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Idaho

Idaho has allowed for the sale of low-risk homemade foods for years, but is just now codifying their practices into state rules. The new proposed rules were passed in January 2016, and they should become effective by April 2016. However, it is currently possible to directly sell cottage foods, and the below information describes current practices.

Because Idaho had no law to legalize these home food businesses, a couple cottage food bills were introduced in 2015. The first bill (H106) simply tried to codify the current practice of the health districts, allowing direct sales of low-risk foods. The presence of H106 got the attention of the Northwest Food Processors Association, and they helped create a second bill (H187), which replaced the old one and added a number of restrictions, like registration and a sales limit. Both bills ultimately failed due to conflicting interests, which was a good thing: if H187 had passed, it likely would have made it harder to start a cottage food business in Idaho.

In the summer of 2015, the Idaho Department of Health and Welfare held discussions around the state to discuss the status of cottage foods, which ultimately influenced the proposed rules, which imposed minimal regulations. As Patrick Guzzle, the Food Protection Program Manager at IDHW summarized, “We pretty consistently heard from cottage food producers that there needed to be some better definitions, but not regulations around it”.

Selling

Allowed Foods

Prohibited Foods

Except for acidified foods, any non-potentially hazardous food is allowed. Some types of items, like fruit butters, apple sauce, pepper jams, etc. may be allowed, depending on the recipe. You should contact your health district to get approval for products you’re unsure about.

Only "non-potentially hazardous" foods are allowed, but certain non-PHFs may not be allowed. Most foods that don't need to be refrigerated (foods without meat, cheese, etc.) are considered non-potentially hazardous. Learn more

Limitations

Limitations
There is no sales limit

Business

Food Risk Assessment Form

Although not required, the health department recommends that all cottage food operations fill out a food risk assessment form, both to confirm that your products are approved, and also to make it easier for you to get accepted into some types of sales venues. Markets and events may require the form.

Food Safety Training

The health department does not require any form of training, but recommends taking a basic food handlers course online to ensure food safety. Courses (such as the ServSafe course) usually take a few hours and cost around $15.

Product Testing

Some types of products, like fruit butters, may be allowed, depending on their recipe. You can submit the product to a private laboratory for testing to ensure that the recipe is safe to use.

Water Testing

If you use a private water supply, the health department recommends that you get it tested every three months.

Labeling

The health department currently recommends adding labels to your products. Labels will soon be required once the new Idaho Food Code gets finalized, which will require labels to include an allergen warning and a statement that the product was produced in a home kitchen.

Resources

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Comments

Is it illegal to sell baked goods ( banana bread , pumpkin , pumpkin chocochip, Apple cinnamon etc.) online or from ones home ? I read here it is legal but would appreciate confirmation. Thank u

Is something like frozen cookie dough considered a safe food. or because of the egg factor would require inspections and so fourth.

Quick question then. . What about all the folks who go out and sell homemade tamales? Does that fall under the PHF category?
Thanks

    If the tamales contain meat, then they are a PHF. Fruit or dessert tamales are often non-PHFs. My guess is that many — if not most — of the tamale sellers are doing so illegally.

The Idaho Department of Agriculture, Bureau of weights and Measures, has a labeling requirement that at a minimum the net weight and contact information is needed. If you sell through a third party retailer could could be required to have done your production in approved commercial kitchen, As approved by your Health District. The Health District around Lewiston, ID has been very enforcement minded on this topic, especially on honey producers. Some farmers markets have their own requirement that an approved commercial kitchen is required for all “processed” food items. If you cross a state line you will have federal FDA issues to deal with..

    There isn’t any consistency in Idaho, because each health district is a separate entity. Anyone interested in starting a food business should directly contact their health district for the most current and accurate info.

The statement at the top of the page saying it is illegal to sell homemade foods is just WRONG. It is entirely legal to sell a number of non-potentially hazardous foods that are made at home. We have a great many citizens doing this right now. Just because the law doesn’t mention that they are allowed, doesn’t mean they are included in what is regulated in this state.

    Don’t worry Lori Anne — I’m entirely happy to change the info on this page. This website is intended to show whether home food businesses are allowed, not necessarily whether they are legal, and it’s apparent to me now that they are being allowed across the state. I’d say that if H187 were good for something, it would be that it’s added a lot of transparency to the current situation in Idaho. I have been struggling to get any solid info about this state for the past few years, and it hasn’t been until now that people are actually talking online about what’s currently allowed. Thanks to you and others, the curtain is being lifted!

    It’s not that I want to keep Idaho as a “no law” state — it’s just that this info is all very new to me (as of the past couple days), so I’ve been gathering more info and verifying it before updating this page, especially since the law says that these businesses are technically illegal. Online resources from the health dept that explain the current practice would help A LOT, but it doesn’t appear that those exist.

    I’ve been especially interested in verifying that these practices do, in fact, exist across the state, and not just in select counties. A few hours ago, I received a document that helps clarify a lot of that, so I’ll update this page soon. Thanks for all the info, and if you know of any links that I could put into the Resources section on this page, I’d love to include those.

    David- Thank-you for recognizing that Cottage Foods are legal in Idaho. Your statement above still has some issues, however. Idaho State Health & Welfare, Idaho Farm Food Freedom, Farm-To-Consumer Legal Defense Fund and Idaho Food Policy Coalition OPPOSE HB 187. It is too restrictive. One of the reps who sponsored the bill withdrew their name due to the fact that all 7 health districts currently have more freedom than what HB187 proposes. In lieu of HB 187, Idaho Health & Welfare is proposing a simple statewide exemption. In order for this to be done, however, Idahoans must contact their Representatives and tell them to VOTE NO on HB 187.

    David, Thank you for more accurately and fully presenting the status of the home kitchen or cottage food industry in Idaho. I recently heard that H 187 has been withdrawn, and that we will be having meetings all over Idaho to address if, and how, to codify that non-potentially hazardous foods can be legally made in home kitchens and sold directly to any willing consumer in Idaho. Those meetings will be in April and May of 2015. Many thanks to Ann for taking the time to point you toward the rest of the story!

    Thanks for the update, though I don’t yet see an update on the bill’s status yet. It does sound like good news, though. It’s hard to imagine how this would have worked without the health dept’s full support. And fortunately, as a result of this bill, now Idahoans that visit this site will know that they can likely start this kind of business from home.

The statement that cottage foods is illegal in Idaho is incorrect. There is a rule that deregulates cottage food in Idaho. In short, Idaho has no law, meaning it isn’t regulated and therefore, is not illegal. It is allowed in all 7 health districts to sell cottage food.

CURRENT NON-REGULATED PRACTICE IN IDAHO:
1) Risk assessment filed with Health Department stating foods to be produced and sold (no fee).
2) Health Department evaluates foods, if non-hazardous, nothing more is done, individual may sell food produced in their home kitchen as direct sale at Farmer’s Markets and elsewhere.
3) No $ limit to the amount of food that may be produced.
4) No food handler’s permit required.
5) No labeling required.
H106 (not the bill being pushed by IORC or being heard tomorrow am) is the bill which maintains all the freedoms listed above. It is supported by Farm-To-Consumer Legal Defense Fund, Idaho Food Freedom Foundation and Idaho Food Policy. Ask for H106 to be heard.
NEW COTTAGE FOOD BILL being heard WED AM (H187) is supported by IORC & Northwest Food Processors (Industrial Agriculture processing which is focused on limiting small businesses from being successful). It keeps poor people poor by putting a $30K gross limit on cottage foods.
H187 COTTAGE FOOD BILL:
1) Limit production of home kitchen non-hazardous foods to $30K gross/yr.
2) Require registration of anyone producing foods in a home kitchen for sale.
3) Allows a fee to be charged (amount not specified) for registration.
4) Requires Health & Welfare to promulgate rules for cottage foods.
5) Requires cottage food producers to pass a food handler’s test.

In summary, individuals who currently sell at the Farmer’s Market who gross over $30K will have to limit their business. This forces successful businesses to either invest in a commercial kitchen (a substantial cost) or limit their activity.

    Thanks for the info! I have also heard that there are already allowances for home food producers in Idaho, though it’s unclear how prevalent those are. I haven’t yet found any documentation on a health dept’s website that clarifies this allowance, and it would be great to find some evidence of that. Can you point to any online resources, like a risk assessment application?

    You mentioned “There is a rule that deregulates cottage food in Idaho. In short, Idaho has no law, meaning it isn’t regulated and therefore, is not illegal.” I went back and reread the Food Establishment Act (Idaho Statutes 39-16), and honestly, I’m having a hard time finding wording that would prove that a home food business would not be regulated. That act defines “food establishments” as those that engage in any kind of food business “regardless of whether consumption is on or off the premises and regardless of whether there is a charge for the food”. It then specifically states that “private homes” cannot be food establishments, which would indicate to me that a private home cannot be a food business. The act also states that all food establishments require licensure.

    If I’m misreading the law and cottage food operations are already allowed in the state, then I’m wondering why H106 would even be necessary? It specifically adds text that states that in addition to food establishments, home kitchen operations are also allowed, and HKOs are also exempt from licensing. That makes sense to me.

    While it’s true that H106 is a much less restricted form of H187, it appears likely that H187 has now replaced H106 for good. H187 was probably only created because H106 is too unrestricted, and would not likely pass through the legislature and get signed into law. It is really common for cottage food laws to start with high aims, and then get amended and restricted as they pass through legislature — especially the Senate.

    So I guess, if your health dept is currently allowing you to sell your homemade food with no restrictions, is it possible that they are doing so illegally? I don’t know, but I’d like to find out.

    David:

    The specific exemption is found in IDAPA 16.02.19.001.04.e . http://adminrules.idaho.gov/rules/current/16/0219.pdf
    04.These Rules Do Not Apply to These Establishments. These rules do not apply to the following
    establishments as exempted in Idaho Code. (4-6-05)
    e. Low-risk food establishments, as exempted in Section 39-1602, Idaho Code, which offer only non-
    potentially hazardous foods.

    The 7 health independent districts have not done the greatest job disseminating this information so it is understandable that some people are confused as to what the situation with cottage foods actually is. One local group, the Idaho Food Policy Coalition, had all 7 districts surveyed. All of the districts allow non-PHFs to be sold directly to the consumer with no limits or restrictions. Some districts ask for a food risk assessment form to be completed which is a tool for the district to determine whether the vendor is going to be selling any PHF and would therefore need a permit. One such form is located at: http://idahopublichealth.com/environment/files/food-risk-assessment-2005.pdf Note the two categories at the bottom where food is either REGULATED or NOT REGULATED under the Idaho food code.

    The reason for H106 was to codify the current practice and get rid of any confusion. H187 adds several restrictions that are outside of current practice in Idaho.

    Thank you for directing me there — now I understand where your statement is coming from. I’m still not wholly convinced that selling non-PHF homemade foods is legal, and here’s why.

    The Idaho Food Code is essentially a modification of the Federal Food Code, and in that we find the typical statement in section 620, which prevents private homes from becoming food businesses. However, there’s that exemption that you noted, for “low-risk food establishments, as exempted in Section 39-1602, Idaho Code“.

    That exemption basically sends us back to the statutes, where the only low-risk food exemption specified is for “establishments which offer only factory-sealed foods that are not potentially hazardous”. From my understanding, this is like the rules that many states have, which exempt facilities that only sell non-PHF prepackaged foods. Those rules exist so a store that only sells things like canned soda, commercially-packaged cookies, etc. does not need to be considered a food establishment and follow all of the rules that being a food establishment entails. It would make sense for a risk assessment form to be filled out by those kinds of facilities, to make sure that they are only selling non-PHFs which are factory-sealed.

    Please understand that I’m not saying you are wrong. I fully believe that health depts are and have been considering home food businesses to fall under the category of low-risk food establishments, even though they sell much more than factory-sealed non-PHFs. But are they doing so legally? I’m not so sure.

    What it sounds like (and this is purely my speculation) is that since the common practice is for health depts to allow cottage food businesses, H106 was created to codify that practice and make these businesses legal. But now that it’s in the legislative system, the depts and powers-that-be are realizing that they really don’t think this should be legal. Therefore, they are adding restrictions to it until they’re satisfied with the legality of these cottage food businesses, and we’re seeing that happen in H187.

    For a little perspective: H106 would be difficult — if not impossible — to pass in most states, as it is. It is very friendly to cottage food businesses and disregards many of the concerns that most cottage food laws address (I’m not saying those concerns are valid, but they are concerns to health depts nonetheless). Wyoming is an exceptional state… most states just aren’t like it. Wyoming is currently on the brink of signing a bill into law which would provide its CFOs with more ease and flexibility than any current cottage food law, by far. It’s great that they are leading the way, but most states will be much more apprehensive until that model gets more common. That’s why it’s not surprising to me that H106 is being ignored, and H187 is adding many restrictions to it so that it can actually be passed, and these CFOs can actually be legal under state law.

    While I understand your reasoning behind your speculation, it is incorrect. We worked closely with H&W (Patrick Guzzle) to ensure that it met their needs. The Department of Health and Welfare and all 7 health districts SUPPORT H106. The restrictions in H187 were demanded by the food processing industry. If H187 is killed the situation will remain where it is now: while you are correct that there is no formal authorization in the food code to deregulate cottage food operations, the health districts (independent agencies) do not want to spend their time and resources on non-Potentially Hazardous Foods. H187 would make the situation worse for Idaho cottage food producers. The key to this issue is the NW Food Processors & IORC pushed for additional regulations despite the request of Idaho H&W to not do so in a meeting of all involved.

    Ann, thanks for explaining and being patient with me. The more I learn about this, the more I’m learning that Idaho is a very unique state indeed. In most states, the health dept is typically the one opposed to a cottage food law. But in some states, there are other powers that are also resistant. Texas comes to mind as a state that had to fight with the health dept and big business to get a cottage food law passed, and the result was that it delayed the passage of a cottage food law by a couple years, and by the time one passed, it was very restrictive, but it was something. They’ve worked over the past five years to make it what it is today.

    Idaho is different because you already have something, and apparently it is working well. That is great to hear! You are truly lucky to have a health dept like that in your state. I can understand why the fact that the current practice is technically illegal is disconcerting to some, and therefore they want something codified, and I can also understand why you (and probably many in the state) would rather not have a law that will likely only make things worse.

    If H106 cannot be passed, wouldn’t that be an indication that the current practice in Idaho is, in fact, illegal, and shouldn’t be allowed by the health dept? I understand that the people want this, and the health dept wants this, but the legislative system is specifically setup to consider more than those needs. It is not setup to simply give people what they want. You may not like the way it works, but that is the way the system works nonetheless, correct? I’ve read that the long, arduous process of getting a bill passed, with all the check and balances that process contains, is very much an intentional part of the system, and sometimes a very frustrating one.

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