ESSB 5748 -
By Committee on Health & Human Services Appropriations & Oversight
ADOPTED AS AMENDED 04/07/2011
Strike everything after the enacting clause and insert the following:
"NEW SECTION. Sec. 1 The definitions in this section apply
throughout this chapter unless the context clearly requires otherwise.
(1) "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.
(2) "Cottage food products" means nonpotentially hazardous baked
goods; jams, jellies, preserves, and fruit butters as defined in 21
C.F.R. Sec. 150 as it existed on the effective date of this section;
and other nonpotentially hazardous foods identified by the director in
rule.
(3) "Department" means the department of agriculture.
(4) "Director" means the director of the department.
(5) "Domestic residence" means a single-family dwelling or an area
within a rental unit where a single person or family actually resides.
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.
(6) "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.
(7) "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.
NEW SECTION. Sec. 2 (1) The director may adopt, by rule,
requirements for cottage food operations. These requirements may
include, but are not limited to:
(a) The application and renewal of permits under section 3 of this
act;
(b) Inspections as provided under section 4 of this act;
(c) Sanitary procedures;
(d) Facility, equipment, and utensil requirements;
(e) Labeling specificity beyond the requirements of this section;
(f) Requirements for clean water sources and waste and wastewater
disposal; and
(g) Requirements for washing and other hygienic practices.
(2) A cottage food operation must package and properly label for
sale to the consumer any food it produces, and the food may not be
repackaged, sold, or used as an ingredient in other foods by a food
processing plant, or sold by a food service establishment.
(3) A cottage food operation must place on the label of any food it
produces or packages, at a minimum, the following information:
(a) The name and address 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;
(d) The net weight or net volume of the cottage food product;
(e) Allergen labeling as specified by the director in rule;
(f) If any nutritional claim is made, appropriate labeling as
specified by the director in rule;
(g) The following statement printed in at least the equivalent of
eleven-point font size in a color that provides a clear contrast to the
background: "Made in a home kitchen that has not been subject to
standard inspection criteria."
(4) Cottage food products may only be sold directly to the consumer
and may not be sold by internet, mail order, or for retail sale outside
the state.
(5) Cottage food products must be stored only in the primary
domestic residence.
NEW SECTION. Sec. 3 (1) All cottage food operations must be
permitted annually by the department on forms developed by the
department. All permits and permit renewals must be made on forms
developed by the director and be accompanied by an inspection fee as
provided in section 4 of this act, a seventy-five dollar public health
review fee, and a thirty dollar processing fee. All fees must be
deposited into the food processing inspection account created in RCW
69.07.120.
(2) In addition to the provision of any information required by the
director on forms developed under subsection (1) of this section and
the payment of all fees, an applicant for a permit or a permit renewal
as a cottage food operation must also provide documentation that all
individuals to be involved in the preparation of cottage foods have
secured a food and beverage service worker's permit under chapter 69.06
RCW.
(3) All cottage food operations permitted under this section must
include a signed document attesting, by opting to become permitted,
that the permitted cottage food operation expressly grants to the
director the right to enter the domestic residence housing the cottage
food operation during normal business hours, or at other reasonable
times, for the purposes of inspections under this chapter.
NEW SECTION. Sec. 4 (1) All cottage food operations must be
inspected for basic hygiene by the director both before initial
permitting under section 3 of this act and annually after initial
permitting. In addition, the director may inspect a cottage food
operation at any time in response to a foodborne outbreak or other
public health emergency.
(2) When conducting an annual basic hygiene inspection, the
director shall, at a minimum, inspect for the following:
(a) That the permitted cottage food operator understands that no
person other than the permittee, or a person under the direct
supervision of the permittee, may be engaged in the processing,
preparing, packaging, or handling of any cottage food products or be in
the home kitchen during the preparation, packaging, or handling of any
cottage food products;
(b) That no cottage food preparation, packaging, or handling is
occurring in the home kitchen concurrent with any other domestic
activities such as family meal preparation, dishwashing, clothes
washing or ironing, kitchen cleaning, or guest entertainment;
(c) That no infants, small children, or pets are in the home
kitchen during the preparation, packaging, or handling of any cottage
food products;
(d) That all food contact surfaces, equipment, and utensils used
for the preparation, packaging, or handling of any cottage food
products are washed, rinsed, and sanitized before each use;
(e) That all food preparation and food and equipment storage areas
are maintained free of rodents and insects; and
(f) That all persons involved in the preparation and packaging of
cottage food products:
(i) Have obtained a food and beverage service workers permit under
chapter 69.06 RCW;
(ii) Are not going to work in the home kitchen when ill;
(iii) Wash their hands before any food preparation and food
packaging activities; and
(iv) Avoid bare hand contact with ready-to-eat foods through the
use of single-service gloves, bakery papers, tongs, or other utensils.
(3) The department shall charge an inspection fee of one hundred
twenty-five dollars for any initial or annual basic hygiene inspection,
which must be deposited into the food processing inspection account
created in RCW 69.07.120. An additional inspection fee must be
collected for each visit to a cottage food operation for the purposes
of conducting an inspection for compliance.
(4) The director may contract with local health jurisdictions to
conduct the inspections required under this section.
NEW SECTION. Sec. 5 (1) The gross sales of cottage food products
may not exceed twelve thousand dollars annually. The determination of
the twelve thousand dollar annual gross sales must be computed on the
basis of the amount of gross sales within or at a particular domestic
residence and may not be computed on a per person basis within or at an
individual domestic residence.
(2) If gross sales exceed twelve thousand dollars in one year, the
cottage food operation must either obtain a food processing plant
license under chapter 69.07 RCW or cease operations.
(3) A cottage food operation exceeding twelve thousand dollars in
gross sales in one year is not entitled to a full or partial refund of
any fees paid under section 3 or 4 of this act.
(4) The director may request in writing documentation to verify the
annual gross sales figure.
NEW SECTION. Sec. 6 (1) For the purpose of determining
compliance with this chapter, the director may access, for inspection
purposes, any part, portion, or area of a domestic residence housing a
cottage food operation permitted by the director under this chapter.
This authority includes the authority to inspect any records required
to be kept under the provisions of this chapter.
(2) All inspections must be made at reasonable times and, when
possible, during regular business hours.
(3) Should the director be denied access to any domestic residence
housing a cottage food operation where access was sought for the
purposes of enforcing or administering this chapter, the director may
apply to any court of competent jurisdiction for a search warrant
authorizing access any part, portion, or area of a domestic residence
housing a permitted cottage food operation, upon which the court may
issue a search warrant for the purposes requested.
(4) Any access under this section must be limited to the purpose of
enforcing or administering this chapter.
NEW SECTION. Sec. 7 (1) After conducting a hearing, the director
may deny, suspend, or revoke any permit provided for in this chapter if
it is determined that a permittee has committed any of the following
acts:
(a) Refused, neglected, or failed to comply with the provisions of
this chapter, any rules adopted to administer this chapter, or any
lawful order of the director;
(b) Refused, neglected, or failed to keep and maintain records
required by this chapter, or to make the records available when
requested pursuant to the provisions of this chapter;
(c) Consistent with section 6 of this act, refused the director
access to any portion or area of a domestic resident housing a cottage
food operation for the purpose of carrying out the provisions of this
chapter;
(d) Consistent with section 6 of this act, refused the department
access to any records required to be kept under the provisions of this
chapter; or
(e) Exceeded the annual income limits provided in section 5 of this
act.
(2) The director may summarily suspend a permit issued under this
chapter if the director finds that a cottage food operation is
operating under conditions that constitute an immediate danger to
public health or if the director is denied access to the part, portion,
or area of a domestic residence housing a cottage food operation and
records where the access was sought for the purposes of enforcing or
administering this chapter.
NEW SECTION. Sec. 8 The rights, remedies, and procedures
respecting the administration of this chapter, including rule making,
emergency actions, and permit suspension, revocation, or denial are
governed by chapter 34.05 RCW.
NEW SECTION. Sec. 9 (1)(a) Any person engaging in a cottage food
operation without a valid permit issued under section 3 of this act or
otherwise violating any provision of this chapter, or any rule adopted
under this chapter, is guilty of a misdemeanor.
(b) A second or subsequent violation is a gross misdemeanor. Any
offense committed more than five years after a previous conviction
shall be considered a first offense.
(2) Whenever the director finds that a person has committed a
violation of any of the provisions of this chapter, and that violation
has not been punished pursuant to subsection (1) of this section, the
director may impose upon and collect from the violator a civil penalty
not exceeding one thousand dollars per violation per day. Each
violation shall be a separate and distinct offense.
NEW SECTION. Sec. 10 Except as otherwise provided in this
chapter, cottage food operations with a valid permit under section 3 of
this act are not subject to the provisions of chapter 69.07 RCW or to
permitting and inspection by a local health jurisdiction.
NEW SECTION. Sec. 11 Nothing in this chapter affects the
application of any other state or federal laws or any applicable
ordinances enacted by any local unit of government.
Sec. 12 RCW 69.07.120 and 1992 c 160 s 5 are each amended to read
as follows:
All moneys received by the department under the provisions of this
chapter and chapter 69.--- RCW (the new chapter created in section 14
of this act) shall be paid into the food processing inspection account
hereby created within the agricultural local fund established in RCW
43.23.230 and shall be used solely to carry out the provisions of this
chapter and chapters 69.--- RCW (the new chapter created in section 14
of this act) and 69.04 RCW.
Sec. 13 RCW 69.07.100 and 2002 c 301 s 10 are each amended to
read as follows:
(1) The provisions of this chapter shall not apply to
establishments issued a permit or licensed under the provisions of:
(((1))) (a) Chapter 69.25 RCW, the Washington wholesome eggs and
egg products act;
(((2))) (b) Chapter 69.28 RCW, the Washington state honey act;
(((3))) (c) Chapter 16.49 RCW, the Meat inspection act;
(((4))) (d) Chapter 77.65 RCW, relating to the direct retail
endorsement for wild-caught seafood;
(((5))) (e) Chapter 69.--- RCW (the new chapter created in section
14 of this act), relating to cottage food operations;
(f) Title 66 RCW, relating to alcoholic beverage control; and
(((6))) (g) Chapter 69.30 RCW, the sanitary control of shellfish
act. ((However,))
(2) If any such establishments process foods not specifically
provided for in the above entitled acts, ((such)) the establishments
((shall be)) are subject to the provisions of this chapter.
(3) The provisions of this chapter ((shall)) do not apply to
restaurants or food service establishments.
NEW SECTION. Sec. 14 Sections 1 through 11 of this act
constitute a new chapter in Title
Correct the title.
EFFECT: Creates a new chapter in Title 69 RCW dedicated to cottage foods; requires annual inspections of cottage food operations to be conducted by the Washington State Department of Agriculture (WSDA) or by a local health jurisdiction under contract with the WSDA; sets the maximum annual income of a cottage food operation at $12,000; sets fees associated with a cottage food permit at: $125 for inspection, $30 for processing, and $75 for public health review; provides specific inspection and warrant authority to the WSDA with acknowledgement by the applicants that they understand that inspections of their home will occur; specifies the items on which the WSDA inspector must focus; and establishes penalties for noncompliance. Specifies that a home kitchen may contain more than one stove or oven.