Category Archives: Food

Ohio General Assembly considers bills about Cottage Foods, Dogs on Patios

Written by Ellen Essman, Law Fellow, Agricultural & Resource Law Program

A few bills related to food preparation and dining in the great outdoors are on the move in the Ohio General Assembly.

One of the bills, Senate Bill 233, would allow those who produce cottage foods to do so in a firebrick oven on a patio connected to the producer’s residence.   According to Ohio law, cottage foods are non-hazardous and are produced in a person’s home.  Cottage foods can include, but are not necessarily limited to: bakery products, jams, jellies, candy, and fruit butter.  If passed, SB 233 would change the current law, which only allows cottage foods to be prepared in an oven or on a stove inside the cottage food producer’s residence.  SB 233 would allow producers to use both an inside oven and an outside firebrick oven.  The bill is currently being debated in the Senate Health, Human Services & Medicaid Committee.

Two identical bills concerning dogs on restaurant patios are working their way through the two houses of the General Assembly—House Bill 263 and SB 182.  The bills would prohibit state agencies and local boards of health from adopting rules banning dogs “in an outdoor dining area of a retail food establishment or food service operation.”  Even though the government would not be able to ban dogs in those areas, the bills would allow individual restaurants to decide to keep dogs out of their outdoor areas, with the exception of service dogs.  HB 263 is being considered in the House Economic Development, Commerce & Labor Committee.  SB 182 is currently being discussed in the Senate Health, Human Services & Medicaid Committee.

Will cottage food producers be able to make tasty treats in firebrick ovens?  Will your canine companion generally be allowed to accompany you on restaurant patios throughout Ohio?  Stay tuned to the Ag Law Blog for any updates on these bills.

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Bill proposes immunity for Ohio beekeepers

ENT-79-honey-bee-hivesThe first hearing for a bill that would limit legal liability for Ohio beekeepers took place this week before the House Economic Development, Commerce and Labor Committee. The bill’s sponsor, Rep. Dick Stein (R-Norwalk), offered several reasons for the proposal, including that beekeeping has recently grown in popularity along with increased demand for honey products, bees play an important role in pollinating plants and contribute to the agricultural economy, and beekeepers have incurred expenses defending themselves against lawsuits that are typically unsuccessful.

House Bill 392 aims to provide immunity from liability for any personal injury or property damage that occurs in connection with keeping and maintaining bees, bee equipment, queen breeding equipment, apiaries, and appliances, as long as the beekeeper does all of the following:

  1. Registers the  with the Ohio Department of Agriculture, as is currently required by Ohio law;
  2. Operates according to Ohio Revised Code Chapter 909, which contains provisions for apiaries;
  3. Implements and complies with the best management practices for beekeeping as established by the Ohio State Beekeepers Association; and
  4. Complies with local zoning ordinance provisions for apiaries. Note that zoning ordinances for apiaries would exist only in incorporated areas, as Ohio’s “agricultural exemption from zoning” prohibits townships and counties from using zoning to regulate agricultural activities like beekeeping.

A beekeeper would not have immunity from liability resulting from intentional tortious conduct or gross negligence, however.

The second hearing for the bill will take place on December 5, 2017. Information about the proposal is available here.

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USDA Sued over Country of Origin Labeling Regulations

Written by Ellen Essman, Law Fellow, OSU Agricultural & Resource Law Program

On June 19, 2017, the Ranchers-Cattlemen Action Legal Fund, United Stockgrowers of America (R-CALF USA) and the Cattle Producers of Washington (CPoW) sued the United States Department of Agriculture (USDA) and the Secretary of Agriculture, Sonny Perdue, over the legality of the current country of origin labeling  (COOL) regulations.  R-CALF USA and CPoW claim that USDA’s current COOL regulations do not require foreign beef and pork products to be labeled as such, and that in fact, the regulations allow the foreign meat to “be passed off as domestic products.”  This, they argue, hurts U.S. cattle and hog producers, as well as U.S. consumers.  The suit was filed in the U.S. District Court for the Eastern District of Washington, in Spokane.  In short, R-CALF USA and CPoW are asking the court to rule that the current COOL regulations are at odds with two federal laws: the Meat Inspection Act and the Tariff Act.

 Federal laws relating to Country of Origin Labeling

According to R-CALF USA and CPoW, two laws—the Meat Inspection Act and the Tariff Act—must be taken into account when thinking about COOL.  R-CALF USA and CPoW argue that read together, these two laws require imported meat from cattle and hogs to possess country of origin labels.

The Meat Inspection Act, at 21 U.S.C. §620(a), says that imported meat must “be marked and labeled as required by such regulations for imported articles.” “[R]egulations for imported articles” are governed by the Tariff Act.  The Tariff Act, in 19 U.S.C. §1304(a), states that “every article of foreign origin (or its container…) imported into the United States shall be marked in a conspicuous place…in such a manner as to indicate to an ultimate purchaser in the United States the English name of the country of origin of the article.”

Regulatory history

In the lawsuit, the parties argue that historically, USDA pork and beef regulations did not follow their understanding of the Meat Inspection and Tariff Acts, discussed above.  In other words, the regulations did not require COOL.  The 2002 Farm Bill changed that.  The parties say that the 2002 Farm bill had the “primary effect of requiring” COOL on meat products from animals imported into the U.S. and subsequently slaughtered after importation.

Following the Farm Bill’s lead, USDA changed its regulations concerning meat imported into the U.S. from other countries, including meat from hogs and cattle.  The regulation, found in 7 C.F.R. § 65.300, was finalized in 2009.  It stated that meat “derived from an animal that was slaughtered in another country shall retain [its] origin, as declared to the U.S. Customs and Border Protection at the time the product entered the United States, through retail sale,” or sale to the end consumer.  Therefore, COOL was required on meat imported into the U.S. The regulation also allowed for the “origin declaration” on labels to “include more specific location information related to production steps.”   This meant that the labels for beef and pork could include where the animals were born, raised, and slaughtered.

World Trade Organization decision and change to regulations

After the new COOL regulations went into place, they were challenged by Canada and Mexico.  The World Trade Organization (WTO) ultimately sided with Canada and Mexico.  WTO’s reasoning for this decision is outlined in a Congressional Research Service Report on the dispute, and was based on their finding that “COOL treats imported livestock less favorably than U.S. livestock.”

Following the WTO decision, Congress determined that beef and pork—both alive and slaughtered—no longer required COOL.  Similarly, USDA removed meat from cattle and hogs from its COOL regulations.  These actions, the parties argue, went too far.  R-CALF USA and CPoW argue that the WTO decision only involved cattle and hogs that were imported live, as opposed to imported meat.

It is important to note that a number of other foods are still required to have COOL, including lamb, goat, chicken, farm-raised fish and shellfish, fresh and frozen fruits and vegetables, peanuts, pecans, macadamia nuts, and ginseng.  More information on COOL can be found here.

R-CALF USA and CPoW’s argument

Ultimately, the parties argue that USDA went too far when they removed all meat from cattle and hogs from their COOL labeling requirements.  They argue that the WTO decision focused on live hogs and cattle, as opposed to meat from those animals, and that WTO never “call[ed] into question the marks and labels required by the Tariff Act” for meat.  Thus, they argue that USDA regulations should continue to follow the Meat Inspection and Tariff Acts, as they did following the 2002 Farm Bill.

R-CALF and CPoW claim that as a result of USDA’s far-reaching retraction of COOL regulations, “beef and pork from animals in other countries” is permitted to have the “same labels as domestic meat.”  They claim that now, “imported beef and pork can even be labeled a ‘Product of the U.S.A.’” As a consequence of this type of labeling, the parties claim that both U.S. consumers and producers are harmed.

Conclusion

R-CALF and CPoW’s lawsuit heavily relies on the authority of the Tariff Act and the Meat Inspection Act.  Their argument, in its most basic form, is that the two laws require COOL for beef and pork, and that the WTO decision did not ever call those two laws into question.  Therefore, they feel that the change in regulations went further than was necessary to comply with the WTO decision.

The defendants named, USDA and Secretary Sonny Perdue, have not yet filed their response to the lawsuit.

R-CALF USA and CPoW’s lawsuit can be read here.

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Ohio Department of Agriculture proposes amendments to maple syrup, sorghum, and honey regulations

Written by Ellen Essman, Law Fellow, OSU Agricultural & Resource Law Program

The Ohio Department of Agriculture (ODA) will hold a public hearing on July 19, 2017 at 9:00 a.m. to accept written and oral comments on its proposed amendments to the maple syrup, sorghum, and honey rules in the Ohio Administrative Code (OAC).

Amendments and changes to the maple syrup, sorghum, and honey rules are proposed for parts of OAC chapters 901:3-44, 901:3-45, and 901:3-46, including substantive changes that address antibiotics in honey, grades and standards for maple syrup, labeling related to maple syrup grades, and requirements for food grade materials to be used for honey, maple syrup, and sorghum.   With these proposed changes and amendments, ODA seems to be trying to make the rules for honey, maple syrup, and sorghum more in line with federal rules and standards.  In addition, safety of honey, maple syrup, and sorghum products seems to be at the forefront with a broader antibiotic exclusion in honey products, and the requirement to use “food grade materials” for honey, maple syrup, and sorghum. The sections below will discuss each of these proposed changes in turn.

No antibiotics allowed in honey

It is proposed that OAC 901:3-44-01 be amended to remove references to specific antibiotics and to instead simply state that any antibiotics, in any amount, “render the honey” or its beeswax as “adulterated.”

Maple syrup rules to correspond with federal rules and standards

ODA has proposed striking the current OAC 901:3-45-01, which outlines voluntary grades and standards for maple syrup, and replacing it with language that incorporates the grading and color classifications put forth by the United States Department of Agriculture (USDA).  In other words, ODA is proposing that Ohio replace its current language with the grades and color classifications for maple syrup used by the federal government.  What is more, if this amendment is adopted, it appears as though grading and color classifications would no longer be voluntary.

ODA’s proposed amendment for OAC 901:3-45-03 involves deleting “Ohio” and inserting “U.S.”  This change would mean that the labeling requirements for grading maple syrup would follow federal standards instead of state standards.  The adoption of federal grade labeling, as well as of federal grading and color classifications, would make it easier to sell and ship maple syrup produced in Ohio outside of the state.

Food grade materials for honey, maple syrup, and sorghum

The proposed changes to OAC 901:3-45-04, 901:3-45-05, 901:3-46-06, 901:3-46-07 all include the addition of the requirement that containers be made of food grade materials. Accordingly, the proposed changes would require that all of the following be made of food grade materials:

  • Maple syrup packaging,
  • Bulk containers (barrels, drums, etc.) for maple syrup,
  • Packaging for products from maple syrup processors, sorghum processors, and beekeepers exempt from mandatory inspection, and
  • Bulk containers for products from maple syrup processors, sorghum processors, and beekeepers exempt from mandatory inspection.

“Food grade material” is defined in OAC 901:3-46-01 as “a material that when in contact with food will remain safe, durable, free of rust, non-absorbent, and will not allow the migration of deleterious substances, impart color, odor, or taste to food under normal use.”

More information about attending the hearing or sending in comments (including when written comments must be received), and a brief overview of each change is available here.   A draft of the proposed amendments and revisions is here.

 

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Congress Finalizes Mandatory GMO Labeling Law

After several years of debate over voluntary versus mandatory GMO labeling, Congress passed legislation yesterday to create a unified national standard requiring disclosure of information for bioengineered foods.  Read this post on our new blog site, here.

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Changes Made to Ohio’s Cottage Food Regulations

The Ohio Department of Agriculture (ODA) has revised regulations that implement Ohio’s Cottage Food Law, which addresses the production and sale of certain “non-potentially hazardous” foods. An operation producing a “cottage food” may do so without licensing and inspection by ODA, but must follow labeling requirements and is subject to potential food sampling by ODA.

Changes to Ohio’s cottage food regulations include the following:

New cottage food products

Several new food items have joined the list of cottage food products that an operator may produce without licensing or inspection by ODA:

  1. Flavored honey produced by a beekeeper, if a minimum of 75% of the honey is from the beekeeper’s own hives;
  2. Fruit chutneys;
  3. Maple sugar produced by a maple syrup processor, if at least 75% of the sap used to make the maple syrup is collected directly from trees by the processor;
  4. Waffle cones dipped in candy;
  5. Dry soup mixes containing commercially dried vegetables, beans, grains, and seasonings.

Foods that are not cottage food products

Two revisions clarify foods that do not fall under the cottage food law:

  1. Fresh fruit that is dipped, covered, or otherwise incorporated with candy;
  2. Popping corn.

Fruit in granola products

If adding fruit to granola, granola bars, or granola bars dipped in candy, which are all cottage food products, the fruit must be commercially dried.

The new regulations became effective January 22, 2016. View the cottage food regulations at http://codes.ohio.gov/oac/901%3A3-20.  Read our other posts on Ohio’s Cottage Food Law at http://aglaw.osu.edu/blog-categories/food.

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Sampling Home-Based Food Products: Keeping You Responsible for a Safe Food Product

So far in a series of posts, we’ve discussed how to sell your baked goods at farmer’s markets (here), what’s required for a home bakery license (here), and how to label and package your home-based food products (here). These posts have all discussed the requirements for producing and selling food products as a cottage food producer and under a home bakery license in Ohio. We continue the series with a description of how food sampling is conducted by the Ohio Department of Agriculture (ODA) for these home-based food products.

One of the benefits of being a cottage food producer or obtaining a home bakery license is how few conditions there are to meet in order to sell your food product in Ohio because these foods have lower food safety risks than other food products.  For example, if you want to sell cottage food products, you are not required to have your home kitchen inspected and you do not have to pay any type of licensing fee (since no license is required). If you want to sell food products under a home bakery license, your home kitchen must be inspected by the ODA and you will have to pay a $10 license fee every year.  For a more in depth explanation of cottage food products and home bakery licenses, see the posts mentioned above.

Even though there are lower risks and few requirements for selling home-based food products, you still have an obligation to ensure a safe food product. Compared to a restaurant, which could be inspected multiple times over the year, there is very little oversight when it comes to producing cottage food products and food products produced under a home bakery license. However, ODA does maintain some oversight in the form of food sampling.

What is food sampling?

Food sampling is conducted to determine if a food product has been misbranded or adulterated.

Misbranded Food

Under Ohio Revised Code Section 3715.60, a food product is considered misbranded if:

  1. Its labeling is false or misleading
  2. It is offered for sale under the name of another food
  3. Its container is made, formed, or filled to be misleading
  4. It is an imitation of another food, unless its label contains, in type of uniform size and prominence, the word “imitation,” and immediately thereafter the name of the food imitated
  5. When it is in package form, it does not bear a label containing:
    1. The name and place of the business of the producer
    2. An accurate statement of the quantity of the contents in terms of weight, measure, or numerical count (reasonable variations are permitted)
    3. For cottage food products – if the label fails to contain any of the information required for a cottage food label (see Labeling post mentioned above)
  6. Any word, statement, or other information required to appear on the label or labeling is not prominently placed with conspicuousness as compared with other words, statements, designs, or devices, in the labeling, and in such terms to render it likely to be read and understood by the ordinary individual under customary conditions of purchase and use
  7. It claims to be, or is represented as, a food for which a definition and standard of identity have been prescribed by statute or rule, unless:
    1. It conforms to such definition and standard
    2. Its label bears the name of the food specified in the definition and standard, and, insofar as may be required by such statute or rules, the common names of optional ingredients, other than spices, flavoring, and coloring, present in such food.
  8. It claims to be or is represented as:
    1. A food for which a standard of quality has been prescribed by rule in Section 3715.02 of the Revised Code and its quality falls below the standard unless its label bears, in the manner and form the rules specify, a statement that it falls below the standard;
    2. A food for which a standard or standards of fill of container have been prescribed by rule in Section 3715.02 of the Revised Code, and it falls below the standard of fill of container applicable, unless its label bears, in the manner and form the rules specify, a statement that it falls below the standard.
  9. It is not subject to the provisions described above in section 7, unless it bears labeling clearly giving:
    1. The common or usual name of the food, if any
    2. In case it is fabricated from two or more ingredients, the common or usual name of each ingredient; except that spices, flavorings, and colorings, other than those sold as such, may be designated as spices, flavorings, and colorings, without naming each. However, if providing the common or usual name of each ingredient is impractical or results in deception or unfair competition, exemptions will be established by the Director of Agriculture.
  10. It purports to be or is represented to be for special dietary uses, unless its label contains the information concerning its vitamin, mineral, and other dietary properties to fully inform purchasers as to its value for such uses
  11. It bears or contains any artificial flavoring, artificial coloring, or chemical preservatives, unless the label states that fact

Adulterated Food

Under Ohio Revised Code Section 3715.59, food is considered adulterated if any of the following apply to the food product:

  1. It bears or contains any poisonous or deleterious substance that may render it injurious to health
  2. It bears or contains any added poisonous or added deleterious substance that is unsafe
  3. It consists in whole or in part of a diseased, contaminated, filthy, putrid, or decomposed substance, or if it is otherwise unfit for food
  4. It has been produced, processed, prepared, packed, or held under unsanitary conditions where it may have become contaminated with filth, or where it may have been rendered diseased, unwholesome, or injurious to health
  5. It is the product of a diseased animal or an animal that has died otherwise than by slaughter, or an animal that has been fed upon the uncooked offal from a slaughterhouse
  6. Its container is composed, in whole or in part, of any poisonous or deleterious substance that may render the contents injurious to health
  7. Any valuable constituent has been, in whole or in part, omitted or abstracted from the food
  8. Any substance has been substituted wholly or in part for the food
  9. Damage or inferiority has been concealed in any manner
  10. Any substance has been added to, mixed, or packed with the food to increase its bulk or weight, reduce its quality or strength, or make it appear better or of greater value than it is
  11. It is confectionery and it bears or contains any alcohol or nonnutritive article or substance other than harmless coloring, harmless flavoring, harmless resinous glaze not in excess of four-tenths of one per cent, harmless natural wax not in excess of four-tenths of one per cent, harmless natural gum, or pectin, except this does not apply to any confectionery by reason of its containing less than one-half of one per cent by volume of alcohol derived solely from the use of flavoring extracts, or to any chewing gum by reason of its containing harmless nonnutritive masticatory substances
  12. It bears or contains a coal-tar color other than one from a batch certified under authority of the Federal Food, Drug and Cosmetic Act
  13. It has been processed or produced in violation of the cottage food rules

When are home-based food products subject to sampling?

Food sampling is usually conducted either randomly or under specific circumstances.

Random Sampling

You likely won’t even know if your food product has been randomly sampled, unless the food product comes back from testing with an issue. The Director, or someone the Director authorizes, will purchase home-based food products that have been placed in the marketplace. The most common scenario for when your home-based food product could be subject to random food sampling is if you sell it to a retail food establishment or food service operation, such as a restaurant or grocery store. According to the Ohio Department of Agriculture, random sampling does not usually occur at farmer’s markets. Random food sampling also does not usually occur when you are selling your food product directly to the customer from your home, where the product is produced.

Specific Circumstances

Under Ohio Revised Code Section 3715.02(B), home-based food products are specifically subject to food sampling when:

  1. A food, food additive, or food packaging material is the subject of a consumer complaint;
  2. A consumer requests the sampling after a physician has isolated an organism from the consumer as the physician’s patient;
  3. A food, food additive, or food packaging material is suspected of having caused an illness;
  4. A food, food additive, or food packaging material is suspected of being adulterated or misbranded;
  5. A food, food additive, or food packaging material is subject to verification of food labeling and standards of identity; and
  6. At any other time the director considers a sample analysis necessary.

What happens if there was an issue with your food product?

If your food product has been subject to food sampling and an issue is found with your product, then you will be contacted by ODA. They will make you aware of what the issue was, such as your product tested positive for a pathogen like E.coli or maybe you forgot to list an ingredient that was found in your product. ODA will then likely inspect your home kitchen. If a pathogen was found, the inspection will likely be focused on figuring out how the problem occurred and how you can remedy it. If your food product is in the marketplace, then a recall may need to be issued.

Home-produced food products typically are not a common source of consumer complaints. But just because there are not as many complaints associated with these types of food products doesn’t mean you should be lax in the way you prepare your food products. Preparing safe food products for your customers is essential. Food sampling is a way ODA helps to ensure your business is doing just that.

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