West Virginia Cottage Food Laws and Regulations: How to sell your homemade foods in West Virginia

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West Virginia Cottage Food Laws and Regulations: How to sell your homemade foods in West Virginia

West Virginia Cottage Food Laws, Regulations and Facts

West Virginia revised their cottage food law, Effective June 5, 2019.

Previously, WV cottage food producers may only sell at in-state farmers markets and community events. Even then, only  a few types of  foods are allowed, specifically non-hazardous foods that do not require refrigeration like bread and pastries, jams, jellies, hard candy, crackers, etc.. Cottage food producers had to register before selling their items at a farmers market or event.

But since June 2019, West Virginians can now sell many more foods with fewer restrictions.  See details below.

Which foods are subject to the West Virginia Cottage Food law?

Basically,in  West Virginia cottage food producers may sell shelf-stable, non-potentially hazardous foods. which do not need to be refrigerated. , you can sell it from your home-based business. Examples include baked goods without cream, custard, cheese or meat fillings. West Virginia cottage food producers also may sell caramel corn, cereals, chocolates, churros, coffee, confections, cotton candy, crackers, dried herbs, dried pasta, dry baking mixes, fruit empanadas, fruit pies, fruit tamales, fudge, granola, honey, jams, jellies, nuts, dried fruits, pretzels, seasoning blends, seeds, syrups, tea blends, tortillas and trail mixes.

The following types of foods are allowed:

• breads, churros, crackers, baked goods that do not require any refrigeration (meaning, no persihable fillings, like meat, dairy, cream, cheese, etc)
• fruit pies (that do not require refrigeration)
• jams, jellies, preserves,
• hard candy,  cotton candy,
• chocolates,
• honey, sorghum, syrups
• cracked nuts, packaged spices and spice mixes,
• dry cookies,
• cakes that do not require refrigeration,
• dry cereals, granola,
• pretzels, bagels, biscuits,
• dry coffee or tea,
• brownies, muffins, rolls, scones and dry soup mixes;
• Only "non-potentially hazardous" foods are allowed. Examples of "potentially hazardous" foods are foods that must be refrigerated or be acidified. For example, pickles and salsa which would either be acidified (have added vinegar and/or lemon juice) or must be refrigerated, are prohibited.
• Applesauce, apple butter
• popcorn, kettle corn, caramel corn
• Pet foods
• dried fruit, fruit leathers

See this page for detailed information about selling foods that do not meet the Cottage Food definition.

Prohibited foods:

Foods which are defined as "Potentially Hazardous Foods", such as any type of meat jerky, pickles, acidified foods, or fermented foods, low acid foods like canned corn or green beans, etc. is not allowed. But PHFs can be sold at farmers markets if you follow the much more restrictive requirements of the old law (call the state for details) .The state also says you may not make and sell:

• meat, meat byproduct, meat food product, poultry, poultry byproduct, or poultry food product

If your food product does not meet the definition of a Cottage Food:

Don't give up. You may still be able to make and sell it commercially, through a startup approach.

First, you may be able to rent space in a local licensed commercial kitchen.

Second, if that doesn't work, you may be able to get a co-packer to make the food for you.

See this page for detailed information about selling foods that do not meet the Cottage Food definition

Definitions:

• "Farmers market" means:
  (1) A traditional farmers market in which two or more vendors gather to sell farm and food products directly to consumers at a fixed location;
  (2) An on-farm market or farm stand run by an individual producer that sells farm and food products;
  (3) An online farmers market in which two or more vendors collectively market farm and food products and retain ownership of those products until they are sold; or
  (4) A consignment farmers market as defined herein.
• At consignment farmers market - "Farmers market vendor" or "vendor" means a person or entity that sells farm and food products at a farmers market.

Licensing

No license is required by the cottage food producer.

Registration is only required if you want to sell potentially hazardous foods (such as pickles, acidified foods, or fermented foods, low acid canned foods, etc) which then may only be sold at farmer's markets and "community events" after registration. In this case, call 304-558-2227 and ask for a copy of the form. .

Labeling requirements

Cottage Food Production Operations must label all of their food products properly, which includes specified information on the label of each unit of food product offered or distributed for sale.

All processed packaged foods bear a label stating the

• name, phone number and home address of the manufacturer/processor preparing the food,
• common name of the food,
• name of all the ingredients in the food in descending order of predominance by weight.
• the net weight of the food in English AND metric units, and
• Major Allergens listed
•  The following statement: "This product was produced at a private residence that is exempt from State licensing and inspection. This product may contain allergens.".

The information above must be provided:

• (1) On a label affixed to the package, if the homemade food item is packaged;
• (2) On a label affixed to the container, if the homemade food item is offered for sale from a bulk container;
• (3) On a placard displayed at the point of sale, if the homemade food item is neither packaged nor offered for sale from a bulk container;
• (4) On the webpage on which the homemade food item is offered for sale, if the homemade  food item is offered for sale on the Internet;
• (5) On a receipt or other document provided to the customer with the homemade food item

 WVDA is able to assist with labeling and WV Division of Labor, Weights and Measures office can assist with determining net weights.

Honey:

It recommended that honey manufacturers/processors include this additional statement to their product label: "Honey is not recommended for infants less than twelve (12) months of age"; and

Depending on the size of your business, your label must comply with Federal label regulations and with the new nutritional labeling law. You can download a copy of the FDA Food Labeling Guide here it s an illustrated booklet that should answer all your questions.

 

Where may Cottage Food Production Operations sell the food products?

Cottage Food Products may not be sold across state lines.  In other words,  only be sold within the state.

The government-speak language is:

1.  The homemade food item must be sold by the producer to the consumer, whether in person or remotely, or by an agent of the producer or a third-party vendor; and
2.  The homemade food items must be delivered to the consumer by the producer, an agent of the producer, a third-party vendor, or a third-party carrier.

This means, the cottage foods may be sold:

• Direct to consumers from your home, for delivery or pick up.
• online,
• by mail order,
•  at farm markets,
• at restaurants, retail stores, etc. yes,you may sell to Retail Outlets Like Restaurants and Grocery Stores
• and "community events".

Other requirements

• Note: there no longer is any limit on annual sales.
• Home food producers no longer need worry about government regulation, including permits, inspections, or prohibitions - UNLESS - a customer complains about a food borne illness.

Recommendations:

Beyond the requirements, common sense, good practices and reducing liability suggests you should do the following.

Training

Take the ServSafe® training classes for Manager and employees, the 7th Edition Book that accompanies this course should be purchased here.. 

Find American National Standards Institute (ANSI Food Handler Training Certificate Programs.

Testing of pH

It's best to use a pH meter, properly calibrated on the day used. I use this one, which is reliable and inexpensive. And this pH meter is really good, but isn't always available.
Short-range paper pH test strips, commonly known as litmus paper, may be used instead, if the product normally has a pH of 4.0 or lower and the paper's range includes a pH of 4.6.

Record-keeping is suggested

Keep a written record of every batch of product made for sale, including:

• ​Recipe, including procedures and ingredients
• Amount canned and sold
• Canning date
• Sale dates and locations
• Gross sales receipts
• Results of any pH test

Sanitation

Although inspections are not required, you should consider doing the following:

• ​Use clean equipment that has been effectively sanitized prior to use
• Clean work surfaces and then sanitize with bleach water before and after use
• Keep ingredients separate from other unprocessed foods
• Keep household pets out of the work area
• Keep walls and floors clean
• Have adequate lighting
• Keep window and door screens in good repair to keep insects out
• Wash hands frequently while working
• Consider annual testing of water if using a private well

Best Practices

• Allergens:  Most state home baking acts require an "ingredient statement" and/or an "allergen listing" on the label of the bakery item for sale; but if your state does not, you should anyway. The eight major food allergens are
  • milk,
  • eggs,
  • fish,
  • crustacean shellfish,
  • tree nuts,
  • peanuts,
  • wheat and
  • soybean.
• Cross-allergenicity: There are also ingredients available, even flours, that can cause a cross-allergenicity. The American Academy of Allergy Asthma & Immunology explains cross-allergenicity as an allergic reaction when proteins in one substance are similar to the proteins found in another substance. For example, consumption of lupine flour may trigger an allergic reaction to peanuts, and cricket flour may trigger an allergic reaction to shellfish. Again, providing such information might be a beneficial marketing tool and help keep potential consumers safe.
• The 2 Hour/4 Hour Rule -   Anyone wishing to make and sell refrigerated bakery items should remember to follow the "2 Hour/4 Hour Rule." This is a system that can be implemented when potentially hazardous foods are out of temperature control (temperatures greater than 45 degrees Fahrenheit) during preparation, serving or display for sale. The rule guidelines are as follows:
  • If a potentially hazardous food has been out of temperature control for 2 hours or less, then it may continue to be used or be placed back in the refrigerator.
  • If a potentially hazardous food has been out of temperature control for more than 2 hours but less than 4 hours, it needs to be used quickly or discarded.
  • If a potentially hazardous food has been out of temperature control for more than 4 hours, it must be discarded.

More resources:

• WV SB285 - the June senate bill
• News story about the new (June 2019) law
• WV Dept of Agriculture Farmers Maket Guide
• Christina White (cdw0030@mix.wvu.edu), Intern for the WVU Center for Resilient Communities has created a Google doc with more West Virginia Cottage Foods resources.
  
• FDA Food labeling information.
• Good to know (not a requirement): Guidelines for Determining Metric Equivalents of Household Measures (October 1, 1993)
• wv legislature.gov Bill history 
•  taxes in .wv  
• Small Business Administration.gov/
• WV tax guide
•  Massachusetts has a Food Processors Resource Manual that is a practical guide for specialty food and start-up food processors published by the Massachusetts Department of Agricultural Resources. The marketing and practical tips can be very useful to a cottage food kitchen in any state.  The chapters are available online and as a downloadable document pdf format
  Introduction
  Starting Out
  Production
  Residential Kitchens: Questions and Answers
  Developing a Business Plan
  Label and Product Regulations
  Label Design
  Promotion
  Distribution and Sales
  Trade Shows
  Using the Internet for Marketing

Questions? Contact Information:

Try this link FIRST, to email the department:

https://oehs.wvdhhr.org/phs/contact/

If you do not get a response, these folks may be able to help, or at least point you to someone who can:

• Food Program Manager, WV Department of Health (This position is vacant in 2024)
  Assistant Food Program Manager Daniel McNeil, R.S. daniel.h.mcneil@wv.gov.
• Manufactured Food Program Coordinator James E. Casdorph, R.S. james.e.casdorph@wv.gov.
• Manufactured Food Inspector Nick King, R.S. nicholas.b.king@wv.gov.