The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Regulated Industries
BILL: CS/SB 1158
INTRODUCER: Regulated Industries Committee and Senator Jones
SUBJECT: Home Kitchen Operations
DATE: February 9, 2022 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Oxamendi Imhof RI Fav/CS
2. AP
3. RC
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
CS/SB 1158 allows “home kitchen operations” to sell and offer for sale home kitchen food
products. Under the bill, a home kitchen operation means a natural person or an entity that stores,
handles, prepares, and packages food products at the residence of the natural person or at the
residence of a natural person who has an ownership interest in the entity and sells such products
in accordance with the requirements in the bill.
The bill defines a “home kitchen product” to mean food that is:
Stored, handled, prepared, and packaged by a home kitchen operation;
Not raw milk, a product of raw milk, raw oysters, or raw shellfish.
A home kitchen operation is not required to have a food establishment permit issued by the
Department of Agriculture and Consumer Services (department) if it complies with the home
kitchen operation requirements in the bill and has annual gross sales of home kitchen food
products that do not exceed $250,000.
In addition, a home kitchen operation may:
Only sell or provide home kitchen food products directly to consumers and may not sell or
provide home kitchen food products to any food reseller; and
Sell home kitchen food products to consumers in person or remotely by telephone, e-mail, or
website, including through a third-party website or mobile application.
BILL: CS/SB 1158 Page 2
The bill:
Limits food preparation and service to 10 individual meals per day;
Requires food to be prepared, cooked, and served on the same calendar day;
Authorizes sales via the Internet or in person;
Authorizes deliveries to be made directly to the consumer, to a specific event venue, or to the
consumer by the home kitchen operation or a third party delivery service;
Prohibits sales and deliveries of home kitchen food products at wholesale or retail;
Requires home kitchen operation owners and employees to successfully complete a food
safety education certificate training program;
Specifies labeling requirements;
Requires home kitchen operations to give the department access to records within 24 hours of
a request;
Allows the department to inspect home kitchen operations without a complaint;
Requires the department to investigate complaints and makes a refusal to permit entry and
inspection grounds for disciplinary action;
Authorizes immediate closures by the department if it determines that the continued
operation of a food establishment presents an immediate danger to the public health, safety,
and welfare;
Preempts the regulation of home kitchen operations to the state; and
Authorizes the department to impose an administrative fine not to exceed $5,000 for a
violation.
The bill takes effect July 1, 2022.
II. Present Situation:
Food Safety Laws
The Division of Food Safety within the Department of Agriculture and Consumer Services
(department) ensures that safe, wholesome, and properly labeled food is available to the public
through the permitting and inspection of “food establishments,”1 and inspection of food products
that are sold or produced in Florida.2 The department works in cooperation with the United
States Department of Agriculture and the Food and Drug Administration to help ensure
compliance with both state and federal regulations.3
1
Section 500.03(1)(p), F.S., defines the term “food establishment” to mean:
…a factory, food outlet, or other facility manufacturing, processing, packing, holding, or preparing food or
selling food at wholesale or retail. The term does not include a business or activity that is regulated under s.
413.051, [F.S.,] s. 500.80, [F.S.,] chapter 509, [F.S.], or chapter 601, [F.S.] The term includes tomato
packinghouses and repackers but does not include any other establishments that pack fruits and vegetables
in their raw or natural states, including those fruits or vegetables that are washed, colored, or otherwise
treated in their unpeeled, natural form before they are marketed.
2
Florida Department of Agriculture and Consumer Services, Division of Food Safety, available at:
http://www.freshfromflorida.com/Divisions-Offices/Food-Safety (last visited Feb. 3, 2022). See also ch. 500, F.S., the
Florida Food Safety Act.
3
Florida Department of Agriculture and Consumer Services, Food Establishments, available at:
https://www.fdacs.gov/Business-Services/Food/Food-Establishments (last visited Feb. 3, 2022).
BILL: CS/SB 1158 Page 3
A food establishment permit from the department is required to open a food establishment. The
department issues three different types of food establishment permits, including retail,
wholesale/manufactured, and medical marijuana treatment center edibles.4
A food establishment permit holder must allow access by the department or its duly authorized
agent during all reasonable hours to any food establishment, any food records, or any vehicle
being used to transport or hold food in commerce for the purpose of inspecting such
establishment, records, or vehicle to determine compliance with ch. 500, F.S., and any rule
adopted under that chapter5.
Cottage Food Operations
A cottage food operation is a natural person or entity that produces or packages food that is not
potentially hazardous in the residence of the natural person or at the residence of a natural person
who has an ownership interest in the entity and sells such products in accordance with cottage
food operation requirements of s. 500.80, F.S.6
Cottage food operations are not required to have a food establishment permit under s. 500.12,
F.S., dealing with the permit requirements for operators of food establishments and retail food
stores.7 Cottage food operations must comply with the cottage food law in s. 500.80, F.S., and
limit annual gross sales of cottage food products to less than $250,000 based on all sales of
cottage food products at any location, regardless of the types of products sold or the number of
persons involved in the operation. A cottage food operation must provide the department with
written documentation to verify its annual gross sales upon the department’s request to do so.8
Cottage food operations may sell, offer for sale, and accept payments for cottage food products
over the Internet or by mail order. Cottage food products may be delivered in person directly to
the consumer, to a specific event venue, or by United States Postal Service or commercial mail
delivery service. A cottage food operation may not sell, offer for sale, or deliver cottage food
products at wholesale.9 A cottage food operation may only sell cottage food products that are
stored on the premises of the operation.10
Cottage foods operations may only sell cottage food products which are prepackaged with a label
affixed that contains:11
The name and address of the cottage food operation;
The name of the cottage food product;
The ingredients of the cottage food product, in descending order of predominance by weight;
The net weight or net volume of the cottage food product;
4
See Florida Department of Agriculture and Consumer Services, Food Establishments, available at:
https://www.fdacs.gov/Business-Services/Food/Food-Establishments (last visited Feb. 3, 2022).
5
Section 500.147, F.S.
6
Sections 500.03(j), F.S.
7
See ss. 500.03(p) and (bb), F.S., defining the terms “food establishment” and “retail food store,” respectively.
8
Section 500.80(1), F.S.
9
Section 500.80(2), F.S.
10
Section 500.80(4), F.S.
11
Section 500.80(3), F.S.
BILL: CS/SB 1158 Page 4
Allergen information as specified by federal labeling requirements; and
If any nutritional claim is made, appropriate nutritional information as specified by federal
labeling requirements.
In addition, the label must have the following statement printed in at least 10-point type in a
color that provides a clear contrast to the background of the label: “Made in a cottage food
operation that is not subject to Florida's food safety regulations.”12
Section 500.80, F.S., does not exempt cottage food operations from any other state or federal tax
law, rule, regulation, or certificate.13
Cottage Food Products
A cottage food product is any food that is not a potentially hazardous food defined by department
rule which is sold by a cottage food operation in accordance with s. 500.80, F.S.14 The
department has not adopted a rule defining the term “potentially hazardous food,” but it has
adopted the U.S. Food and Drug Administration’s 2017 Food Code (Food Code).15
The Food Code defines the term “time/temperature controlled for safety food,” formerly referred
to as “potentially hazardous food,” as a “food that requires time/temperature control for safety
(TCS) to limit pathogenic microorganism growth or toxin formation.” The term includes:
Animal food that is raw or heat-treated;
Plant food that is heat-treated or consists of raw seed sprouts, cut melons, cut leafy greens,
cut tomatoes or mixtures of cut tomatoes that are not modified in a way so that they are
unable to support pathogenic microorganism growth or toxin formation; and
Garlic-in-oil mixtures that are not modified so that they are unable to support pathogenic
micro-organism growth or toxin formation.16
The department has identified the following foods as not potentially hazardous and therefore
permitted to be produced by a cottage food operation:
Loaf breads, rolls, biscuits;
Cakes, pastries, and cookies;
Honey;
Jams, jellies, and preserves made from high acid-fruits only;
Fruit pies and dried fruits;
Dry herbs, seasonings, and mixtures;
Homemade pasta;
Cereals, trail mixes, and granola;
Coated or uncoated nuts;
12
Id.
13
Section 500.80(5), F.S.
14
Section 500.03(k), F.S.
15
Fla. Admin. Code R. 5K-4.002(4)(a).
16
U.S. Food and Drug Administration, 2017 Food Code, subpart 1-201.10, defining “Time/Temperature Control for Safety
Food (formerly “potentially hazardous food” (PHF))” Certain foods may be designated as “product assessment required” due
to the interaction of their water content and pH values after heat treatment or packaging to control vegetative cells and spores.
Such foods are considered TCS food until further study proves otherwise.
BILL: CS/SB 1158 Page 5
Vinegar and flavored vinegars;
Popcorn and popcorn balls; and
Nut butters, including almond, peanut, cashew, etc. 17
Cottage Food Operations Investigations and Complaints
The department may only investigate a cottage food operation if it receives a complaint that a
cottage food operation has violated an applicable provision of state food products law18 or rule
adopted under such law.19 Upon a complaint, an officer or employee of the department may enter
and inspect the cottage food operation’s premises to determine compliance with applicable state
law and departmental rules. A cottage food operation’s refusal to permit an authorized officer or
employee to enter and inspect the premises is grounds for administrative disciplinary action
under s. 500.121, F.S.20
The cottage food operation provisions in s. 500.80, F.S., do not apply to any person operating
under a food permit issued pursuant to s. 500.12, F.S.21
Preemption
The regulation of cottage food operations is preempted to the state.22 A local law, ordinance, or
regulation may not prohibit a cottage food operation or regulate the preparation, processing,
storage, or sale of cottage food products by a cottage food operation; however, a cottage food
operation must comply with the conditions for the operation of a home-based business under
s. 559.955, F.S.23
Home-Based Businesses
Section 559.955, F.S., preempts the regulation of home-based businesses to the state. Counties
and municipalities may not enact or enforce any ordinance, regulation, or policy, or take any
action to license or otherwise regulate a home-based business.
A home-based business may operate in an area zoned for residential use and may not be
prohibited, restricted, regulated, or licensed in a manner different from other businesses in a local
government's jurisdiction, except as provided in s. 559.955, F.S. However, home-based
businesses are subject to applicable business taxes under ch. 205, F.S., in the county and
municipality in which the home-based business is located.24
17
See Department of Agriculture and Consumer Services, Division of Food Safety, Cottage Food Operations (July 2021),
available at: https://www.fdacs.gov/Business-Services/Food/Food-Establishments/Cottage-Foods (last visited Feb. 2, 2022).
18
Chapter 500, F.S.
19
Section 500.80(8), F.S.
20
Section 500.121, F.S., provides disciplinary procedures for violations of ch. 500, F.S., and applicable rules, including the
imposition of Class II administrative fines against a cottage food operation that violates ch. 500, F.S. A violation in the Class
II category carries a fine not to exceed $5,000 for each violation. See s. 570.971(1)(b), F.S.
21
Section 500.12, F.S., requires a permit issued by the department for any person operating a food establishment or retail
food store.
22
Section 500.80(4), F.S.
23
Section 500.80(6), F.S.
24
Section 559.955(2), F.S.
BILL: CS/SB 1158 Page 6
A business is considered a home-based business if it operates, in whole or in part, from a
residential property and meets the following criteria:25
The activities of the home-based business are secondary to the property's use as a residential
dwelling.
The business employees who work at the residential dwelling also reside in the residential
dwelling, except that up to two employees or independent contractors who do not reside at
the residential dwelling may work at the business.
Parking related to the business activities of the home-based business complies with local
zoning requirements. The business may not generate a need for parking greater in volume
than a similar residence where no business is conducted. Local governments may regulate the
parking or storage of heavy equipment at the business which is visible from the street.
As viewed from the street, the residential property is consistent with the uses of the
residential areas surrounding the property. Any external modifications to a home-based
business must conform to the residential character and architectural aesthetics of the
neighborhood. The home-based business may not conduct retail transactions at a structure
other than the residential dwelling; however, incidental business uses and activities may be
conducted at the residential property.
All business activities comply with any relevant local or state regulations concerning signage
and equipment or processes that create noise, vibration, heat, smoke, dust, glare, fumes, or
noxious odors. However, such regulations on a business, absent signage, may not be more
stringent than those that apply to a residence where no business is conducted.
All business activities comply with any relevant local, state, and federal regulations
concerning the use, storage, or disposal of hazardous materials. However, such regulations on
a business may not be more stringent than those applicable to a residence where no bus