DEPARTMENT OF AGRICULTURE

[Filed June 3, 2020, 6:44 a.m.]

Title of Rule and Other Identifying Information: Chapter 16-149 WAC, Cottage foods, the department is proposing amendments to this rule to align with the revised labeling requirements in HB 2217 (chapter 171, Laws of 2020), and to reflect the restructuring of chapter 69.04 RCW that moved the food related requirements into chapter 15.130 RCW.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: Effective June 11, 2020, HB 2217 (chapter 171, Laws of 2020) requires the label on cottage food products to list the permit number issued to the cottage food business instead of the physical address. The department is amending WAC 16-149-110 to mirror this change in the statute.

Effective June 7, 2018, all of the provisions regarding the regulation of food under chapter 69.04 RCW were moved under chapter 15.130 RCW. The department is replacing the reference to chapter 69.04 RCW in WAC 16-149-020 with a reference to chapter 15.130 RCW.

Reasons Supporting Proposal: During the 2020 legislative session, the Washington state legislature passed an amendment to the labeling requirements for licensed cottage food operators. The amendment removes the requirement for the label to contain the address of the cottage food business, instead it requires the operator to list their permit number. Ensuring that the rule language regarding labeling requirements matches what is in statute is necessary to reduce confusion for stakeholders and to ensure compliance.

Replacing the reference to chapter 69.04 RCW with chapter 15.130 RCW is necessary to accurately reflect the appropriate statute.

Statutory Authority for Adoption: RCW 69.22.020.

Statute Being Implemented: Chapter 69.22 RCW; and chapter 171, Laws of 2020.

Rule is not necessitated by federal law, federal or state court decision.

Name of Proponent: Washington state department of agriculture, governmental.

Name of Agency Personnel Responsible for Drafting, Implementation, and Enforcement: David Smith, 1111 Washington Street S.E., Olympia, WA 98504, 360-902-1952.

This notice meets the following criteria to use the expedited adoption process for these rules:

Adopts or incorporates by reference without material change federal statutes or regulations, Washington state statutes, rules of other Washington state agencies, shoreline master programs other than those programs governing shorelines of statewide significance, or, as referenced by Washington state law, national consensus codes that generally establish industry standards, if the material adopted or incorporated regulates the same subject matter and conduct as the adopting or incorporating rule.

Content is explicitly and specifically dictated by statute.

Explanation of the Reason the Agency Believes the Expedited Rule-Making Process is Appropriate: Replacing references to chapter 69.04 RCW with chapter 15.130 RCW and changing the labeling requirement to include the permit number rather than the physical address of the cottage food business meets the criteria for expedited adoption under RCW 34.05.353 (1)(b) by adopting Washington state statutes and RCW 34.05.353 (1)(d) because the content is explicitly and specifically dictated by statute.

THIS RULE IS BEING PROPOSED UNDER AN EXPEDITED RULE-MAKING PROCESS THAT WILL ELIMINATE THE NEED FOR THE AGENCY TO HOLD PUBLIC HEARINGS, PREPARE A SMALL BUSINESS ECONOMIC IMPACT STATEMENT, OR PROVIDE RESPONSES TO THE CRITERIA FOR A SIGNIFICANT LEGISLATIVE RULE. IF YOU OBJECT TO THIS USE OF THE EXPEDITED RULE-MAKING PROCESS, YOU MUST EXPRESS YOUR OBJECTIONS IN WRITING AND THEY MUST BE SENT TO Gloriann Robinson, Agency Rules Coordinator, Washington State Department of Agriculture, P.O. Box 42560, Olympia, WA 98504-2560, phone 360-902-1802, fax 360-902-2092, email wsdarulescomments@agr.wa.gov, AND RECEIVED BY August 3, 2020.

AMENDATORY SECTION(Amending WSR 16-06-014, filed 2/19/16, effective 3/21/16)

WAC 16-149-020Definitions.

(1) In addition to the definitions contained in this section and chapter 69.22 RCW, the definitions found in chapters ((69.04,)) 69.06, ((and)) 69.07, and 15.130 RCW, chapters 16-165, 16-167, and 246-215 WAC, and Title 21 C.F.R. may apply.

(2) For the purposes of this chapter, the following definitions apply:

"Adequate" means that which is needed to accomplish the intended purpose in keeping with good public health practices.

"Approved source" means a food source that is routinely and regularly inspected by a regulatory authority.

"Authorized person" means a person or persons who work with the cottage food operator in the preparation of cottage food products under this chapter.

"C.F.R." means the Code of Federal Regulations.

"Consumer" means a person who is a member of the public, takes possession of food for personal and nonbusiness use; is not functioning as an operator of a food establishment, such as a restaurant, bed and breakfast, or other business operation, or food processing plant; and does not offer the food for resale.

"Cottage food operation" means a person who produces cottage food products only in the home kitchen of that person's primary domestic residence in Washington and only for sale directly to the consumer.

"Cottage food operation permit" means a permit to produce and sell cottage food products under chapter 69.22 RCW.

"Cottage food products" means nonpotentially hazardous baked goods, candies, jams, jellies, preserves, and fruit butters as defined in 21 C.F.R. 150 as it existed on July 22, 2011; and other nonpotentially hazardous foods identified in WAC 16-149-120.

"Department" means the department of agriculture.

"Director" means the director of the department of agriculture.

"Domestic residence" means a single-family dwelling or an area within a rental unit where a single person or family actually resides. A domestic residence does not include:

(a) A group or communal residential setting within any type of structure; or

(b) An outbuilding, shed, barn, or other similar structure.

"Food worker card" means a food and beverage service worker's permit as required under chapter 69.06 RCW.

"Home kitchen" means a kitchen primarily intended for use by the residents of a home. It may contain one or more stoves or ovens, which may be a double oven, designed for residential use.

"Labeling" means written, printed or graphic matter affixed to or used in connection with the sales of a cottage food product and intended to communicate the characteristics of the cottage food product including, but not limited to, the origin, ingredients, quality, quantity, or nutritional benefits of the product.

"Master or base recipe" means a standard mixture of ingredients from which variations may be created by adding small amounts of differing flavorings, dried fruits, nuts, candies, or the like. For example, variations of master or base muffin recipe may be created by adding walnuts to create a walnut muffin, adding cranberries and orange zest to create orange cranberry muffins, and so on.

"Permitted area" means the portion of a domestic residence housing a home kitchen where the preparation, packaging, storage, or handling of cottage food products occurs.

"Pet" means any domesticated animal, regardless of species or number of legs, kept in the domestic residence.

"Potable water" means water that is in compliance with the Washington state department of health's drinking water quality standards in chapters 246-290 and 246-291 WAC.

"Potentially hazardous food" means foods requiring temperature control for safety because they are capable of supporting the rapid growth of pathogenic or toxigenic microorganisms, or the growth and toxin production of Clostridium botulinum.

AMENDATORY SECTION(Amending WSR 16-06-014, filed 2/19/16, effective 3/21/16)

WAC 16-149-110Labeling.

(1) A cottage food operation may only sell cottage food products which are prepackaged (except for certain products as outlined in subsection (2) of this section) with a label affixed that contains the following information (printed in English):

(a) The name and ((address))permit number issued under RCW 69.22.030 of the business of the cottage food operation;

(b) The name of the cottage food product;

(c) The ingredients of the cottage food product, in descending order of predominance by weight. Ingredients made from subcomponents must also list the subcomponents. For example, "imitation vanilla extract (water, sugar, caramel color, artificial flavor, citric acid, sodium benzoate (preservative))";

(d) The net weight or net volume of the cottage food product, metric weight is not required;

(e) Allergen information as specified by federal labeling requirements;

(f) If any nutritional claim is made, appropriate nutritional information as specified by federal labeling requirements; and

(g) The following statement printed in at least the equivalent 11-point type in a color that provides a clear contrast to the background label: "Made in a Home Kitchen that has not been subject to standard inspection criteria." ((A label sample is shown below.

(2) The department may allow large cakes or a container of bulk products to be handled and labeled in the following manner:

(a) Be protected from contamination during transportation to the consumer.

(b) Have a product label sheet with all the required information as listed in subsection (1) of this section provided to the consumer.