Food and food safety were on the dockets of many state legislatures in 2021
Editor’s Note: The following article was first published this past Wednesday by the National Environmental Health Association (NEHA) under the headline: “2021 State Enacted Legislation: Food June 2021.” The author is Doug Farquhar, JD, who is NEHA’s new director of its Government Affairs department.
Until late 2020, Farquhar was the long-time director of the Environmental Health Program at the National Conference of State Legislatures. At NCSL, Farquhar helped developed tools that improved the non-partisan policy shop’s ability to track state legislative actions in real-time.
He was generous in sharing that work with Food Safety News when he was at NCLS and we are pleased to report he continues to be helpful to us at NEHA.
Just a word on the timing. Most state legislatures have adjourned for the year. There are a handful of exceptions. California and Pennsylvania go year-round. And an occasional special session, usually on budget issues, remains possible in other states.
But with state legislature mostly shut down for the year, Doug Farquhar’s latest analysis of what the “Laboratories of Democracy” did when it came to food and food safety, could not be more timely.
By Doug Farquhar, JD
State legislatures introduced several hundred bills related to food during the 2021 legislative sessions. Almost every state introduced legislation regarding food—including food delivery, cannabis, COVID-19, and food freedom —a nd state legislatures heard about proposed policy changes to food laws.
NEHA tracked 382 bills in 36 states with 58 bills being enacted in 25 states. Several states remain in session and additional bills could be enacted before the end of the session (aka sine die). A majority of the states, however, have ended their sessions for 2021.
The main issues NEHA tracked were cannabis in food, COVID-19 and food, cottage foods and food freedom, food deserts, food delivery, meats, micro-markets, raw milk, and the Supplemental Nutrition Assistance Program (SNAP).
Cannabis in Food
Three bills have been enacted on cannabis in foods in 2021. Kentucky HB 325 (2021) establishes labeling requirements for cannabidiol products.
Nevada enacted SB 114 (2021) that authorizes food that contains hemp to be sold or produced at certain food establishments under certain circumstances. The law requires the Nevada Department of Health and Human Services to adopt regulations related to food that contains hemp and prohibits food from being deemed as adulterated solely because such food contains hemp.
In Virginia, HB 1430 and SB 918 (2021) create the Industrial Hemp Fund that declares industrial hemp extract as food and subjects it to statutory requirements. These bills also establish standards for the manufacturing of industrial hemp extract and industrial hemp is approved as a food additive.
COVID-19 and Food
Four bills in three states address COVID-19 and foods: New Jersey AB 3865 and SB 2347, Ohio SB 108, and Wyoming, HB 51.
New Jersey AB 3865 (2021) bars grocery stores from accepting returns during the COVID-19 pandemic and for 30 days after a state of emergency. Grocery stores can accept returns due to manufacturer defects but cannot resell them. SB 2347 (2021) would allow small businesses to defer the payment and remittance of employment and business-related taxes.
Ohio SB 108 (2021) will provide $125 million in grants to bars, restaurants, and the lodging industry to recover from the COVID-19 pandemic.
In Wyoming, HB 51 (2021) expands and enhances meat processing by creating a grant program to facilities suffering during the COVID-19 pandemic.
Cottage Foods and Food Freedom
Eight states — Alabama, Arkansas, Indiana, Montana, New Mexico, Oklahoma, Texas, Utah, and Wyoming — enacted 12 bills of legislation regarding Cottage Foods or Food Freedom.
Alabama enacted SB 160 (2021), Cottage Food Production Operations, that amends the current cottage food law to allow for online sales of unregulated food products, removes the gross receipt sales cap, and requires nutritional information on food labels.
Arkansas SB 248 replaces its cottage food law with the Food Freedom Act that exempts certain producers of homemade foods or drinks products from any state food safety licensure, certification, or inspection. Arkansas HB 1118 (2021) permits the sale of cottage foods over the internet.
Indiana SB 185 (2021) requires that the state Department of Health, State Board of Animal Health, and state Department of Agriculture shall, in consultation with industry groups and food safety experts, submit recommendations concerning home-based vendors to the general assembly.
Montana enacted the Montana Local Food Choice Act (SB 199, Sess. 2021) that exempts homemade food producers from licensing, permitting, certification, packaging, labeling, and inspection regulations, as well as other standards and requirements.
The New Mexico legislature enacted the Homemade Food Act (HB 177, Sess. 2021), exempting non-potentially hazardous homemade food items from regulation pursuant to the food service sanitation act or the state food act. The law also preempts local rules on food safety requirements, including the Albuquerque food safety ordinance.
Oklahoma’s HB 1032 (2021) exempts homemade food products (i.e., food that is produced and packaged at a home residence) from licensing and all other requirements of the state Department of Health or the state Department of Agriculture, Food, and Forestry.
The Oklahoma legislature also enacted HB 1772 (2021) that provides exemptions from the food establishment license required by the commissioner of health for several retail food producers including produce stands; kitchens in a private home that prepare food for sale at a nonprofit civic, charitable, or religious organization bake sale; a private home that receives catered or home-delivered food; a kitchen in a private home or in a bed and breakfast that prepares and offers food to guests; daycare centers or family daycare centers; nursing facilities and specialized facilities; and residential care homes, adult daycare centers, assisted-living centers, and continuum of care facilities.
Texas HB 1276 (2021) allows specified food establishments to sell directly to the consumer. SB 617 (2021) clarifies previous legislation to allow food producers to sell directly to consumers at farmer’s markets.
Utah became the second state after California to adopt legislation that allows for microenterprise home kitchen operations. HB 94 (2021) allows home cooks to prepare meals from their homes and sell to consumers without being a licensed kitchen.
In Wyoming, the legislature extended its already expansive food freedom law to include the sale of eggs and allow the sale of homemade foods (HB 118, Sess. 2021).
Food deserts are being recognized in legislatures. The legislatures in Maryland, New York, and Utah all enacted legislation regarding food deserts or food insecurity.
In Maryland, the legislature established the Maryland Food System Resiliency Council to address the food insecurity crisis due to the COVID-19 pandemic; develop recommendations to increase the long-term resiliency of the food system; and develop by November 1, 2021, a plan to increase the production and procurement of Maryland certified food (HB 831, SB 723; Sess. 2021).
The New York legislature is directing the Commissioner of Agriculture and Markets to produce a report on the state’s farm and food supply regarding ways to improve resiliency in food supply chain logistics to address food shortages, food wastes, and the inability to get state-grown food goods to market as a result of the COVID-19 pandemic (AB 952, SB 1305; Sess. 2021).
New York AB 963 and SB 901 (2021) allow supermarkets to provide excess edible food to food relief organizations. NY AB 1262 and SB 878 (2021) relate to working with the U.S. Department of Agriculture to develop an online fresh food purchasing option throughout the state.
Utah SB 141(2021) creates the Task Force on Food Security to ensure the public has access to sufficient, affordable, safe, and nutritious food that meets food preferences and dietary needs.
Third-party food delivery was a new issue for state legislatures in 2021.
Arkansas enacted HB 1426 (2021) that establishes the Arkansas Fair Food Delivery Act. Food delivery must have an agreement with a food facility to take food orders and deliver food orders prepared by the food facility to customers
Colorado SB 21-035 (2021) prohibits a third-party food delivery service from offering or taking and arranging for the sale or the same-day delivery or same-day pickup of prepared food or beverages from a retail food establishment without a written agreement with the retail food establishment’s consent.
The Texas legislature also addressed food delivery in SB 911 (2021) by specifying requirements of third-party delivery services that deliver foods from restaurants.
Policies on meat were enacted in seven states. Unlike in recent sessions, however, the issue of cell-based meat (or imitation or artificial meats) was not popular. Bills related to the sale of meat directly from the producer to the consumer were popular, with bills in Colorado, Nebraska, and Wyoming becoming law.
Arkansas HB 1315 (2021) transfers the authority of meat inspections over to the state Department of Agriculture.
Colorado SB 21-079 (2021) deregulates direct to consumer meat sales and allows a person to sell, without licensure, certain animals or animal shares to informed end consumers without regulation or inspection by any public health agency. The scant role for the state, pretty much limited to the State Board of Stock Inspection, does not mean the needed share agreements will not take time and expertise. Cattle, calves, sheep, elk, bison, goats, hogs, and rabbits are among the animals for which shares can be sold under the new law. The informed end consumer (i.e., the last person to purchase meat by the share without being involved in the resell of the product) is not regulated or inspected.
Maine’s LD 66 prohibits the sale of horsemeat. The law limits the sale of horsemeat to “cattle, sheep, swine, goats, or an exotic species defined by the federal act, not deer, rabbits, or equines” (HB 66, Sess. 2021). LD 77 authorizes the Maine Department of Marine Resources to charge an application fee for entering a lottery for a scallop license (HB 77, Sess. 2021).
In Montana, HB 336 provides for commerce between states for state-inspected meat, provided that inspections must at least equal federal laws and regulations.
Nebraska amended its Meat and Poultry Inspection law. LB 324 (2021) would allow the acquisition of meat through an animal share contract—an ownership interest in an animal or herd of animals created by a written contract between a consumer and a farmer or rancher. The meat sold must be inspected by the U.S. Department of Agriculture. The law would allow, however, a producer to sell packages of meat to consumers under a custom exemption in federal law.
Virginia HB 1353 and SB 791 (2021) update existing code references to the Federal Meat Inspection Act and the federal Poultry Products Inspection Act. HB 1448 (2021) requires the state Marine Resources Commission to adopt regulations necessary to manage Atlantic menhaden, including those necessary to comply with the Atlantic States Marine Fisheries Commission Interstate Fishery Management Plan for Atlantic Menhaden.
The Wyoming legislature enacted HB 54 (2021) that amends the duties of the business council to require support for Wyoming producers in the agriculture and meat processing industry, expands permissible loans and grants to Wyoming meat producers and processors, and limits state rulemaking authority related to meat processing. The bill prohibits the Department of Agriculture or the Environmental Council from imposing standards or requirements related to meat processing more stringent than federal law.
One state enacted legislation on micro markets. Indiana SB 20 (2021) regulates micro-market food sales; provides that an owner or operator of a micro-market shall not be required to 1) submit any documentation or 2) be subject to any preplan review, inspection process, or approval process by the state department, corporation, or local health department before the installation of a micro-market; and provides that an owner or operator of a micro-market must notify the corporation or local health department where the micro-market is located no later than 10 business days after the installation of the micro-market.
Supplement Nutrition Assistance Program (SNAP)
Two states enacted legislation relating to SNAP: Maryland’s SB 913 (2021) and New Jersey’s AB 4240 (2021).
Maryland SB 913 (2021) establishes the Heat and Eat Program within SNAP in the Department of Human Services for the purpose of expanding food access to households that are receiving or are eligible for SNAP program benefits.
New Jersey’s AB 4240 (2021) provides for technological upgrades of the application process for SNAP.
Miscellaneous Food Safety Bills
New Hampshire HB 345 (2021) establishes a license for mushroom harvesters.
Vermont HB 218 (2021) relates to the sale of raw milk and allows for the direct sale of unpasteurized milk from the producer to the consumer for personal consumption. Farmstand sales of raw milk are permitted; however, the producer must inform the state of where sales take place.
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