Food Safety Laws and Regulations Related to Home-Based Food Businesses: Perceptions of Regulatory Staff, Food Processors, and the Home-Based Food Industry in New York State
Roxanne Hill
Supervising Food Inspector
New York State Department of Agriculture and Markets
International Food Protection Training Institute (IFPTI)
2011 Fellow in Applied Science, Law, and Policy: Fellowship in Food Protection
Abstract
The primary goal of this project was to determine if sufficient regulation exists concerning enforcement of food safety laws with home-based food processors. New York State Department of Agriculture and Markets offices field a number of calls each week from individuals interested in developing a home-based business preparing foods for sale to the general public. Home-based food processors are exempt from the licensing provisions of the Agriculture & Markets Law, Article 20-C (see A&ML section 251-z-4, 1NYCRR section 276.4[b]) and are not subject to inspection by any of the health departments. A review of literature and online videos indicated that information regarding home-based food processor licensing is varied and unreliable. The review also revealed variances between states regarding legal requirements for home-based food processors. New York state regulators, commercial food manufacturers, and home-based food processors were surveyed using the Internet, telephone, and mailings. Survey results suggested that both regulators and manufacturers are concerned about the lack of training for and routine inspection of home-based food processors.
Introduction
New York state laws require commercial food manufacturers to be licensed and routinely inspected. On the other hand, NYS 281, Declaration of Legislative Findings and Intent, encourages farms and food product producers within the state to sell directly to consumers on a state, regional, or local basis at wholesale and retail. The home-based food processor exemption policy thus allowed an extension of the business for farmers, which helped the farmers use excess crops. New York State Department of Agriculture and Markets (NYSDAM) Circular 933, Rules and Regulations Relating to Human Foods: Current Good Manufacturing Practices (GMPs), is for firms that are not regulated by licensing, such as home food processors. The policy of NYSDAM is to perform a one-time, announced, curtailed inspection of each home kitchen shortly before the firm is registered and to follow up only when a complaint is received.
In 1993, there were 490 registered home-based food processors in the state of New York. By 2011, that number grew to 2,039, and as of February 2012, there were 2,100 registered home-based food processors (Archived and Active NYSDAM records). Although there is no record of foodborne illness outbreaks associated with home-based food processors in New York state, food sources for home-based food processors are not routinely monitored to ensure the delivery of wholesome products. Consequently, the potential exists for distribution of contaminated foods to the public in New York.
Further, concern over food security has grown tremendously in recent years, as evidenced by new federal laws addressing the issue. The FDA Food Safety Modernization Act (FSMA) was signed into law by President Obama on January 4, 2011. The Act aims to ensure that the U.S. food supply is safe by shifting the focus of federal regulators from responding to contamination to preventing contamination. “We know that we need to prevent and to use our modern understanding of where hazards come from and how they can be minimized to reduce the risk of illness,” said Michael R. Taylor, Deputy Commissioner for Foods, U.S. Food and Drug Administration (2012, Bottemiller).
The current compliance enforcement methods for commercial businesses include inspections, re-inspections, fines and penalties, industry conferences, and food safety education classes and seminars. NYSDAM also utilizes seizure authority, administrative hearings, preliminary injunctions by court order, orders of contempt, arrest warrants, temporary restraining orders, summary suspensions, inspection warrants, and warning letters for enforcement against commercial businesses. These authorities are not fully used for enforcement purposes with home-based food processors. Products from an unregistered home-based food processor are classified as coming from an unapproved source. Potentially hazardous products made by a home-based food processor are considered violative. Both types of products are seized and destroyed under signed waiver where found. The other enforcement actions are not used with home-based food processors.
Background
Unregistered home-based food processors usually become known after they have been reported, they are seen on TV, a website is stumbled upon, or homemade food products are found in a store during an inspection or investigation. Occasionally, a home-based food processor (or potential processor) will call NYSDAM because the person learned about NYSDAM from the Internet, from a cooperative extension, or from farmers’ market management, or because “someone” told the person to call. Due to the current state of the economy and the perception that homemade food products are fresher, safer, or more nutritious, interest in preparing foods at home for sale to the public has grown tremendously (2011, Haupt). The Brooklyn regional NYSDAM office fielded 30 calls during one week in 2011. During initial conversations with inspectors, many unregistered home-based food processors say they plan to produce cakes, cookies, or other non-potentially hazardous foods. However, in subsequent conversations, some home-based food processors admit to making products not permitted by New York state law, such as fermented red yeast rice, meat dishes, dips and sauces, layer/filled cakes, wedding cakes, banana breads, zucchini breads, and tarts. Some home-based food processors sell only to stores, while others sell directly to the public at flea markets and farmers markets. A new NYSDAM home-based food processors policy allows use of the Internet for communication or promotional purposes.
Problem Statement
In the state of New York, food safety laws and regulations require training for all commercial food preparers. These New York state laws and regulations do not require routine inspections for people processing food from a home kitchen. The lack of routine inspections for home-based food processors could lead to habitual deviations from GMPs and allow the continued presence of unrecognized food safety hazards.
Research Question
What are the perceptions regarding food safety laws for home-based food businesses among various stakeholders, specifically regulatory staff, licensed manufacturers, and home-based food processors?
Methodology
A mixed-method approach, in the form of quantitative and qualitative analyses of data obtained from surveys of commercial food manufacturers, home-based food processors, and New York state regulators, was used. The Brooklyn regional NYSDAM office staff used a phone questionnaire to survey non-registered home-based food processors as they called in. The callers were asked questions about food safety training, types of products, sales venue, and advertising. Surveys that included the same set of questions were mailed to the current list of registered home-based food processors from NSYDAM’s intranet database.
The NYSDAM regulators’ survey was administered by SurveyMonkey. Regulators were asked questions relating to the safety of homemade foods, minimum food safety requirements for home-based food processors, adequacy of current enforcement, and limiting of sales venues. Mail surveys were sent to commercial food manufacturers found in NYSDAM’s database. Manufacturers were asked about their knowledge of home food processing, safety of home-processed foods, training, education, and routine inspections.
To conduct a more focused and manageable study, the survey population was limited to Region 3 of NYSDAM. The survey responses from manufactures and regulators were compared for similarities.
Results
The majority of manufacturers and regulators who participated in the surveys believe that home-processed foods are unsafe. Foods considered to be unsafe are meat, poultry, seafood, dairy products, pickled products, and canned goods. Responses to questions about minimum food safety requirements for home-based food processors were tallied by the number of mentions and grouped into the following categories: Training, Inspections, Good Manufacturing Practices/Sanitation Standard Operating Procedures (GMPs/SSOPs), and Other. GMPs/SSOPs responses included being insect- and vermin-free, having clean kitchens, and practicing good hygiene. The following is one of the responses in the “Other” category: “Homemade foods should be sold locally for easy trace back; limit to small venues where enforcement could be easier.”
The following chart (Figure 1) shows that manufacturers and inspectors believe training should be mandatory.
Inspectors believe home-based food processors should be restricted to producing small batches of food; allowed only limited distribution, subjected to random product sampling, and required to keep household ingredients separate from processing ingredients.
Manufacturers and inspectors also agree that home-based food processors should be subject to routine inspection (Figure 2).
Conclusions
Some form of training should be required for home-based food processors in order to educate them about safe food handling practices, food-related hygiene/health concerns, approved food sources, etc. Routine inspections should be conducted in home kitchens to verify continued good manufacturing practices. Manufacturers and inspectors are in favor of training and routine inspections being required for home-based food processors. Potentially hazardous foods should remain restricted. Regulators and manufacturers agree that potentially hazardous foods, such as meats, seafood, salads, and dairy products, should not be home-processed.
Recommendations
The survey results suggest that the NYSDAM’s home-based food processor policy should be modified to require routine inspections for home-based food processors and mandatory training before a home-based food processor can begin making products to sell to the public. In addition, the policy should be amended to require home-based food processor product labels to indicate that a food is home-processed.
Acknowledgments
Being granted the Fellowship at IFPTI was a tremendous honor and privilege. I could not have met the challenge and completed the project without the assistance of several people. Much thanks to my mentor, Dan Sowards, for his guidance and insights. I would also like to thank Joseph Corby for his support, Dr. Kieran Fogarty for his evaluations and comments, and all the IFPTI instructors for their subject matter expertise. I am grateful to Richard Olson, Chief Region 3; Erin Sawyer, Field Director; John Luker, Assistant Director; and Stephen Stich, Director, Food Safety and Inspection Services of NYSDAM for allowing me to participate in the Fellowship. My sincere appreciation is extended to the regulators, manufacturers, and home-based food processors who participated in the surveys that generated results for the project.
Corresponding Author
Roxanne Hill, New York State Department of Agriculture & Markets
Email: Roxanne.Hill@agriculture.ny.gov
References
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