SB2106 SD1

SECTION 1. The legislature finds that local food production is integral to the State's economic development and food security. The legislature recognizes that what the department of health calls "homemade food" is what most states define as "cottage food". Cottage food, or homemade food that is sold directly to consumers, is a small but growing industry, and is preferred among many consumers who are mindful of responsible sourcing and healthy eating options and those who want to support the local communities and individuals producing the foods they consume.

The legislature further finds that there is great interest in small-scale homemade food operations in the State, but the existing regulatory framework creates several challenges for entrepreneurs, including those in rural areas who do not have access to commercial or certified kitchens or those who no longer have access to commercial or certified kitchens. In fact, Hawaiʻi is one of only a few remaining states that does not provide certain exemptions from its department of health for homemade food products. The legislature further recognizes that expanding access to local homemade food products should require the same food safety training and certification as that required of other food establishments in the State.

The legislature further believes that permitting homemade food operations in the State would grow small businesses; foster innovation and economic growth; offer locally made alternatives to imported brands; create local employment opportunities; keep more money within the local economy; and increase tax revenues to support the growing needs of the State, including ongoing wildfire relief efforts. Notably, the legislature also believes that implementing exemptions for small-scale homemade food operations will provide a valuable opportunity for local entrepreneurs to bring their homemade food products to market and can serve as an essential lifeline for producers impacted by the recent Maui wildfires.

Accordingly, the purpose of this Act is to establish the Access to Local Value-Added Products Act and allow homemade food operations to sell homemade food products, under certain conditions.

SECTION 2. Chapter 328, Hawaii Revised Statutes, is amended by adding a new part to be appropriately designated and to read as follows:

"Part . ACCESS TO LOCAL VALUE-ADDED PRODUCTS ACT: homemade food operations

§328-A definitions. For purposes of this part, the following definitions shall apply:

"Delivered" means to be transferred from a homemade food operator to a consumer, either immediately upon sale or at a time thereafter.

"Farm kitchen" means a kitchen that is designed for private use, is located in a building on a farm and not in a private home, and complies with all applicable building and zoning laws.

"Home kitchen" means a kitchen designed and intended for use by the residents of a private home. A home kitchen may contain one or more stoves, ovens, and other pieces of equipment designed for residential use as allowed by county building ordinances. A home kitchen may also contain one or more pieces of equipment designed for commercial use if allowed by county building ordinances.

"Homemade food operation" means an enterprise that is operated by a homemade food operator and produces homemade food products only in the home kitchen of the homemade food operator's private home or in a farm kitchen pursuant to this part.

"Homemade food operator" means a person who operates a homemade food operation in the person's private home kitchen or farm kitchen and who is the owner of the homemade food operation.

"Homemade food product" means a food prepared for sale in the private home kitchen or farm kitchen of a homemade food operation.

"Potentially hazardous homemade food product" means a food that requires time or temperature control for safety to limit pathogenic microorganism growth or toxin formation.

"Prepared" means a homemade food product that has been acidified, baked, cooked, cut, dehydrated, dried, fermented, grown, mixed, pickled, preserved, raised, or otherwise processed.

"Private home" means a dwelling, including an apartment or other leased space where individuals reside, that complies with all applicable county ordinances if used in the production of homemade food products.

"Seller" means a person or entity, other than a homemade food operator, who sells a non-potentially hazardous homemade food product to a consumer.

§328-B Requirements for homemade food operations; rules. (a) A homemade food operation shall be required to obtain a permit from the department pursuant to section 328-C.

(b) A homemade food operation shall submit proof of a valid food handlers education certificate, issued by the department or other food handler training certificate program accredited by the American National Standards Institute, for each homemade food operator.

(1) Freeze drying;

(2) Jelly, jam, preserve, and conserve making;

(3) Acidifying and pasteurizing low-acid products;

(4) Pasteurized pickling;

(5) Pasteurized fermenting; or

(6) Dehydrating;

shall submit proof of a valid certificate from Hawaii Master Food Preservers, Inc. or a comparable department-approved certificate for each homemade food operator in addition to the requirements of subsection (b).

(d) In lieu of a valid certificate from Hawaii Master Food Preservers, Inc. or comparable department-approved certificate, a homemade food operation that sells products using the preservation methods under subsection (c) shall submit a food sample of the product to be sold to consumers to a department-approved laboratory or food testing facility to have the food tested and the recipe approved for appropriate pH and water values for food safety. A homemade food operation that sells a product made through the use of preservation methods that does not have proof of a valid certificate from Hawaii Master Food Preservers, Inc. or a comparable department-approved certificate shall:

(1) Only sell products made from recipes that have been approved by:

(A) The department pursuant to this subsection;

(B) Organizations and institutions such as the National Center for Home Food Preservation; Hawaii Master Food Preservers, Inc.; or universities with participating master food preservers; or

(C) Additional organizations and institutions approved by the department that approve recipes for appropriate pH and water values for food safety; and

(2) Maintain proof that the recipe for the product being sold comes from an approved source.

(e) A homemade food product that is prepared by using the preservation methods in subsection (c) shall be classified as a non-potentially hazardous homemade food product by the department; provided that the requirements of subsections (c) or (d) are met.

(f) The department shall post the requirements for homemade food operations pursuant to this part on its website.

(g) The department may adopt rules on food safety training, food testing, and permitting pursuant to chapter 91 to carry out the purposes of this part.

§328-C Homemade food operations; requirements; permit; fee. (a) Each homemade food operation shall:

(1) Specify in its permit application:

(A) The names of each of its homemade food operators; and

(B) Its hours of operations;

(2) Submit proof of applicable certificates pursuant to section 328-B; and

(3) Agree to allow the department to enter and inspect at the hours specified under paragraph (1)(B) its home kitchen to conduct an inspection pursuant to section 382-F.

(b) An application fee in the amount of $25 shall be collected by the department with each permit application under this section.

(c) A homemade food operation shall not engage in business unless the homemade food operation has registered with the department and been issued a permit pursuant to this section.

(d) The department shall issue a permit to a homemade food operation that meets the requirements of this section.

(e) The homemade food permit shall authorize the homemade food operation to engage in direct and remote sale of their homemade food products at multiple locations, including by telephone or the Internet, subject to the conditions provided in section 328‑E.

(f) The homemade food permit shall be valid for one year after the date of issuance and shall authorize the homemade food operator to sell homemade food products for a three hundred sixty-five-day period; provided that, if the homemade food operator's permit remains valid and unencumbered within the first year of issuance, subsequently renewed permits shall remain valid for two years.

(g) Any food permit issued to a homemade food operation prior to July 1, 2024, shall remain in full force and effect until the department issues the homemade food operation a new permit pursuant to this section.

§328-D Homemade food products; labeling requirements. (a) Any homemade food product produced by a homemade food operation shall be labeled as a homemade food product. The label shall be displayed in a conspicuous place pursuant to subsection (b), and shall contain, in clearly displayed and legible type, the following:

(1) The words "Made in a Home or Farm Kitchen not routinely inspected by the Department of Health";

(2) Common name of the product or other descriptive name;

(3) Allergen identification information as specified under section 403 of the Federal Food, Drug, and Cosmetic Act, title 21 United States Code section 343;

(4) Ingredients listed in descending order of predominance; and

(5) Name and contact information of the homemade food product operator.

The seller of any homemade food product shall have the information required by this section readily available upon request by a consumer.

(b) The information required by subsection (a) shall be provided:

(1) On a label affixed to the package if the homemade food product is packaged;

(2) On a label affixed to the container if the homemade food product is offered for sale from a bulk container;

(3) On a placard displayed at the point of sale if the homemade food product is neither packaged nor offered for sale from a bulk container; or

(4) On a webpage on which the homemade food product is offered for sale if the homemade food product is offered for sale on the Internet.

§328-E Homemade food products; exemption; conditions of sale and delivery; allowances. (a) The production and sale of homemade food products regulated under this part shall be exempt from all other licensing, permitting, inspection, packaging, and labeling laws administered by the department; provided that the conditions of subsection (b) and all labeling requirements of section 328-D are satisfied.

(b) Non-potentially hazardous homemade food products shall:

(1) Be sold by:

(A) The homemade food operator for direct sale to the consumer, whether in person or remotely, including by telephone or the Internet; or

(B) An agent of the homemade food operator or a third-party vendor, such as a retail shop or grocery store, to the consumer; and

(2) Be delivered to the consumer by:

(A) The homemade food operator;

(B) An agent of the homemade food operator or a third-party vendor, such as a retail shop or grocery store;

(D) Shipping.

For the purposes of this subsection, "direct sale" means a transaction between a homemade food operator and a consumer, whereby the consumer purchases the homemade food product directly from the homemade food operation and not from a third party. The term includes but is not limited to transactions at holiday bazaars, bake sales, food swaps, or other temporary events; transactions at farm stands and farmers' markets; or transactions occurring in person at the site of the homemade food operation.

(c) A homemade food operator may sell a potentially hazardous homemade food product to a consumer either in-person or remotely, including by telephone or the Internet; provided that only the homemade food operator shall deliver the potentially hazardous homemade food product to the consumer.

(d) Homemade food operations shall be allowed to the maximum extent permitted by federal law. The following food shall be allowed:

(1) Poultry, poultry byproducts, or poultry food products; provided that:

(A) The poultry had been raised by the homemade food operator pursuant to the exemption under title 9 Code of Federal Regulations section 381.10(c); or

(B) The poultry is from an inspected source, such as a retail store or similar-retail-type establishment exempted under title 9 Code of Federal Regulations section 381.10(d); and

(2) Seafood.

§328-F Homemade food operations; investigation. Nothing in this part shall be construed to limit the department in any investigation of a reported foodborne illness.

§328-G Homemade food operations; consultation. Nothing in this part shall preclude an agency from providing assistance, consultation, or inspection at the request of a homemade food operator or homemade food operation.

§328-H Homemade food operations; construction. This part shall not be construed to:

(1) Preclude the production or sale of food products otherwise permitted by law;

(2) Preclude the sale of live animals or portions of live animals before slaughter for future delivery;

(3) Change the regulation of other goods and services where homemade food products are also prepared, produced, or sold;

(4) Exempt producers or sellers of homemade food products from any applicable tax laws;

(5) Exempt producers or sellers of homemade food products from any applicable fishing or hunting laws;

(6) Exempt homemade food operations, homemade food operators, sellers, or homemade food products from any applicable federal law, including any federal law prohibiting the sale of certain food products in interstate commerce; or

(7) Exempt homemade food operators or sellers of homemade food products or homemade food products from any applicable law of another state.

§328-I Limitation of liability. The State and counties shall not be liable for claims associated with homemade food products distributed, delivered, or sold by homemade food operations, homemade food operators, or sellers, except for instances of gross negligence and intentional misconduct by the State or counties.

§328-J Preemption. This part shall preempt county and other political jurisdictions or administrative rules prohibiting and regulating the production and sale of homemade food products unless authorized by this part."

SECTION 3. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 4. In codifying the new sections added by section 2 of this Act, the revisor of statutes shall substitute appropriate section numbers for the letters used in designating the new sections in this Act.

SECTION 5. This Act shall take effect on July 1, 2024.

THE SENATE	S.B. NO.	2106
THIRTY-SECOND LEGISLATURE, 2024		S.D. 1
STATE OF HAWAII