Food Safety

Disclaimer: The Sustainable Economies Law Center provides periodic updates to this site, however, information presented may be out of date. We encourage you consult with a professional before taking action based on the information here.

 

This page provides information about federal and state agricultural, health, and safety regulations affecting commercial urban farm operations. The section is organized according to the type of agricultural product you would like to sell.

TIP: This section includes many links to other useful and informative websites; please visit these links to deepen your understanding of the regulatory issues surrounding your particular urban farming operation.

Background Information

Before you delve further into the contents of this section, you may want to explore some outside sources for background information regarding the various legal issues surrounding urban farming. In general, you will find that the smaller and simpler your urban farming operation, and the more directly you market your product to consumers, the fewer agricultural, health and safety regulations you will encounter. For instance, if you sell tomatoes to your neighbors right from your home (if allowed by your local zoning ordinances), you should encounter fewer regulations than if you were to make salsa from your tomatoes for wholesale distribution. The difference here is between raw produce and value-added products and direct-to-consumer versus wholesale.

How to Legally Sell Unprocessed Produce

Food safety regulators do not consider fruits and vegetables to be processed if they have merely been washed and refrigerated, or if they have merely had their leaves, stems, and husks removed. However, the moment a fruit or vegetable has been sliced, cooked, frozen, or mixed with other ingredients, it has been “processed” under the law.

Federal Regulations

Most federal regulatory activity surrounding the selling of fruits and vegetables lies with the Food and Drug Administration (FDA), under authority granted by the Federal Food, Drug, and Cosmetics Act (FDCA). Traditionally, the FDA has been concerned primarily with fruits & vegetables that travel in interstate commerce (i.e., fruits and vegetables that are sold and/or transported across state lines); however, FDA authority has been greatly expanded through the Bioterrorism Act of 2002 and the Food Safety Modernization Act (FSMA) of 2011.

●   FDA/Federal Food, Drug, and Cosmetics Act

●   FDA/Food Safety Modernization Act (FSMA)

Under these two Acts of Congress, FDA may address the threat of contamination of the food supply by imposing produce safety standards, as well as registration, recordkeeping, hazard-prevention, and inspection requirements on various food producers. The good news is that these new requirements do not apply to most urban farming operations. And the FSMA provides exemptions from most of its requirements to farms with: (1) less than $500,000 in annual gross sales; and (2) more than half of the product sold to “qualified end users,” defined as consumers and restaurants or retailers (not including wholesalers or distributors) either in-state or within 275 miles of the farm or facility.

FDA also shares some of the health and safety regulation of fruits and vegetables with the Federal Environmental Protection Agency (EPA). EPA is authorized (under the Federal Food, Drug, and Cosmetics Act) to set tolerance levels for pesticides on and in foods. While regulatory testing of the pesticide levels on unprocessed fruits and vegetables is unlikely, it is a good practice (for obvious reasons) to limit pesticide use as much as possible, and to limit pesticide residues by thoroughly washing produce. There are several ways farmers can determine the tolerance levels for pesticides they are using: (1) look up the pesticide in the Code of Federal Regulations (CFR) (40 C.F.R. Part 180); (2) visit the EPA website (http://www.epa.gov/opp00001/food/viewtols.htm); (3) read the pesticide’s label; and/or (4) contact your state’s Department of Pesticide Regulation.

Please note that even if your unprocessed fruit and vegetable sales operation might be exempt from some or all federal regulation, it still might be subject to regulation by state and local agriculture and/or health departments.

●   Cornell/USDA/FDA Produce Safety Alliance website

●   USDA/FamilyFarmed.org On-Farm Food Safety Project (online tool to help farmers create customized food safety plans) pdf

● Your State University’s Cooperative Extension program

State and Local Regulations

Much state regulation will also be based on state food and agriculture regulations other than those listed in a state’s food code. While state food codes are primarily focused on health and safety surrounding retail sales of food products, other state food and agriculture laws may focus more on health and safety matters surrounding production, shipping, handling, storage, and processing of food products. These activities may be addressed in state food codes, health codes, agriculture codes, etc., and permits and licenses may be required for these activities. Furthermore, state and local regulatory officials often make judgment calls in deciding whether these licensing and/or permit requirements apply to a particular operation. Therefore, whatever your urban farming activity, it is important that you seek guidance from your state and local agriculture and health department (e.g., visit the website, write to a local health department official) to see what licensing and permit requirements apply.

49 out of the 50 states in the U.S. have adopted food codes patterned after one of the five versions of the Food Code, beginning with the 1993 edition; North Carolina is the only outlier, relying instead on a 1976 Model Foodservice Code. However, some states have made substantial revisions.

Most state food code regulations apply to retail food operations, often referred to “food establishments” or “food facilities. Urban farmers who direct market their products will want to pay special attention to food code regulations regarding “farm stands,” “retail farm stands,” and “farmers’ markets.”

●   USDA National Agricultural Library/Consumer Supported Agriculture website

●   University of California Cooperative Extension/Local & Organic FAQs website

●   From Alabama to Wyoming: Farm Stands in All 50 States website

● Also see our other Food Resources.

How to Legally Sell Value-Added Products

As noted above, urban farmers who merely sell unprocessed fruits and vegetables face significantly fewer regulations than those selling fruits and vegetables that have been either minimally processed (e.g., sliced, cooked, frozen) or used to create value-added products such as dried, canned, and jarred goods, as well as fruits and vegetables pressed into a juice or other beverage.

Federal Regulations

As noted in the “How to legally sell unprocessed fruits & vegetables” section, there is very little, if any, FDA regulation of urban farming operations that sell unprocessed fruit & vegetables locally, in relatively small amounts, and directly to consumers, restaurants, and retailers. However, once the urban farm begins processing fruits & vegetables on-site, the regulatory requirements increase. For instance, while FDA does not require a private home to register as a “food facility” under the Bioterrorism Act, any foods processed for sale inside that private home must still meet federal, state, and local food safety requirements. Likewise, while a farm that sells unprocessed fruits and vegetables directly to consumers may not have to register with FDA under the Bioterrorism Act, a farm that also engages in on-site processing of fruits & vegetables for sale must register as a “mixed-type facility.”

●   FDA/Guidance for Industry: Questions and Answers Regarding Registration of Food Facilities website

Furthermore, an urban farming operation that processes food on-site may be subject to other regulatory requirements by FDA under the Food Safety Modernization Act (FSMA). As noted above, the FSMA provides exemptions from most of its requirements to farms with: (1) less than $500,000 in annual gross sales; and (2) more than half of the product sold to “qualified end users,” defined as consumers and restaurants or retailers (not including wholesalers or distributors) either in-state or within 275 miles of the farm or facility. Nevertheless, urban farms that are involved in food processing activities may still be subject to FDA inspections to monitor whether the facility has identified potential hazards and is implementing preventive controls.

Tester/Hagan Amendment to the Rescue!

Under the Tester-Hagan amendment to the FSMA, an urban farm may act as a “retail food establishment”—defined as a processing facility that sells more than half of its products direct to consumers—and avoid most FDA regulation altogether. And Tester-Hagan is fairly liberal in its definition of “direct to consumer,” allowing sales to fit under that category if they occur on the farm itself, at a farmers’ market, or at local stores or restaurants that purchase from the farm. However, please note that sales to wholesalers and/or distributors do not qualify as “direct to consumer” sales.

●   New England Farmers Union/The FDA Food Safety Modernization Act: What do the new laws mean for small farms and food producers? website

Even if your fruit and vegetable processing operation might be exempt from federal inspection, it is still likely to be subject to regulation by state and local agriculture and/or health regulations. And because state and federal regulations often closely track federal regulations (see discussion of the Federal Food Code below), it is a good idea to familiarize yourself with published federal guidance materials:

●   Guidance for Industry: Guide to Minimize Microbial Food Safety Hazards for Fresh Fruits and Vegetables website

●   Cornell/USDA/FDA Produce Safety Alliance website

●   USDA/FamilyFarmed.org On-Farm Food Safety Project (online tool to help farmers create customized food safety plans) pdf

The basic foundation for inspection of food processing facilities is the Current Good Manufacturing Practices Regulation or CGMPs. This regulation covers the basics of producing food under clean and sanitary conditions. It is a must read for anyone considering processing food for sale in the U.S.

●   FDA/Current Good Manufacturing Processes website

State and Local Regulations

And now for the bad news: Even if you avoid most FDA regulation of your processed fruit & vegetable operation (e.g., registration, inspection, and record-keeping requirements), you will still be subject to state and local regulations (e.g., permit, licensing, and inspection requirements).

Much state and local regulation of sales of fruits of fruits and vegetables is based on the Federal Food Code, a model set of regulations created and updated regularly by the Federal Food and Drug Administration. Local and state food control jurisdictions rely on the guidance provided in this model Food Code to develop or update their own food safety rules, so as to be consistent with national food regulatory policy. Specifically, the Food Code provides the scientific and legal basis for local and state regulation of the retail and food service segment of the industry, which includes restaurants, grocery stores—and often farm stands, farmers’ markets, and other direct marketing venues.

●   Federal Food Code website

49 out of the 50 states in the U.S. have adopted food codes patterned after one of the five versions of the Food Code, beginning with the 1993 edition; North Carolina is the only outlier, relying instead on a 1976 Model Foodservice Code.

Most state food code regulations apply to retail food operations, often referred to “food establishments” or “food facilities. Urban farmers who direct market their products will want to pay special attention to food code regulations regarding “farm stands,” “retail farm stands,” and “farmers’ markets.”

●   Links to State Versions of the Food Code: website

Much state and local regulation will also be based on state food and agriculture regulations other than those listed in a state’s food code. While state food codes are primarily focused on health and safety surrounding retail sales of food products, other state food and agriculture laws may focus more on health and safety matters surrounding production, shipping, handling, storage, and processing of food products. These activities may be addressed in state food codes, health codes, agriculture codes, etc., and permits and licenses may be required for these activities. Furthermore, state and local regulatory officials often make judgment calls in deciding whether these licensing and/or permit requirements apply to a particular operation. Therefore, whatever your urban farming activity, it is important that you seek guidance from your state and local agriculture and health department (e.g., visit the website, write to a local health department official) to see what licensing and permit requirements apply.

In general, if you are selling processed foods, they must come from an “approved source.” This usually means that the foods were processed in a commercial kitchen or canning operation, which must be licensed and subject to random inspections by local, state, and/or federal authorities. However, in states with what are often called “cottage food laws,” an approved source can actually be a home kitchen.

In a state without a cottage food law, an urban farmer’s best bet for processing fruit vegetable products might be a commercial kitchen. However, anyone who has looked into the options for renting commercial kitchens knows that they can cost $30 to $70 per hour, if such kitchens are even available for rent nearby. And building a commercial kitchen with all the necessary equipment for basic washing, baking, cooking, and storage can easily cost over $100,000. This is, in part, due to the strict requirements for necessary equipment that must be used in commercial kitchens.

While it is currently illegal to sell any food made in a home kitchen in a number of states, over 30 states have passed “cottage food laws,” whereby certain, “non-potentially hazardous,” homemade foods can be sold by small-scale food producers who can’t afford or for other reasons cannot access commercial kitchens that are available for rent. This is a great boon to urban farmers in those states.

●   SELC/Cottage Food Law Take Action Page website

●   SELC/Summary of Cottage Food Laws in the U.S. website

●   Links to State Cottage Food Laws website

●   The Center for Urban Education about Sustainable Agriculture/California Considers a Cottage Food Law website

●   National Center for Home Food Preservation/Resources for Starting Your Own Preserved Foods Business website

●   How Can I Sell My Home-Canned Salsa, Jams and Other Preserves? website

●   University of California (Davis)/Small Farm Program/Adding Value website

●   University of California/UC Food Safety/Manufacturing Options website

●   University of California (Davis)/Small Farm Program/New farm stand regulations expand options website

●   University of California/UC Food Safety/Labeling Food Products website

Tips for Avoiding Regulatory Hassles

Use a commercial kitchen, co-packer, or canning operation to process your products, OR abide by state and local Cottage Food Laws (if applicable). Sell your processed fruits and vegetables directly to consumers. Don’t produce in mass quantities. Don’t sell to wholesalers for widespread distribution. Familiarize yourself with relevant provisions of your state’s Food Code (or derivation thereof). Follow safe handling practices. Check with your state and/or local health department to see if you need any permits or licenses for you particular operation.

●   Links to State Departments of Health (or Public Health) and/or Agriculture website

●   County Departments of Health (or Public Health). You can usually find a link to your county “Department of Public Health” (or “Health Department”) on your state’s Health Department website—or you can simply do an internet search.

How to Legally Sell Eggs

In this section, you will find information about selling “shell eggs” (i.e., eggs still in their shells).

Federal Regulations

Both the Food and Drug Administration (FDA) and the United States Department of Agriculture (USDA) regulate shell eggs. Under the authority of the Federal Food, Drug, and Cosmetic Act (FDCA), FDA requires producers of shell eggs shipped in interstate commerce to implement measures to prevent Salmonella Enteritis (SE). And under the authority granted by the Egg Products Inspection Act (EPIA), the Agricultural Marketing Service (AMS), a branch of the USDA, is responsible for carrying out surveillance inspections of “shell egg handler” operations—defined, in part, as firms with over 3,000 layers that grade and pack their own eggs; these operations must register with USDA and undergo inspections 4 times each year.

●   FDA/Egg Safety website

●   USDA/AMS/Fair Trading Regulations website

●   USDA/Egg Grading Manual website

And of course the good news is that, given the small scale of production and local distribution of urban farm shell eggs, it is highly unlikely that these federal registration and/or inspection requirements will apply.

State and Local Regulations

State departments of agriculture are responsible for in-state regulation of quality, safety, labeling, and handling of shell eggs. All of these state departments have registration and/or licensing requirements for egg handlers, as well as refrigeration, quality, weight, grading, packaging, labeling, and invoice requirements for shell eggs being offered for sale. However, the regulations may vary widely from state to state. For instance, in Washington State, poultry producers who sell eggs from their own flocks at the place of production directly to household consumers do not need to be licensed by the Washington State Department of Agriculture—and they are exempt from certain labeling requirements. By contrast, in California, anyone engaged in the production, sales, or handling of shell eggs must register with the California Department of Food and Agriculture. In general, the smaller the operation, and the more directly you market your eggs, the less regulation you will face. Still, it is important that you seek out guidance from your state and local agriculture and health departments to learn the local health and sanitation rules, and to see if you need any licenses or permits.

●   National Egg Regulatory Officials/State Laws and Regulations website

●   Links to State Departments of Health (or Public Health) and/or Agriculture website

*Please note that you can usually find a link to your county “Department of Public Health” (or “Health Department”) on your state’s Health Department website—or you can simply do an internet search.

How to Sell Legally Meat & Poultry

In this section, you will learn about the regulations surrounding sales of meat and poultry. As a general rule, all meat and poultry offered for sale must originate from either a state- or federally-inspected slaughter and/or processing facility; however, there are some exceptions to this rule. State-inspected meat and poultry products bear a state inspection legend and federally-inspected meat bears a USDA inspection legend. Bottom line: if you slaughter and process meat for sale, you are going to deal with some state and/or federal regulation, such as inspections of your facility for sanitary conditions, inspections of your animals for disease, and permit requirements for your facility.

Federal Regulations

Under the authority granted by the Federal Meat Inspection Act (FMIA) and the Poultry Product Inspection Act (PPIA), the United States Department of Agriculture (USDA) regulates meat and poultry products that cross state lines. In general, meat and poultry products that enter interstate commerce must come from a facility that has been inspected by the USDA’s Food Safety Inspection Service (FSIS). Many state departments of agriculture require state-inspection for slaughter and processing facilities providing meat and poultry for intrastate sale, while other states simply mandate that these facilities be federally inspected.

●   USDA/FSIS/Federal Meat Inspection Act website

●   USDA/FSIS/Poultry Products Inspection Act website

●   USDA/FSIS/Listing of States Without Inspection Programs website

●   A Guide to Federal Food Labeling Requirements for Meat and Poultry Products pdf

Exemptions for custom meats:

Custom meats are prepared by operators who slaughter and process meat for the personal use of the owner of the animal. A custom slaughter facility is a slaughter and processing facility that does not have a state or federally inspector on duty and therefore the meats from these facilities are not considered state- or federally-inspected meats. Please note that state department of agriculture officials will inspect these facilities regularly for overall sanitation—but the animals themselves are not inspected for disease.

To qualify for the custom meat exemption, the following requirements must be met

(1) Animal must be sold to individuals prior to slaughter

(2) The resulting product must be marked “Not for Sale.”

(3) Operator must maintain records.

(4) The animal and/or product must be prepared or processed in a sanitary manner.

Although custom meats are obviously not for sale, the animals from which they are processed must be sold prior to slaughter. And this is where it can be easy to run afoul of the regulations. One might reasonably ask whether they could sell an animal from his/her urban farm and then custom slaughter that same animal for the customer. The answer is a resounding, “No!” This would be seen as an attempt to circumvent state- and/or federal-inspection requirements. To qualify for a custom meat exemption, the animal must be previously owned or purchased from an outside source, and then brought to the custom slaughter facility.

●   Frequently Asked Questions About Processing and Marketing Beef, Pork, Lamb and Goat Meats in North Carolina and South Carolina website

Exemptions for custom poultry:

There is a custom poultry exemption, much like the custom meat exemption (see above). The only difference is that, unlike meat, custom poultry is not marked “Not for Sale.” Instead, it must be marked “Exempted under Public Law 90-492,” and must include the name and address of processor.

Exemption for the small poultry producer/grower:

If you sell poultry products directly from your urban farm, you will most likely be exempt from many federal inspection requirements, simply based on the size your operation. An urban farm “producer/grower” who raises, slaughters and sells 1,000 or fewer birds per year (an easy task, I would imagine) is exempt from daily federal inspection, continuous bird-by-bird inspection, and the presence of a federal inspector at the slaughter/processing facility; however, the operation will not be exempt from ALL federal regulations, and state and local regulations will still apply.

●   Penn State/Understanding Federal Poultry Exemptions for the Direct-to-Consumer Producer/Grower website

State and Local Regulations

Despite certain federal inspection exemptions for custom meat and poultry, as well as small poultry producer/growers, state and local regulations may apply. For instance, the California Department of Food and Agriculture (CDFA) Meat and Poultry Branch conducts inspections for custom-slaughter facilities, retail poultry plants that sell live poultry and slaughter them for customers, and non-retail poultry plants that slaughter or process fewer than 20,000 poultry carcasses per year. And even within a state, the local rules may vary from county to county. For example, in some California counties no inspection is required if poultry carcasses are sold from a small family farm operation (fewer than 20,000 carcasses per year) direct to consumers. *Please note that California requires that ALL “processed” meat and poultry (e.g., anything other than the carcass itself) must be USDA-inspected and the animal must have been slaughtered in a USDA-inspected facility.

●   USDA/FSIS/State Inspection Programs website

●   Penn State/Farmer’s Guide to Processing and Selling Meat or Poultry website

●   University of California/Selling Meat and Meat Products pdf

Tips for Avoiding Regulatory Hassles

Sell live animals or unprocessed carcasses. Only slaughter animals for your own personal use. If you decide to sell meat and poultry, always use a state- or federally-inspected facility for slaughter and processing. Seek guidance from your state agriculture department and local health department.

●   Links to State Departments of Health (or Public Health) and/or Agriculture website

*Please note that you can usually find a link to your county “Department of Public Health” (or “Health Department”) on your state’s Health Department website—or you can simply do an internet search.

How to Legally Sell Dairy Products

There is more food safety regulation of dairy than almost any other type of food product. Because of the significant investment of time, effort, and money necessary to comply with a dizzying array of the local, state, and federal regulatory requirements, it is very unlikely that an urban farmer would want to attempt to operate a traditional dairy facility. However, some urban farmers may be able to sell raw milk (or even some raw milk products), under less onerous regulatory conditions.

Federal Regulations

As with most food products, federal regulation generally only applies to dairy operations engaged in interstate commerce. The Food and Drug Administration (FDA), under a grant of authority by the Federal Food, Drug, and Cosmetic Act, requires, among other things, that all milk and milk products (e.g., yogurt, cheese, ice cream) shipped across state lines must undergo pasteurization, as well as otherwise adhering to the Grade A Pasteurized Milk Ordinance (PMO). The PMO includes requirements for dairy sanitation, permits and inspections, and product labeling—and section 9 of the PMO states the specific requirement that only “Grade A” pasteurized, ultra-pasteurized or aseptically processed milk and milk products shall be sold to consumers, restaurants, or retail establishments.

●   FDA/Grade A Pasteurized Milk Ordinance website

FDA prohibits raw milk from traveling in interstate commerce. However, a number of states allow raw milk sales under various conditions.

●   Farm-to-Consumer Legal Defense Fund/Litigation/FDA Interstate Raw Milk Shipment Ban website

State and Local Regulations

The majority of the states have adopted most or all of the PMO for their own milk safety laws—with the remaining states (i.e., California, Pennsylvania, New York, and Maryland) passing laws that are very similar. Therefore, even if an urban farmer wanted to sell milk or milk products entirely within a state, he or she would still have to abide by PMO regulations, or very similar regulations.

●   National Milk Producers Federation/Dairy Foods Standards and Labeling website

Raw Milk:

Despite the adoption of the PMO, a number of states allow—via statute, administrative rule or regulation, or policy—raw milk (from cows or goats) to be sold for human consumption within the respective state. In fact, in some states where there is an express prohibition on sales of raw milk, state regulatory agencies have made a policy decision not to shut down cowshare programs they know of that otherwise comply with state guidelines. If your state doesn’t allow raw milk for human consumption, you may still be able sell it for animal consumption (e.g., for pigs, dogs, etc.). But keep in mind that these rules all apply to raw milk, and not raw milk products, like yogurt and cheese; to sell raw milk products within your state,, you would still have to be licensed as a dairy and fulfill the state PMO requirements for pasteurization, etc.

●   Real Milk/Summary of Raw Milk Statutes and Administrative Codes website

●   Farm-to-Consumer Legal Defense Fund/Raw Milk Nation: State-by-State Review of Raw Milk Laws website

●   Links to State Departments of Health (or Public Health) and/or Agriculture website

County Departments of Health (or Public Health)

*Please note that you can usually find a link to your county “Department of Public Health” (or “Health Department”) on your state’s Health Department website—or you can simply do an internet search.

How to Sell Your Food Products as “Organic”

Federal Regulations

Under the Organic Foods Production Act of 1990 (OFPA), USDA’s Agricultural Marketing Service implemented the National Organic Program in 2002 as a way to support organic farmers and processers and provide consumer assurance. USDA requires organic farmers and food handlers to meet uniform organic standards and makes certification mandatory for operations with organic sales over $5,000 per year. However, even non-certified producers must comply with organic labeling requirements, which are based on the percentage of organic ingredients in the product.

●   USDA/Economic Research Service/Organic Agriculture/Organic Certification website

●   USDA/AMS/NOP/Organic Production and Handling Standards website

State and Local Regulations

Regardless of whether you sell over $5,000 worth of “organic” food products—thereby requiring certification under USDA’s NOP—you may still have to register with your state department of agriculture if you plan to sell any food product as “organic.” For instance, under the California Department of Food and Agriculture’s Organic Program, all producers, processors, and retailers of products sold as organic must register with the state.

●   CDFA/California Organic Program website

●   *Please see the excellent section on “Organic Marketing” in the Arkansas Direct Farm Business Guide pdf

Recommended Resources

Sixteen City Survey of Urban Agriculture Practices Across the Country
Seeding the City: Land Use Policies to Promote Urban Agriculture
Local Food Systems: An Overview
Urban Food Zoning: Health, Environmental and Economic Considerations
Arkansas Direct Farm Business Guide
The Washington State Department of Agriculture Small Farm & Direct Marketing Program/The Green Book: Handbook of Regulations for Direct Farm Marketing
Overview of Legal Issues in Minnesota: Selling Fruits and Vegetables to Local Retailers and Restaurants
City Farmer News/Category/Policy
The United States Agricultural & Food Law and Policy Blog
A Visual Guide to Getting Your Garden Started: Tulane City Center Urban Farming Toolkit
Flint, Michigan Urban Agriculture Legal Framework Background Report
Seattle: Urban Agriculture Policy & Barriers
San Francisco: Starting a Garden or Urban Farm
Vermont: State Regulations for Farmers’ Market Vendors
FDA/Food Labeling Guide
FDA/Small Business Exemption from nutrition labeling requirements

Contributor:

Phil Heiselmann