David Robert Lambert

UPDATED 05/15/2019

In 2012, Maryland passed a modified Cottage Law, allowing for citizens to operate a home based bakery or home food processing company.  The law was updated in 2018; as of this writing on February 28, 2019, the Code of Maryland Regulations were last updated on January 29, 2019.

An undated memo “Guidance for Cottage Food Businesses” issued by the Maryland Department of Health and Mental Hygiene, Environmental Health Bureau, gives a summary of the main points of these regulations.

It incorrectly states that “COMAR 10.15.03 defines a cottage food … business”.  The full citation is Code of Maryland Regulations Sec. 10.15.03.02. Definitions.

The Guidance also is incomplete in saying that cottage food products can be “offered for sale only at a farmer’s market or public event.”  This is in conflict with the Maryland Department of Health, Office of Food Protection, information which states that a “cottage food” product is a non-hazardous food offered for sale directly to a consumer from a residence, at a farmer’s market, at public events, by personal delivery, or by mail delivery (not offered for sale through interstate commerce.)  Possibly residence, by personal delivery, or by mail delivery was added after the Guidance was written but this cannot be substantiated.

COMAR Sec. 10.15.03.02. Definition (17)-1 talks about residential kitchens with annual revenues not exceeding $25,000.  Definition (17)-2-a says sales can only be made at a “farmers market or public event”. Definition (17)-2-b goes on to say that Maryland cottage foods may NOT be “offered for sale through Internet sales or interstate commerce.” There is no mention of sales by other means, neither in the residence, nor by personal delivery, nor by mail.

The only other mention of cottage foods in Sec. 10.15.03.02. is in definition (34)-c-vii that states that a cottage food business is NOT a Food Service Facility.

Yet another discrepancy can be found in the Farmer’s Market, Bake Sales, and Cottage Food section 10.15.03.27 where A(2) says cottage foods may be sold at a “farmer’s market, bake sale, or public event.”

Note that the term “potentially hazardous food” (PHF) was dropped in 2013 from the FDA Food Code, the recommendations upon which other jurisdictions base their food laws and regulations.  This term has been replaced with “TCS” foods, those that require time/temperature control for safety.  However over 5 years later, the State of Maryland and Montgomery County have yet to adopt this change in terminology.

COMAR Sec. 10.15.03.27 goes into detail saying that cottage foods can be:

1.  Non-potentially hazardous hot-filled canned acid fruit jellies, jams, preserves, and butters,
2.  Fruit butters,
3.  Jam, preserve, or jelly,
4.  Non-potentially hazardous baked goods,
5.  Foods manufactured on a farm,
6.  Non-potentially hazardous candy, and
7.  All other non-potentially hazardous foods produced by a licensed entity.

Natural Honey (Unflavored and without any processing or additives) is cited as allowable by the University of Maryland Extension.  However, flavored honey requires a processing permit.  There is no mention of honey in Sec. 10.15.03.27.

Allergen information must be as specified by federal labeling requirements; “Major food allergen” includes: milk, egg, fish (bass, flounder, or cod), crustacean (crab, lobster, or shrimp), tree nuts (almonds, pecans, or walnuts), wheat, peanuts, and soybeans.

Sec. 10.15.03.27 C-(1)-c gives labeling requirements with regards to name, address, product name, ingredients, net weight/volume, and allergen information. The label must include the disclaimer “Made by a cottage food business that is not subject to Maryland’s food safety regulations.”

The following are changes cited in Maryland HB0527/CH0370 that will become effective on October 1, 2019.

Definition (b-2) now has two parts.  The existing, now part one, is unchanged regarding direct sales to individuals.  Part two is being added to say that sales will be permitted “TO A RETAIL FOOD STORE, INCLUDING A GROCERY STORE, OR A FOOD COOPERATIVE.”  For such sales, the label must also include the “PHONE NUMBER AND E–MAIL ADDRESS OF THE COTTAGE FOOD BUSINESS; AND THE DATE THE COTTAGE FOOD PRODUCT WAS MADE.

Before sale to a retail store or food cooperative the State Health Department needs “DOCUMENTATION OF THE OWNER’S SUCCESSFUL COMPLETION OF A FOOD SAFETY COURSE APPROVED BY THE DEPARTMENT; AND THE LABEL THAT WILL BE AFFIXED TO THE COTTAGE FOOD PRODUCT”

Each year, beginning December 30, 2020, the State Health Department must submit a report to the “SENATE FINANCE COMMITTEE AND THE HOUSE HEALTH AND GOVERNMENT OPERATIONS COMMITTEE” with information about Cottage Food sold to food stores and food coorperatives.

These 2019 changes were approved by the Governor of Maryland on April 30, 2019.

REFERENCES accessed February 28, 2019

Maryland Department of Health and Mental Hygiene, Environmental Health Bureau
Memo providing Guidance of Cottage Food Businesses
https://mda.maryland.gov/maryland_products/Documents/Cottage_Food_Guidelines.pdf

Code of Maryland Regulations
Sec. 10.15.03.02. Definitions
http://mdrules.elaws.us/comar/10.15.03.02

David Robert Lambert Blog Post
Hazardous is a Scary Word (2019/02/26 at 12:38)
https://lambertdrl.wordpress.com/2019/02/26/hazardous-is-a-scary-word/

Code of Maryland Regulations
Sec. 10.15.03.27. Farmer’s Market, Bake Sales, and Cottage Food Business
http://mdrules.elaws.us/comar/10.15.03.27

University of Maryland Extension
Maryland’s Cottage Food Business Law
https://extension.umd.edu/mredc/specialty-modules/cottage-food-business-law-md

Maryland Department of Health, Office of Food Protection
COMAR Regulations 10.15.03.02, 10.15.03.27
https://phpa.health.maryland.gov/OEHFP/OFPCHS/Pages/CottageFoods.aspx

REFERENCES accessed May 15, 2019

Institute for Justice, Maryland House Passes Bill to Expand Opportunities for Home Bakers
https://ij.org/press-release/maryland-house-passes-bill-expand-opportunities-home-bakers/

General Assembly of Maryland, HB1106/CH0491
http://mgaleg.maryland.gov/webmga/frmMain.aspx?id=HB1106&stab=01&pid=billpage&tab=subject3&ys=2018rs

Forrager, Cottage Food Community, Maryland
https://forrager.com/law/maryland/

TrackBill Maryland SB290, Public Health – Cottage Food Products – Definition and Sale
https://trackbill.com/bill/maryland-senate-bill-290-public-health-cottage-food-products-definition-and-sale/1658034/

General Assembly of Maryland, HB0527/CH0370, effective date October 1, 2019
http://mgaleg.maryland.gov/webmga/frmMain.aspx?id=HB527&stab=01&pid=billpage&tab=subject3&ys=2019rs

The Oxford English Dictionary defines HAZARDOUS (adj.) as 1) fraught with hazards or risk; dangerous; risky 2) of a person: given to risk-taking; reckless; adventurous 3) of the nature of the game of hazard; dependent on chance, and 4) that is or represents a hazard to human or animal health; that is damaging to the environment.  A HAZARDOUS MATERIAL (n.) isany of various substances considered to be especially dangerous to humans, the environment, etc., if not handled, used, or stored in a particular way and HAZARDOUS WASTE (n.) is waste, esp. industrial waste, that is potentially harmful to human health or to the environment and which requires special facilities for its disposal.

Cigarette smoking harms nearly every organ of the body, causes many diseases, and reduces the health of smokers in general.  It is the leading preventable cause of death in the United States as evidenced by causing more deaths each year than the following five causes combined: 1) human immunodeficiency virus (HIV), 2) illegal drug use,
3) alcohol use, 4) motor vehicle injuries, and 5) firearm-related incidents.  More than 10 times as many U.S. citizens have died prematurely from cigarette smoking than have died in all the wars fought by the United States.

Clearly, cigarette smoking is hazardous to your health, but what about food?  The Food and Drug Administration (FDA, a federal agency of the Department of Health and Human Services) used to use the term “potentially hazardous foods” to describe many of them.  Of course meat, poultry and fish need special handling but what about a leafy green salad and cut tomatoes?  Yes, even a salad!

A potentially hazardous food (PHF) or time/temperature control for safety food (TCS) is defined in terms of whether or not it requires time/temperature control for safety to limit pathogen growth or toxin formation.  The list of TCS foods may surprise you.  Basically, if you need to keep a food item in the refrigerator, it’s a TCS food.  That means everything from milk and cheese and eggs and meat, all the way down to cooked rice.  Why use such a scary term, potentially hazardous, for everyday food items?  Why try to associate these common foods with cancer, Three Mile Island and Chernobyl?

Here is the story about TCS foods.

The FDA publishes the Food Code, a model that assists food control jurisdictions at all levels of government by providing them with a scientifically sound technical and legal basis for regulating the retail and food service segment of the industry (restaurants and grocery stores and institutions such as nursing homes). Local, state, tribal, and federal regulators use the FDA Food Code as a model to develop or update their own food safety rules and to be consistent with national food regulatory policy.

Between 1993 and 2001, the Food Code was issued every two years. With the support of the Conference for Food Protection (CFP), FDA decided to move to a four-year interval between complete Food Code editions. During the interim period between full editions, FDA may publish a Food Code Supplement that updates, modifies, or clarifies certain provisions. The 2005 Food Code was the first full edition published on the new four-year interval, and it was followed by the Supplement to the 2005 Food Code, which was published in 2007. The 2017 Food Code is the most recent full edition published by FDA.

In 2009, the FDA Food Code had a definition of Potentially Hazardous Food on page 15:

Potentially hazardous food (time/temperature control for safety food)
means a food that requires time/temperature control for safety (TCS) to limit
pathogenic microorganism growth or toxin formation.

Following issuance of the final report “Evaluation and Definition of Potentially Hazardous Foods” (Technologists, 2010) by the Institute of Food Technologists (IFT) on December 31, 2001 the recommendation was made to change the name of “potentially hazardous foods” or “PHF” to “temperature control for safety food” or “TCS”. The report advised that use of both terms (e.g. PHF/TCS) during a transition phase would facilitate migration from one term to the next. Now over a decade since the IFT report, the transition term has been in common use in the FDA Food Code since 2005.

In 2012, the CFP made a recommendation to the FDA to change the definition of PHF/TCS to TCS.

The definition of “Potentially Hazardous Food (Time/Temperature Control for Safety Food)”, abbreviated PHF/TCS in the FDA Food Code, has now been in common use for over six years. While it has served its purpose for introducing the new term, the time has come to complete the migration to the new definition. The definition and abbreviation for “Potentially Hazardous Food (Time/Temperature Control for Safety Food)” or “PHF/TCS” should be modified to drop the reference to “potentially hazardous food” and “PHF”. Instead, the definition should read “Time/Temperature Control for Safety Food” abbreviated as “TCS”.

The Conference recommends that a letter be sent to the FDA requesting the following change to the 2009 Food Code (as modified by the Supplement issued in 2011):

Replace the current definition “Potentially Hazardous Food (Time/Temperature Control for Safety Food)” abbreviated as “PHF/TCS” with the new term “Time/Temperature Control for Safety Food” abbreviated “TCS” throughout the entire FDA Food Code.

The FDA acted on this 2012 recommendation and dropped the PHF term throughout the 2013 FDA Food Code.  The FDA Food Code is the model upon which states and other jurisdictions base their food-related laws and regulations.

However, now over 5-years later, neither the State of Maryland nor Montgomery County has done the same.

REFERENCES accessed February 23, 2019.

Oxford English Dictionary
hazardous, adj.; hazardous material, n.; hazardous waste, n.

Health Effects of Cigarette Smoking, Centers for Disease Control and Prevention (CDC)
https://www.cdc.gov/tobacco/data_statistics/fact_sheets/health_effects/effects_cig_smoking/

Conference for Food Protection, Council I, 2012 Scribe Packet, Issue Number: Council I 004
Change definition of PHF/TCS to TCS
http://www.foodprotect.org/issues/packets/2012ScribePacket/issues/I_004.html

MARYLAND Food Handlers List of TCS Foods
https://www.mdfoodhandlers.com/Content.aspx?PageName=TCS

United States Food and Drug Administration (FDA) Food Code
https://www.fda.gov/food/GuidanceRegulation/retailfoodprotection/foodcode/

2009 FDA Food Code
https://wayback.archive-it.org/7993/20170404235435/https://www.fda.gov/downloads/Food/GuidanceRegulation/UCM189448.pdf

2013 FDA Food Code and Supplement
https://www.fda.gov/downloads/Food/GuidanceRegulation/RetailFoodProtection/FoodCode/UCM374510.pdf
https://www.fda.gov/downloads/Food/GuidanceRegulation/RetailFoodProtection/FoodCode/UCM451981.pdf

FDA Food Code 2017
https://www.fda.gov/downloads/Food/GuidanceRegulation/RetailFoodProtection/FoodCode/UCM595140.pdf

FDA Training Resources, Program Information Manual, Retail Food Protection Training Resources
https://www.fda.gov/Food/GuidanceRegulation/RetailFoodProtection/IndustryandRegulatoryAssistanceandTrainingResources/ucm113843.htm
Page Last Updated: 01/29/2018

Code of Maryland (COMAR) Regulations (Last Updated: July 29,2016)
Title 10. Department of Health & Mental Hygiene Subtitle 15. FOOD, Part 3.
Chapter 10.15.03. Food Service Facilities
http://mdrules.elaws.us/comar/10.15.03

Chapter 15. Eating And Drinking Establishments – Montgomery County
http://montgomeryco-md.elaws.us/code/core_ch15_15.00.01