STARTING A TEXAS FOOD BUSINESS
Food service establishments such as restaurants and food trucks (mobile food units and food carts) are heavily regulated with permitting requirements, registrations, and random inspections (and inevitable fines) by the health department. There is an exception to these requirements which pertain to smaller-scale Texas food businesses. By law, a person can produce food in their own home kitchen to be sold directly to customers. In Texas (and in every State but New Jersey), you can operate a home-based food business based on the “Texas Cottage Food Laws.”
If you are operating or considering a start-up food business, contact me by email to set up a consultation about the specifics of the food laws and best practices for setting up the business and doing business with the public in a way that minimizes risk to you and your business.
WHAT CAN YOU SELL?
The Cottage Food Law requires that the food sold not be “potentially hazardous.” Items that are hazardous can cause illnesses if not handled properly due to bacteria and micro-organisms and some items may cause botulism. The language in the statute confirms the regulators are not trusting home producers to sell items that require “time and temperature” control (meats, dairy, salsa, canned veggies, baked goods that require refrigeration, cheesecake, certain pies). You can sell items that do not require refrigeration or heating, i.e. they are stable and safe at room temperature. Items that must be kept cold or at a certain heated temperature to be safe are not allowed.
With that said, you may sell the following homemade food items:
- Baked goods that do not require refrigeration, such as cakes, cookies, breads, and pastries.
- Coated and uncoated nuts
- Unroasted nut butters
- Fruit butters (must be nonhazardous so test PH – some fruits are hazardous and some are not, you should investigate this prior to production and sale)
- Canned jams and jellies
- Fruit pies
- Dehydrated fruits and vegetables including dried beans
- Popcorn and popcorn snacks
- Cereal, including granola
- Dry mixes
- Pickles (only pickled cucumbers, not other foods)
- Roasted coffee or dry tea
- Dried herbs or herb mixes
WHERE CAN I SELL MY FOOD?
You may sell the food at your home, deliver the food to your customer, or sell your food at the following locations: farmers’ markets, farm stands, or municipal, county, or nonprofit fairs, festivals, or events.
You cannot sell the food through the internet. You cannot ship your food by mail order. You cannot sell sell wholesale to a retail outlet such as a restaurant or store.
CAN I HAVE A WEBSITE TO ADVERTISE MY FOOD?
There are no regulations on whether you can have a website or advertise. You can imagine a customer contacting you through the site or by contact information provided by the site and you would then have the customer come to you at the place of sale. You would not mail the food out.
You can also have social media accounts promoting your business such as Facebook, Instagram, Twitter, Youtube.
DO YOU NEED TO FILE FOR PERMITS OR LICENSES FROM THE LOCAL AUTHORITIES?
You do not need to register with the city, or file for any permits or licenses. Basically, the law says that health department or local government authority can regulate your production of these items. The authorities do not get to inspect your home like the health department does to restaurants and food trucks.
The government will keep records of complaints made against you by customers but will not investigate or inspect based on the complaints. An exception is if you are posing a serious and immediate threat to human health and safety. Presumably this means that there are many complaints that show you are unfit to continue sales and likely that there are serious injuries resulting from your food as shown by a pattern of complaints which link back to your food.
However, you must obtain a “Food Handlers Card” prior to selling your food, which is relatively cheap for the online course. Here are links to where to get the cards: Link 1 (online classes), Link 2 (in person classes). If you have employees (other than family members in the household), they must also get a card.
There are also no zoning requirements as to where you operate.
ARE THERE ANY PACKAGING OR LABELLING REQUIREMENTS?
Your food must be packaged in a way that prevents the product from becoming contaminated. Items that are too large or bulky for conventional packaging, like wedding cakes or cupcake bouquets, are not required to be packaged.
Your food must have an attached labeled, and again the exception is large items which can have the label on the invoice or a receipt. A summary of the labelling requirements are as follows:
- name and address of the cottage food production operation;
- the common or usual name of the product;
- a list of any major food allergen, such as eggs, nuts, soy, peanuts, milk or wheat (merely stating “there may be allergens” is NOT going to cut it, list which ones); and
- a statement that the food is not inspected by the Department of State Health Services or a local health department.”
Note that the label does not have to list all of the ingredients.
ARE THERE LIMITS OR CAPS ON PROFITS FROM THE SALES?
Yes, you can only earn a gross income $50,000 a year from sales.
So, thats the law on this issue but of course there are business considerations. If you are starting out as a new food business or have been operating, feel free to reach out with any questions. I would typically have recommendations as far as organizing the business, contracts with any suppliers, invoice language and label language, and of course can do an audit of your business operations to ensure compliance with the statutory requirements. Once your business is successful and perhaps you are approaching the cap on sales, you may want to explore moving out of the home kitchen and into a commercial kitchen which would require permitting and registration with the City.