrap my mind around it all, what I’ve done is taken the liberty to develop another alliteration.  If we have to retire my old summary of the “list,” the “labeling,” and the “locations” that we had with the Cottage Food Law, we can summarize the new Food Freedom Act in terms of (1) its “design,” (2) it’s “definitions,” (3) it’s “dealing and distributing,” and (4) it’s “disclosures.”   That’s in addition to several “exemptions” and “preemptions” that also apply.

I’ll give those categories to you again:

• #1 – The intended “Design,” or Purpose of the law.
• #2 – The relevant “Definitions.”
• #3 – The rules of “Dealing and Distributing.”
• #4 – The required “Disclosures” to the customer, and
• #5 – Several exemptions and preemptions that apply.

I admit that’s not as nice and neat of a package as what we had before, but I’m willing to work with it because of so many of the improvements that have been baked into the cake, no pun intended.

Actually, if you separate the “definitions” and the “exemptions and preemptions” parts of the law and simply treat those as references or addendums to the rest of it, I think we could condense our summary down to just three parts to the law: (1) it’s intended design, (2) it’s rules of dealing and distributing, and (3) it’s required disclosures.

So, I’ve decided that’s how I want to explain it.

THE INTENDED DESIGN

To begin with the intended “design,” or purpose of the law, there is, I think, a primary motive or principle in which the entire legislation is built on and that can be seen in the cited title and official act description to the law, that title being the “Food Freedom Act” and being described as, “[An Act] to exempt certain producers of homemade food or drink products from licensure, certification, and inspection…”

Clearly the asserted word in the title is “freedom” and the key word in the description is “exempt.”  We’ve already established—and it’s a point I do try to emphasize in my other episodes—that the fundamental intent of the cottage food law as it was originally created is “exemption.”  That is to say, the intent has been to loosen much of the regulatory red tape hindering home based kitchens.  It hasn’t been to add more red tape.  There’s a lot of history there but. believe me, before we had the cottage food law, home based kitchens were subject to the same rules as any other food production operation.

And while the law loosened a lot of the red tape, many home food producers felt it could be loosened a lot more than it was, hence a lot of the amendments we’ve seen.  But now, with the Food Freedom Act, we’ve been given the greatest amount of wiggle room so far—so much so that “freedom” is now the apparent word of choice to describe it.

This is, after all, America.  And while we can appreciate the state’s desire to regulate and to protect us from killing ourselves and our customers with potentially hazardous foods, we don’t need a food police that micromanages us so much that we can only produce a very short list of allowed qualifying items, treating us much like children who are told they can only cook with child-friendly recipes or child-safety rated equipment.

Granted, we’re still prohibited from producing and selling potentially hazardous foods, but rather than restricting us to a “big brother” controlled list of what items the state deems safe for us to work with, the intent now is to educate us on what potentially hazardous foods are by definition—and, get this, it’s not just foods anymore but now drinks as well—for us to be able determine in our own judgement what qualifies as non-potentially hazardous and thus safe to make and sell.

So, rather than giving us a restricted list of approved items, the law now defines a list of established criteria of what potentially hazardous technically means.   I won’t go into all the details.  I do go into it in a previous episode.  Just to say, in the spirit of freedom, it’s now up to the home producer (and, I’d say it’s up to the consumer as well) to educate themselves on the technicalities of  what makes something “hazardous” or what makes something “safe,” and to proceed accordingly.  The point is personal responsibility.  You’ve got to do your homework.

To further emphasize the point, the law states,

“The purpose…is to allow for a producer’ production and sale of homemade food or drink products for an informed end consumer and to encourage the expansion of agricultural sales at farmers markets, ranches, farms, and producer’s homes or offices”

Notice the words “allow,” “informed,” “encourage,” “expansion;” later the law uses the words “facilitating,” “enhancing,” “providing.”  All of those words meant to steer your thinking away from thoughts such as “restricting,” “limiting,” “prohibiting.”  Right?  Again, freedom is the idea.

So, that’s the first part to mention.  The intended “design” and spirit of the law is freedom—it’s to further loosen (if not begin slashing entire pieces of) red tape still knotted around your home kitchen.

THE RULES OF
DEALING AND DISTRIBUTING

The second part to the Food Freedom Act I want to point out is what I’m calling the “dealing and distributing” aspect of the law which has to do with the actual transaction of a homemade food or drink product between the producer and consumer.

Under the former Cottage Food Law, transactions were originally limited to “direct in-person sales” only at a short list of permitted locations including the site the product was made, that being your home, or a farmer’s market, a county fair, or a special event.  That eventually expanded to pop-up shops and online platforms, and, during the social distancing COVID-era, a kind of presumed state allowance for points of distribution such as commuter lots or church parking lots.  In all those cases, the qualifier was still for sales to made “directly to an end consumer.”  “Directly” no longer meaning “in-person” necessarily, but presumably without the involvement of a third-party.

Now under the Food Freedom Act, all those same points of sale are still implied with even a few new places to go with them.  For example, the law talks about being allowed to set up an actual “retail space” on the ranch, farm, home, or premises where the food was produced.  I assume that could be as simple or fancy as you want to make it.  I know some folks who have converted entire rooms, additions, or outbuildings into little dedicated farm stores for their customers.  That’s allowed.

Also now allowed is the ability to sell “at a retail location of a third-party vendor of the homemade food or drink product.”  Now, I’ll be honest with you, though I’m totally excited about that one, I’m personally a little confused by it.  Because, the law also still explicitly states “a transaction [shall] be directly between the seller and the informed end consumer.”

That raises the question again.  What does a “direct sale” mean?  Well, as I’ve said earlier, it used to mean “in person”  only and then it seemed to imply “no third parties.”  Hence the rules that were applied to pop-up shops at unaffiliated established businesses where you could sell at a brick-and-mortar business, but not through the brick-and-mortar business.  That is to say, you were set up with your own little table on their premises while you were doing the selling.

But now, being allowed to sell “at a retail location” the law clarifies that can be done “by an agent of the producer, or a third-party vendor, including a retail shop or grocery store.”  That suggests you don’t have to be there at all.  And yet, the law also still states transactions must be made “directly between the seller and the informed end consumer.”  To me that’s a little confusing.

It only gets more confusing when you try to figure out what is meant not just by “direct sales” but what is meant by “end consumer.”  Because repeatedly the law talks about selling to “informed end consumers” and, by definition, an “end consumer” is a person who is “the last person to purchase [your] product” and “does not resell [your] product.”  Alright.  If that’s the case, how is the third-party vendor selling your products?  Are they buying your products wholesale and reselling retail?  I suppose if this is an exception to the rule they are.  Otherwise, I imagine this would be some sort of commission-based arrangement whereby sales are still your own, kept separate from the store sales, and cashed-out after the fact.  I will mention how the law says that if the storefront also sells food and drink item that are subject to license requirements, your homemade items must be kept visibly separate from the others in its own display and storage.  But, there again, it doesn’t say “sold separately” but simply “kept separately.”  So, I’d love more clarity on that.

I did notice in its summary on the Food Freedom Act, UofA’s Division of Agriculture does claim the law allows for homemade food and drink products to be sold to retail stores in order to be resold.   Though, if you look up the guidelines put out by the Arkansas Department of health, all it reiterates is that homemade products can be sold “to the informed consumer…by a third-party vendor.”  If you’re paying close attention to how that’s worded, you’ll notice that conveniently leaves off the word “end” in the phrase “informed end consumer.”  It also doesn’t say whether that means re-selling or simply selling on behalf of.  So, seriously, if anybody can give a clear answer and explanation on that, I know I’d appreciate it.

It does seem the entire ability to sell homemade products through a third-party vendor, including retail shops and grocery stores, regardless of how that arrangement is supposed to work, is understood to be an exception and exemption to the larger rule which states that formal food service establishments, which grocery stores obviously are, along with all the food and drinks they sell, are subject to licensing and inspection.  Hence why homemade products would need to be kept separately.

The point is, selling through third-party vendors is now allowed under the Food Freedom Act, as confusing as it is to me how that arrangement—how the transactions and bookkeeping—are meant to work.  Hopefully someone out there can help me better understand whatever it is I’m missing.

Well, in addition to the addition of selling through a retail space at your home or a third-party vendor, the law also mentions being able to make transactions over the phone and online.  The phone one is new, though we’ve already mentioned how online sales are also still allowed under the law.  That, of course, implies the use of payment gateways and shipping options to complete a transaction.  I talk about both of those things in an earlier episode if you want to go back and listen to that.  Just to say, when dealing with a phone or online order, though payments are typically made electronically, your goods are being transferred physically.  That’s going to take some form of delivery.  Under the new law, that delivery can be arranged either by yourself, your agent, your third-party-vendor, or a third-party carrier of your choice.  Most mail service carriers have rules pertaining to the shipment of foods, so you just need to read up on that.

If delivering locally or in the state, your options and rules should be straight forward.   However, if delivering outside the state, you no longer have to think about just Arkansas laws and your mail carrier’s rules, but as soon as you cross state lines, you have to now think about that state’s laws and any federal laws that govern interstate commerce.  Again, that’s something you need to read up on.

THE REQUIRED DISCLOSURES

The third and final part of the law I want to give attention to relates to the kind of information you are required to disclose to your customer and, furthermore, the kind of information your customer is expected to be aware of before deciding to buy your products.  This is another development in the language I think I can appreciate because that’s one of the things I remember wishing for in my original episode on all of this—namely, for the freedom to educate and equip both consumers and producers so they can make their own informed decisions on what to buy, sell, and ultimately eat.

The law qualifies the need for your end consumer to be an “informed” end consumer.  I take that to mean your customer holds some responsibility to educate themselves about your product before buying it.  If after you’ve disclosed everything they need to know about what you’ve made they decide they’d like to buy and try that, it’s totally their prerogative to do so.  The food police no longer needs to tell them they can’t.

Granted, before a consumer can educate themselves on everything they need to know, the producer must first thoroughly disclose all the information they need to know.  What information is that?

Well, according to the law, “the following information shall be provided to the informed end consumer.”  Five pieces of information are required:

1. The date the product was made.
2. Your name, address, and phone number, or an identification number provided by the Department of Agriculture if you’d rather your personal information be kept private.
3. The common or usual name of the product.
4. The ingredients of the product in descending order of predominance
5. The following statement: “This product was produced in a private residence that is exempt from state licensing and inspection. This product may contain allergens.”

If you’re dealing with a product where the pH level would be in question, a sixth piece of information you’d want to provide, assuming you’re not working with some kind of department approved or laboratory certified recipe, is a unique batch number to be marked on your product, and then records maintained for your own safekeeping of your batch numbers and the dates you made them, along with your pH testing results and recipe information.  Again, that’s only if it’s a product where pH levels are of concern.

Some of that other information was already required under the Cottage Food Law, while some of it is new and expanded.  But before getting too bent out of shape about the hassle of having to explain all of that, remember, this is actually what we want.  We want informed consumers.  Why do we want informed consumers?  We want informed consumers so they can make their own decisions without the state stepping in to make those decisions for them.

The big thing we need the customer to know is that what they are buying “is not regulated, inspected, certified, or subject to state packaging or labeling requirements” and “has not been processed in a facility that is subject to state licensing, permitting, inspection, or regulation.”  What they’re buying is homemade.  Let there be no false impressions.  That doesn’t mean your products shouldn’t be as professional and as high caliber as you can make them, or that your goal is to make it look obvious your product was slapped together in a home kitchen.  Show a little pride and make your products look as good as the professionals.  Just be sure you’re disclosing the fact that you’re not a professional.  The way you do that is to provide information already mentioned.

How are you going to provide that information?  The law gives several methods:

1. First, if your product is packaged or offered from a bulk container, a label with all that information needs to be placed on the package or the container and, if it is from a bulk container, a written print-off with the same information should be provided to the customer upon purchase.
2. Second, if your product isn’t packaged or offered from a bulk container, then a placard or sign with the needed information should be visibly displayed at your point of sale.
3. Third, if your product is offered online, the information needs to be included on the website page the product is sold on.

Disclosing to the consumer everything they need to know about your product in an easily accessible manner, and allowing them to decide if they want to buy or not, is all for the sake of promoting food freedom in Arkansas.

CONCLUSION

It may all seem like a more confusing set of requirements and criteria to have to worry with and wrap your mind around compared to the simplicity of the prior Cottage Food law, but I’m hopeful there can always be some clarifying future amendments to clean up the choppiness.

The great thing about Arkansas’ Food Freedom Act is that more freedom is being put into the hands of the home producer and consumer.  Obviously with greater freedom comes greater responsibility.  I think that translates to more steps on your part to educate yourself, to educate your customers, and to apply the needed steps to be a home-based food business that, though not licensed and inspected, is still professional and above par.

In a previous post, I gave a general overview of Arkansas’ Cottage Food law, including all the amendments we had seen up to that time in 2020.

As a reminder, when we talk about “Cottage Foods,” what we’re talking about are food items produced in a person’s home”  Or, more accurately, food items produced in a person’s home for the purpose of selling.

I explained how Arkansas’ Cottage Food law backstory perhaps first begins with the state’s landmark “Food, Drug and Cosmetic Act” of 1953, where, for the first time, the Health Department was granted authority to license and inspect all food establishments.  That presumably included home-based food establishments.

It wasn’t until 2011 that Arkansas passed its initial Cottage Food law exempting home-based producers from permit requirements.  In was a major loosening of a lot of the red tape placed on an entrepreneur’s home kitchen, though not a total removal of the red tape.  Essentially, the law maintained strict guidelines on the list of allowed items, the labeling of those items, and the locations those items are allowed to be sold at.

Later in 2017, the law was eventually amended to add chocolate-covered fruit and berries to the list of allowed items, as well as online farmers markets to the list of allowed locations to sell at.  It was amended again in 2019 to add “pop-up shops” to that list of allowed locations.

Then in 2020, though we didn’t see any new amendments to the law, we did see an interesting development with the rise of COVID-19 during a time of state-mandated social distancing.  That was a more flexible tone and a universal expectation for businesses to get creative in how their products exchange hands so as to not perpetuate the declared public health crisis.

I promised I would put out an update if there were any more changes to the law, and, sure enough, during the 2021 legislative session, Act 306 was passed, perhaps as a more formal solution for Cottage Food sellers in the wake of COVID-19.  The act included an “emergency clause” allowing the amendment to go into immediate effect upon its passage “for the preservation of the public peace, health, and safety.”  I take that to be a response to the difficult position home producers have been put it when factoring both (1) the strict requirements they’re already subject to, plus (2) whatever public health expectations are added on top of that.

The 2021 amendment finally added "the internet" to the list of allowed locations cottage foods can be sold.  Whereas online sales were earlier opened to farmers markets back in 2017, home businesses operating on their own were still limited to a short list of direct, in-person locations.  Now, online sales are open to everyone.  The exact wording of the new amendment specifies a cottage food production operation may offer it’s products directly to the consumer now:

“Through the internet if the sale from the cottage food production operation is directly to an end consumer located in: (A)  This state; or (B)  Another state if the cottage food production operation complies with all federal regulations regarding food safety.”

If I can just say, that’s great news!  If you remember, it’s something I even had on my wish list in my 2020 post.  The way I see it, this amendment is long overdue, not just because the public health crisis of 2020, but because of the rise of the digital age, oh, several decades ago!  In many ways, cottage food sellers have been required to keep their businesses stuck in 20^th century times, while everyone else has been given a 21-year head start to claim their stakes in 21^st century e-commerce world.

Granted, I still think word-of-mouth marketing and in-person interaction with a customer is always the best business plan, but there’s no question the convenience factor of online ordering is something today’s customers want, including those loyal, first-name basis customers.

To try and break down the law as it’s written and as best as I understand it—(and to plug in a disclaimer, I’m not an expert.  If you want the official word, you’ll need to make your own phone calls to Arkansas’ Department of Health)—

The law states cottage foods may now be offered to customers “through the internet if the sale…is directly to an end consumer…”

The first thing I’d point out about that wording is just how wide the door is open now to cottage food sellers online.  There isn't a crippling list of limits mentioned in connection with the phrase “internet.”  That must mean, all legitimate online platforms are open game.  Whether that’s your own website, or social media page, or some online marketplace site with a landing page dedicated to your business, etc.

The important qualifier that is mentioned is the fact your online sales must still be made “directly to an end consumer.”  Before this amendment, I would have interpreted a “direct" sale to mean an “in-person” transaction and exchange of products, especially since the list of allowed locations a individual cottage food seller could sell were all “in-person” locations.  However, because the nature of the internet isn’t in-person but digital, “direct” sales must simply mean no third-party brokers.

Therefore, whatever online platform you choose, just remember your cottage food sales need to happen directly.  Even if you’re selling through someone else’s website, the funds and products being transferred need to happen straight from the customer to a business, and a business to the customer.  It can’t be exchanged through a third party.

The law goes on to specify where a customer can be located to order your cottage foods online.  That list first includes “[The state of Arkansas].”No qualifiers are placed on that.  Any online order placed in the state is allowed.

The list also includes “[Any other state] if in [compliance] with all federal regulations regarding food safety.”  That opens the door to out-of-state orders, though the obvious qualifier is if you’re in compliance with federal rules.

Ordinarily, every individual state governs it’s own cottage food laws.  However, once you cross the state line, your online orders enter federal jurisdiction and are subject to federal rules.

How do you know if you’re in compliance with federal rules?  For those answers you would need to check with the United States Food and Drug Administration (or “FDA”).  Specifically, you might check the FDA’s “Food Code,” most recently updated in 2017 at the time I’m recording this.  Just keep in mind, because cottage food requirements are generally left to individual states to determine, you’re not going to find explicit federal provisions addressing cottage foods, at least, not to my knowledge.

I did notice that the Food Code excludes private home kitchens from its list of “Food Establishments” subject to licenses, training, permits, and inspection.  However, when talking about private home kitchens, the Food Code only refers to them in relation to their use of in-person sales, such as at a church bake sale.  So, there’s no clear category for a cottage food operation that engages in internet sales, let alone internet sales across state lines, or what is referred to as “interstate commerce.”  You can do your own reading to see if you find anything different.

If you don’t find what you’re looking for in the FDA’s Food Code, you can try looking into “Title 21 on Food and Drugs” in the Code of Federal Regulations (or “CFR”).  I’ll just admit to you, when it comes to federal rules, I’m not going to be much good in helping you narrow down your research to find the most relevant factors to consider.  Perhaps someone reading this who has more experience than me can comment on what we need to know.

The only other thing I would mention when talking about internet sales, whether that’s within your state or across state lines, is the implication that (#1) payments are being transferred electronically, and (#2) goods are being transferred physically.

In terms of receiving payments, most e-commerce platforms are going to use some kind of online “payment gateway.”  That could be Paypal, Stripe, Square, Braintree, or some other Credit Card  payment solution.  Just remember, when processing cards online, there usually is a transaction fee to go along with it.  You’re paying for the service and the convenience of receiving payments online.  It’s all making things easier for your customers—and, in many ways, it can make things a lot easier for your small business too.

In terms of getting the goods into your customers hands, there are also different options to choose from.  If we’re talking about online sales made to customers within Arkansas, I think it’s understood your options would be three-fold—those being, “pickup,” “delivery,” or “shipping.”  Again, I’m making some assumptions here based on how internet sales are usually handled.

I imagine reasonable pickup locations would include that short-list of allowed locations already outlined in the law, namely (1) your home, (2) a farmer’s market, (3) a county fair, (4) a special event, or (5) a pop-up shop.  I talk about those in my other post.  It makes sense to me, if you’re already set up in those spots for in-persons sales why you can’t turn those spots into a pickup location if an order comes in online.

I believe delivery is another reasonable way to fulfill online orders, whether that’s “at-home delivery,” or delivery at established “points-of-distribution” such as a commuter lot or a church parking lot.  I don’t see why that wouldn’t be allowed under an internet sale approach.

Shipping is probably the most obvious way online orders are fulfilled, especially for out-of-town and out-of-state customers.  Since you’re shipping food, you’ll just need to check on what your mail services’ packaging requirements are for sending food through the mail.  I know the  United States Postal Service has a page on its website with a section all about food shipments.

I think the important rule-of-thumb to comply with in a shipping company’s rules, your state’s cottage food laws, or any federal rules (if you’re shipping across state lines) is the avoidance of your items being deemed hazardous.  That’s something you should think about before your cottage foods leave your door, but it’s also something you need to think about while your cottage foods are in transit.   Ask yourself the question, in whatever packaging or shipping methods you use, will your items remain safe for the customer?  That's the important question.

To wrap this up, I think the 2021 amendment is a wonderful addition to the law.  Amy and I have already started making updates to our website to allow for online payments on our cottage food items.  If you want to see how we do it, you can visit us at www.thekinnardhomestead.com/products.

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