HB398: HB398 Food, drugs, and cosmetics; authorize production and sale of cottage food items with certain exemptions, requirements, and disclosures

25 LC 44 2976/AP House Bill 398 (AS PASSED HOUSE AND SENATE) By: Representatives Hagan of the 156th, Gaines of the 120th, Dempsey of the 13th, Camp of the 135th, Prince of the 132nd, and others A BILL TO BE ENTITLED AN ACT To amend Chapter 2 of Title 26 of the Official Code of Georgia Annotated, relating to1 standards, labeling, and adulteration of food, so as to authori ze the production and sale of2 cottage food items with certain exemptions, requirements, and d isclosures; to provide for3 definitions; to provide for inspections; to provide for a civil penalty; to provide for4 conforming changes; to amend Chapter 60 of Title 36 of the Offi cial Code of Georgia5 Annotated, relating to general provisions applicable to counties and municipal corporations,6 so as to prohibit local regulation of cottage food items; to pr ovide for related matters; to7 repeal conflicting laws; and for other purposes.8 BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:9 SECTION 1.10 Chapter 2 of Title 26 of the Official Code of Georgia Annotated , relating to standards,11 labeling, and adulteration of food, is amended by adding a new article to read as follows:12 H. B. 398 - 1 - 25 LC 44 2976/AP "ARTICLE 1913 26-2-470.14 As used in this article, the term:15 (1) 'Commissioner' means the Commissioner of Agriculture.16 (2) 'Cottage food item' means a non-potentially hazardous food or nonalcoholic beverage17 intended for human consumption that is produced and, if package d, packaged at the18 residential property of the producer. The term 'cottage food i tem' shall not include19 alcoholic beverages, foods containing cannabis, or raw milk.20 (3) 'Cottage food operator' means a person who produces cottag e food items at a21 residential property for sale to consumers or sellers pursuant to this article.22 (4) 'Cottage food production operation' means an individual, o perating out of the23 individual's home kitchen, who prepares, processes, packages, s tores, and distributes24 non-potentially hazardous foods for sale directly to a person, including online and by mail25 order, or to any food sales establishment, as that term is defined in Code Section 26-2-21.26 (5) 'Department' means the Department of Agriculture of this state.27 (6) 'Home kitchen' means a kitchen primarily intended for use by the residents of a home.28 (7) 'Non-potentially hazardous foods' means cottage food items that do not require29 temperature control for safety because they are not capable of supporting the rapid30 growth of pathogenic or toxigenic microorganisms or the growth and toxin production31 of Clostridium botulinum. The term 'non-potentially hazardous foods' includes, but is not32 limited to, baked goods such as loaf breads, rolls, biscuits and cakes, except those whose33 fillings require refrigeration or have high moisture content; jams, jellies, and preserves,34 except fruit butters when their commercial sterility may be affected by reduced sugar or35 pectin levels; uncut fruits and vegetables; dried fruits; dry h erbs, seasonings, and36 mixtures; cereals, trail mixes, and granola; coated and uncoate d nuts; vinegars and37 H. B. 398 - 2 - 25 LC 44 2976/AP flavored vinegars; dill pickles; confections; fudge; dry soup mixes; roasted coffee beans;38 dry pasta; and popcorn, popcorn balls, and cotton candy.39 (8) 'Potentially hazardous foods' means cottage food items requiring temperature control40 for safety because they are capable of supporting the rapid gro wth of pathogenic or41 toxigenic microorganisms or the growth and toxin production of Clostridium botulinum.42 (9) 'Produce' means to prepare a food item by cooking, baking, drying, mixing, cutting,43 dehydrating, growing, raising, or other process.44 (10) 'Producer' means a person who produces a cottage food item pursuant to this article.45 (11) 'Seller' means any person, except a cottage food operator, who sells a cottage food46 item to a consumer, including, but not limited to, an agent of the producer or a third-party47 vendor.48 (12) 'Third-party vendor' means a retail store, grocery store, restaurant, or other similar49 store.50 26-2-471.51 (a) It shall be unlawful for any person to operate as a cottag e food operator not in52 compliance with this article.53 (b) This article shall not apply to a person who sells non-potentially hazardous foods at a54 bake sale affiliated with a nonprofit, charitable, or religious organization.55 26-2-472.56 Cottage food production operations may only sell, or offer to sell, food items directly to a57 person, including online and by mail order, or to retail food sales establishments, including58 grocery stores and restaurants. Food produced from a cottage food production operation,59 and in compliance with the requirements of this article, shall be considered to be from an60 approved source, as required of a retail food sales establishme nt pursuant to department61 regulations. Any retail food sales establishment, including any grocery store, that sells or62 H. B. 398 - 3 - 25 LC 44 2976/AP offers to sell cottage food products must post signage accordin g to specifications as63 promulgated by the department indicating that cottage food prod ucts are not subject to64 commercial food regulations or inspection.65 26-2-473.66 (a) Except as provided in subsection (c) of this Code section, a cottage food operator or67 seller shall provide the following information to consumers of a cottage food item:68 (1)(A) The business name, address, and telephone number of the cottage food operator;69 or70 (B) A cottage food operator or seller may elect, in lieu of pr oviding an address71 pursuant to subparagraph (A) of this paragraph, to provide an identification number to72 be provided by the department upon written request; and73 (2) The following statement in at least 10 point font: 'This p roduct was produced at a74 residential property that is exempt from state inspection. Thi s product may contain75 allergens.'76 (b) Such information shall be provided:77 (1) On a label affixed to the package, if the cottage food item is packaged;78 (2) On a label affixed to the container, if the cottage food item is offered for sale from79 a bulk container;80 (3) On a placard displayed at the point of sale, if the cottag e food item is neither81 packaged nor offered for sale from a bulk container; or82 (4) On the webpage on which the cottage food item is offered for sale, if the cottage food83 item is offered for sale on the internet.84 (c)(1) If the cottage food item is sold by telephone or custom order, the seller may85 choose not to display the information required by subsection (a) of this Code section but86 shall disclose to consumers that the cottage food item:87 (A) Is produced at a residential property that is exempt from state inspection; and88 H. B. 398 - 4 - 25 LC 44 2976/AP (B) May contain allergens.89 (2) The seller shall have the information required by paragrap hs (1) through (3) of90 subsection (a) of this Code section readily available and shall provide it to consumers91 upon request.92 (d) In addition to the labeling requirements provided in subse ctions (a) and (b) of this93 Code section, if the cottage food item is sold by a third-party vendor, the item shall be94 displayed in a separate section of the store or in a separate display case from non-cottage95 food items. The third-party vendor shall conspicuously label the separate section or display96 case as containing cottage food items that are exempt from state inspection.97 26-2-474.98 The Commissioner shall be authorized to enforce the provisions of this article and shall99 have the authority to adopt any rules or regulations necessary to carry out said enforcement. 100 Nothing in this article shall be construed to prevent the depar tment from conducting an101 investigation into a reported foodborne illness.102 26-2-475.103 Any person who willfully fails to comply with any provision of this article or violates any104 rule or regulation adopted pursuant to this article shall be given a written warning. Upon105 a second or subsequent violation, such person shall be assessed a civil penalty of not more106 than $75.00 per violation.107 26-2-476.108 (a) The department may inspect the residence of a cottage food operator to investigate a109 consumer complaint, a report of foodborne illness, or other public health emergency.110 (b) Such inspection shall be limited to the areas of the residence used by the cottage food111 operator.112 H. B. 398 - 5 - 25 LC 44 2976/AP (c) Except in emergency situations, the department shall schedule an inspection with the113 cottage food operator in advance. A cottage food operator may request an administrative114 warrant prior to an inspection.115 26-2-477.116 Nothing in this article shall be construed to:117 (1) Exempt a cottage food operator or seller from any applicable federal law, including,118 but not limited to, any federal law prohibiting the sale of certain food items in interstate119 commerce;120 (2) Preclude the production or sale of food items otherwise allowed by federal, state, or121 local law;122 (3) Preclude the sale of live animals or portions of live anim als before slaughter for123 future delivery;124 (4) Amend or otherwise alter any rule or regulation related to other goods and services125 provided where cottage food items are produced or sold;126 (5) Exempt a cottage food operator or seller from any applicable tax law;127 (6) Exempt a cottage food operator or seller from any applicable fishing or hunting law;128 or129 (7) Exempt a cottage food operator or seller from any applicable law of another state.130 26-2-478.131 (a) In addition to the regulation of cottage food items under this article by the department132 and the Commissioner, the governing authority of any county or municipality may elect to133 prohibit cottage food operators from selling cottage food items through third-party vendors134 within its jurisdiction through the adoption of an ordinance providing as much. Any such135 ordinance shall only be adopted at a hearing occurring at least 15 but not more than 45 days136 after a notice of the hearing is published within a newspaper of general circulation within137 H. B. 398 - 6 - 25 LC 44 2976/AP the territorial boundaries of the local government. Any such county or municipality may138 employ its local board of health to assist in such matters.139 (b) No ordinance authorized under subsection (a) of this Code section shall become140 effective until the county or municipality notifies the Commissioner and the department of141 such ordinance prior to the effective date of the required ordinance.142 (c) Neither the Commissioner, nor the department, shall be responsible or liable for any143 prohibition or regulation enacted by ordinance pursuant to subs ection (a) of this Code144 section."145 SECTION 2.146 Said chapter is further amended in Article 2, relating to adulteration and misbranding of food,147 by revising paragraph (5) of subsection (a) of Code Section 26-2-21, relating to definitions,148 as follows:149 "(5) 'Food sales establishment' means retail and wholesale grocery stores; retail seafood150 stores and places of business; food processing plants, except those food processing plants151 which are currently required to obtain a license from the Commissioner under any other152 provision of law; bakeries; confectioneries; fruit, nuts, and vegetable stores or roadside153 stands; wholesale sandwich and salad manufacturers, including v ending machines and154 operations connected therewith; and places of business and simi lar establishments,155 mobile or permanent, engaged in the sale of food primarily for consumption off the156 premises. Within a food sales establishment, there may be a food service component, not157 separately operated, which may serve customers on site. This food service component158 shall be considered as part of the food sales establishment. Such term shall not include:159 (A) The food sales component of any food service establishment defined in Code160 Section 26-2-370;161 (B) Food service establishments as defined in Code Section 26-2-370;162 H. B. 398 - 7 - 25 LC 44 2976/AP (C) Establishments engaged in the sale of food primarily for c onsumption off the163 premises if such sale is an authorized part of and occurs upon the site of a fair or164 festival which:165 (i) Is sponsored by a political subdivision of this state; and166 (ii) Lasts 120 hours or less;167 (D) Establishments engaged in the boiling, bottling, and sale of sugar cane syrup or168 sorghum syrup within this state, provided that such bottles con tain a label listing the169 producer's name and street address, all added ingredients, and the net weight or volume170 of the product; or171 (E) Nonprofit food sales and food service provided under a permit issued pursuant to172 Article 14 of this chapter;173 (F) Cottage food operators as provided for in Code Section 26-2-471; or174 (G) A person selling non-potentially hazardous foods, as defin ed in Code175 Section 26-2-470, at a bake sale affiliated with a nonprofit, c haritable, or religious176 organization."177 SECTION 3.178 Said chapter is further amended in Article 6, relating to meat, poultry, and dairy processing179 plants, by revising paragraph (3) of Code Section 26-2-200, rel ating to definitions, as180 follows:181 "(3) 'Meat, poultry, or dairy processing plant' means: any abat toir, slaughterhouse,182 poultry killing or processing plant, milk depot, milk processin g plant, or any other183 establishment for the killing, storage, dressing, manufacture, preparation, or processing184 of any animal, fowl, or dairy product or any by-product thereof for human consumption. 185 Such term shall not include cottage food operators as provided for in Code186 Section 26-2-471."187 H. B. 398 - 8 - 25 LC 44 2976/AP SECTION 4.188 Said chapter is further amended in Article 13, relating to food service establishments, by189 revising paragraph (2) of Code Section 26-2-370, relating to definitions, as follows:190 "(2) 'Food service establishment' means establishments for the preparation and serving191 of meals, lunches, short orders, sandwiches, frozen desserts, o r other edible products192 either for carry out or service within the establishment. Such term includes restaurants;193 coffee shops; cafeterias; short order cafes; luncheonettes; tav erns; lunchrooms; places194 which retail sandwiches or salads; soda fountains; institutions, both public and private;195 mobile food service establishments; industrial cafeterias; cate ring establishments; and196 similar facilities by whatever name called. Within a food serv ice establishment, there197 may be a food sales component, not separately operated. This food sales component shall198 be considered as part of the food service establishment. Such term shall not include:199 (A) A food sales establishment, as defined in Code Section 26- 2-21, except as200 otherwise stated in this paragraph;201 (B) The food service component of any food sales establishment defined in Code202 Section 26-2-21;203 (C) Any outdoor recreation activity sponsored by the state, a county, a municipality,204 or any department or entity thereof, any outdoor or indoor (other than school cafeteria205 food service) public school function, or any outdoor private school function;206 (D) Any organization which is operating on its own property or on the property of a207 party that has provided written consent for the use of such pro perty for such purpose208 and which is exempt from taxes under paragraph (1) of subsectio n (a) of Code209 Section 48-7-25 or under Section 501(d) or paragraphs (1) throu gh (8) or210 paragraph (10) of Section 501(c) of the Internal Revenue Code f or the purpose of211 operating a house or other residential structures where seriously ill or injured children212 and their families are provided temporary accommodations in pro ximity to their213 H. B. 398 - 9 - 25 LC 44 2976/AP treatment hospitals and where food is prepared, served, transpo rted, or stored by214 volunteer personnel;215 (E) Establishments for the preparation and serving of meals, l unches, short orders,216 sandwiches, frozen desserts, or other edible products if such preparation or serving is217 an authorized part of and occurs upon the site of an event which:218 (i) Is sponsored by a political subdivision of this state;219 (ii) Is held on the property of such sponsor or on the propert y of a party that has220 provided written consent for use of such property for such event; and221 (iii) Lasts 120 hours or less; or222 (F) Nonprofit food sales and food service provided under a permit issued pursuant to223 Article 14 of this chapter; or224 (G) Cottage food operators as provided for in Code Section 26-2-471."225 SECTION 5.226 Chapter 60 of Title 36 of the Official Code of Georgia Annotate d, relating to general227 provisions applicable to counties and municipal corporations, is amended by adding a new228 Code section to read as follows:229 "36-60-33.230 Except as authorized under and in accordance with Code Section 26-2-478, no county or231 municipality shall prohibit or regulate cottage food items as s uch term defined in Code232 Section 26-2-470. No county or municipality shall prohibit com mercial delivery233 companies from delivering cottage food items."234 SECTION 6.235 All laws and parts of laws in conflict with this Act are repealed.236 H. B. 398 - 10 -