Stricken language would be deleted from and underlined language would be added to present law.
Act 1040 of the Regular Session
1 State of Arkansas As Engrossed: S2/8/21 S3/3/21 S4/14/21 H4/21/21
2 93rd General Assembly A Bill
3 Regular Session, 2021 SENATE BILL 248
4
5 By: Senators B. Davis, B. Ballinger
6 By: Representative Payton
7
8 For An Act To Be Entitled
9 AN ACT TO CREATE THE FOOD FREEDOM ACT; TO EXEMPT
10 CERTAIN PRODUCERS OF HOMEMADE FOOD OR DRINK PRODUCTS
11 FROM LICENSURE, CERTIFICATION, AND INSPECTION; AND
12 FOR OTHER PURPOSES.
13
14
15 Subtitle
16 TO CREATE THE FOOD FREEDOM ACT; AND TO
17 EXEMPT CERTAIN PRODUCERS OF HOMEMADE FOOD
18 OR DRINK PRODUCTS FROM LICENSURE,
19 CERTIFICATION, AND INSPECTION.
20
21
22 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF ARKANSAS:
23
24 SECTION 1. Arkansas Code 20-57-201(1) and (2), concerning the
25 definitions of "cottage food production operation" and "food service
26 establishment", are amended to read as follows:
27 (1) Cottage food production operation means a person who
28 produces food items in the person's home that are not potentially hazardous
29 foods, including without limitation:
30 (A) Bakery products;
31 (B) Candy;
32 (C) Fruit butter;
33 (D) Jams;
34 (E) Jellies;
35 (F) Chocolate-covered fruit and berries that are not cut;
36 and
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1 (G) Similar products specified in rules adopted by the
2 Department of Health;
3 (2)(A)(i)(1)(A)(i) Food service establishment means any place
4 where food is prepared, processed, stored, or intended for use or consumption
5 by the public regardless of whether there is a charge for the food.
6 (ii) Food service establishment includes wholesale
7 and retail food stores, convenience stores, food markets, delicatessens,
8 restaurants, food processing or manufacturing plants, bottling and canning
9 plants, wholesale and retail block and prepackaged ice manufacturing plants,
10 food caterers, and food warehouses.
11 (iii) Food service establishment does not include
12 supply vehicles or locations of vending machines.
13 (B) The following are also exempt:
14 (i) Group homes routinely serving ten (10) or fewer
15 persons;
16 (ii) Daycare centers routinely serving ten (10) or
17 fewer persons;
18 (iii) Potluck suppers, community picnics, or other
19 group gatherings where food is served but not sold;
20 (iv) A person at a farmers' market that offers for
21 sale only one (1) or more of the following:
22 (a) Fresh unprocessed fruits or vegetables;
23 (b) Maple syrup, sorghum, or honey that is
24 produced by a maple syrup or sorghum producer or beekeeper; or
25 (c) Commercially prepackaged food that is not
26 potentially hazardous, on the condition that the food is contained in
27 displays, the total space of which equals less than one hundred cubic feet
28 (100 cu. ft.) on the premises where the person conducts business at the
29 farmers' market; or
30 (d) Homemade food or drink products under the
31 Food Freedom Act, 20-57-501 et seq.;
32 (v) A person who offers for sale at a roadside stand
33 only fresh fruits and fresh vegetables that are unprocessed or a homemade
34 food or drink product under the Food Freedom Act, 20-57-501 et seq.;
35 (vi)(a) A cottage food production operation, on the
36 condition that the operation offers its products directly to the consumer:
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1 (1) From the site where the products are
2 produced;
3 (2) At a physical or online farmers'
4 market;
5 (3) At a county fair;
6 (4) At a special event; or
7 (5)(A) At a pop-up shop within another
8 established business.
9 (B) As used in this subdivision
10 (2)(B)(vi)(a) , pop-up shop means a cottage food production operation
11 selling items in an unaffiliated established business for a limited time
12 period with the consent of the owner of the unaffiliated established business
13 and the owner or employee of the cottage food production operation being
14 present at the point of sale.
15 (b)(1) Upon request, each product offered
16 under subdivision (2)(B)(vi)(a) of this section shall be made available to
17 the department for sampling.
18 (2) Each product shall be clearly
19 labeled and shall make no nutritional claims.
20 (3) The label required under subdivision
21 (2)(B)(vi)(b)(2) of this section shall include the following:
22 (A) The name and address of the
23 business;
24 (B) The name of the product;
25 (C) The ingredients in the
26 product; and
27 (D) The following statement in 10-
28 point type: This Product is Home-Produced;
29 (vii)(vi) A maple syrup and sorghum processor and
30 beekeeper if the processor or beekeeper offers only maple syrup, sorghum, or
31 honey directly to the consumer from the site where those products are
32 processed or homemade food or drink products under the Food Freedom Act,
33 20-57-501 et seq., or both;
34 (viii)(vii) A person who offers for sale only one
35 (1) or more of the following foods at a festival or celebration, on the
36 condition that the festival or celebration is organized by a political
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1 subdivision of the state and lasts for a period not longer than seven (7)
2 consecutive days:
3 (a) Fresh unprocessed fruits or vegetables;
4 (b) Maple syrup, sorghum, or honey if produced
5 by a maple syrup or sorghum processor or beekeeper; or
6 (c) Commercially prepackaged food that is not
7 potentially hazardous, on the condition that the food is contained in
8 displays, the total space of which equals less than one hundred cubic feet
9 (100 cu. ft.); or
10 (d) Homemade food or drink products under the
11 Food Freedom Act, 20-57-501 et seq.;
12 (ix)(viii) A farm market that offers for sale at the
13 farm market only one (1) or more of the following:
14 (a) Fresh unprocessed fruits or vegetables;
15 (b) Maple syrup, sorghum, or honey that is
16 produced by a maple syrup or sorghum producer or beekeeper; or
17 (c) Commercially prepackaged food that is not
18 potentially hazardous, on the condition that the food is contained in
19 displays, the total space of which equals less than one hundred cubic feet
20 (100 cu. ft.) on the premises where the person conducts business at the farm
21 market; or
22 (d) Homemade food or drink products under the
23 Food Freedom Act, 20-57-501 et seq.;
24 (x)(ix) An establishment that offers only
25 prepackaged foods that are not potentially hazardous as defined by the State
26 Board of Health; and
27 (xi)(x) Ice vending machines or kiosks where ice is
28 dispensed in the open air and that are totally self-contained; and
29 (xi) A producer or informed end consumer engaged in
30 transactions under the Food Freedom Act, 20-57-501 et seq.; and
31
32 SECTION 2. Arkansas Code 20-57-209 is repealed.
33 20-57-209. Pop-up shop inspections and restrictions.
34 (a) The Department of Health may inspect a cottage food production
35 operation that operates as a pop-up shop as defined in 20-57-
36 201(2)(B)(vi)(a)(5) within another established business.
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1 (b) A cottage food production operation that operates as a pop-up shop
2 shall not sell or offer for sale foods at wholesale distribution.
3
4 SECTION 3. Arkansas Code Title 20, Chapter 57, is amended to add an
5 additional subchapter to read as follows:
6 Subchapter 5 Food Freedom Act
7
8 20-57-501. Title.
9 This subchapter shall be known and may be cited as the "Food Freedom
10 Act".
11
12 20-57-502. Purpose.
13 The purpose of this subchapter is to allow for a producers production
14 and sale of homemade food or drink products for an informed end consumer and
15 to encourage the expansion of agricultural sales at farmers' markets,
16 ranches, farms, and producers homes or offices by:
17 (1) Facilitating the purchase and consumption of fresh and local
18 agricultural products;
19 (2) Enhancing the agricultural economy; and
20 (3) Providing citizens of Arkansas with unimpeded access to
21 healthy food and drink products from known sources.
22
23 20-57-503. Definitions.
24 As used in this subchapter:
25 (1)(A) Delivery means the transfer of a homemade food or drink
26 product resulting from a transaction between a producer and an informed end
27 consumer.
28 (B) "Delivery" includes the transfer of a homemade food or
29 drink product to an informed end consumer by the producer or producers
30 designated agent at a farm, ranch, farmers' market, home, office, or any
31 location permitted under this subchapter or agreed to between the producer
32 and the informed end consumer;
33 (2) Farmers' market means a common facility or area where
34 several vendors may gather on a regular, recurring basis to sell a variety of
35 fresh fruits and vegetables, locally grown farm products, and other items
36 permitted under this subchapter directly to consumers;
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1 (3) Homemade food or drink product means a food or drink
2 product that is processed at the private residence of the producer, including
3 a farm or ranch where the producer resides, that is exempt from state
4 licensure, inspection, certification, and packaging and labeling
5 requirements, and that is non-time/temperature control for safety food;
6 (4) Informed end consumer means a person who:
7 (A) Is the last person to purchase any homemade food or
8 drink product;
9 (B) Does not resell the homemade food or drink product;
10 and
11 (C) Has been informed that the homemade food or drink
12 product:
13 (i) Is not regulated, inspected, certified, or
14 subject to state packaging or labeling requirements; and
15 (ii) Has not been processed in a facility that is
16 subject to state licensing, permitting, inspection, or regulation;
17 (5)(A) "Non-time/temperature control for safety food" means food
18 that does not require time or temperature control for safety to limit
19 pathogenic microorganism growth or toxin formation and as defined in the
20 rules of the Department of Health.
21 (B) "Non-time/temperature control for safety food"
22 includes without limitation pickled cucumbers and other acidified vegetables
23 that have an equilibrium pH of 4.6 or less if:
24 (i)(a) The recipe:
25 (1) Is from a source approved by the
26 department; or
27 (2) Has been tested by an appropriately
28 certified laboratory that confirmed the finished product has an equilibrium
29 pH value of 4.6 or less,
30 (b) If a recipe is not as described in
31 subdivision (5)(B)(i)(a), the producer shall test each batch of the recipe
32 with a calibrated pH meter to confirm the finished product has an equilibrium
33 pH value of 4.6 or less;
34 (ii) The batch is labelled with a unique number; and
35 (iii) The producer maintains records that include:
36 (a) The batch number;
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1 (b) The recipe used by the producer;
2 (c) The source of the recipe or testing
3 results if applicable; and
4 (d) The date that the batch was prepared;
5 (6) Process means operations a producer performs in the
6 preparing, producing, or processing of the producers homemade food or drink
7 products and includes cooking, baking, drying, mixing, cutting, fermenting,
8 preserving, dehydrating, growing, and raising;
9 (7) Producer means a person who processes homemade food or
10 drink products on the persons private residence;
11 (8)(A) "Time/temperature control for safety food" means food
12 that requires time or temperature control for safety to limit pathogenic
13 microorganism growth or toxin formation and as defined in the rules of the
14 department.
15 (B) "Time/temperature control for safety food" includes:
16 (i) An animal food that is raw or heat treated;
17 (ii) Food of plant origin that is heat treated or
18 consists of raw seed sprouts;
19 (iii) Cut leafy greens;
20 (iv) Cut tomatoes or mixtures of cut tomatoes; and
21 (v) Garlic-in-oil mixtures; and
22 (9) "Transaction" means the exchange of buying and selling in
23 person, by telephone or online, and the delivery of the homemade food or
24 drink product.
25
26 20-57-504. Food freedom.
27 (a) Unless otherwise provided in this section, homemade food or drink
28 products produced and sold in compliance with this subchapter are exempt from
29 state licensure, certification, inspection, and packaging and labeling
30 requirements.
31 (b) A transaction under this subchapter shall:
32 (1)(A) Be directly between the seller and the informed end
33 consumer.
34 (B) The seller of a homemade food or drink product may be
35 the producer of the homemade food or drink product, an agent of the producer,
36 or a third-party vendor, including a retail shop or grocery store;
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1 (2) Occur in Arkansas or in another state if the seller complies
2 with all applicable federal laws;
3 (3) Not involve the sale of meat, poultry, seafood, or
4 time/temperature control for safety food products;
5 (4) Be delivered by the producer, agent of the producer, third-
6 party vendor, or third-party carrier to the informed end consumer; and
7 (5) Satisfy the disclosure requirements in 20-57-505.
8
9 20-57-505. Disclosures.
10 (a) The following information shall be provided to the informed end
11 consumer as described in subsection (b) of this section:
12 (1) The date that the homemade food or drink product was
13 manufactured, produced, or processed;
14 (2) The n