Selling farm food products right on the farm is convenient and protected under the Right to Farm Act. Last month we discussed how the Right to Farm Act protects on-farm markets so make sure to check that out. Additionally, this blog post does not cover Food Safety Modernization Act (FSMA) requirements or exemptions (that may be a future blog post) however farmers should familiarize themselves with if their farm sales have to comply with the produce or processing rules. And while we aren't touching FSMA today, there are other Federal, State, and sometimes Local food safety laws and regulations that apply to on farm sales. So this month, we will focus on several of these to help you learn how to make your food compliant for sale directly on the farm. We only touch on some of these issues so it is important to read the links and talk to us, another attorney, or USDA/PA food safety professional to ensure that you are complying with all requirements for your specific farm and to be farmiliar with all applicable laws and regulations.
Before you start selling food on your farm, you must consider your property’s location. The Pennsylvania Department of Agriculture typically regulates food production and facilities in the state. But, in six counties (Allegheny, Bucks, Chester, Erie, Montgomery, and Philadelphia) the county health department has the authority to regulate food production and facilities. These six counties can regulate more restrictively than the state regulations. You can read more about the different regulations in our March blog.
Additionally, you should consider what type of food you will sell at your farm market. To open a market directly on your farm you must apply for a Retail Food Facility License. However, you do not need to obtain a license if you are only selling prepackaged non-potentially hazardous foods (such as baked goods, jams, canned pickled food products, apple cider, honey products, ect.), or raw agricultural produce and commodities.
If you prepare or process food to sell at your farm market (cheese, items that must be refridgerated, some baked goods, etc.) you may need to produce your items in a shared commercial kitchen or register with the state as a commercial food establishment or a limited food establishment. Our blog from May details more information about these registrations. If you choose to carry out the processing and/or production of food on your farm, the preparation establishment doesn't need to specifically be in the farm stand or store, but anywhere on your property so long as it can meet the requirements. You can also always use a co-packer or bring in third-party processed foods to avoid having to comply with these requirements.
Meat processing in Pennsylvania is regulated by the USDA, the Pennsylvania Meat and Poultry Hygiene law and the Pennsylvania Food Code. Generally, the slaughter and butchering/processing of meat must occur in a USDA inspected facility, except if you are butchering for your own consumption and not for sale (so thus if you are selling at a farm market, you have to have the meat processed at a USDA facility). There is an exemption for certain sales of poultry, however. Farmers selling poultry directly on the farm, may butcher and process the poultry without an inspected facility. This exemption applies to a producer-grower who slaughters and sells the poultry they themselves have raised (1,000 bird limit, or 20,000 limit as long as only distributed intrastate). However, it is highly recommended that the farmers talk to a FSIS (USDA Food Safety Inspection Service) professional to determine and/or confirm if they truly qualify for exemption.
The USDA also regulates the labeling of meat products. For meat processed by a USDA inspected faiclity, the facility will often be familiar with the labeling requirements and work with you to determine the appropriate label for your meat. An overview of these requirements can be found: here . Farmers should also note that they need prior approval from the USDA before putting any specific claims on their label such as "organic" or "grass-fed."
Additionally, all meat for sale should be stored at a temperature of 41° F ( 5° C) or below.
If you’re in PA and keep fewer than 3000 hens and sell your eggs in state and within 100 miles of your hens’ location, you’re exempt from mandatory inspections by both the FDA and the PDA (Pennsylvania draws the line at 3200 hens, the FDA at 3000). Make sure to inspect your eggs before packaging them, and remove any eggs you think could be diseased, damaged, broken, or dirty. Eggs must also be sold within 5 days from the date of lay. All eggs must be maintained at 45°F or less from the time of gathering to the time of sale.
Eggs must also be labeled with:
- the name and address of the packer or distributor;
- the date of lay;
- the net contents;
- the official USDA inspection mark and establishment number;
- “Keep Refrigerated”
- Other specificities such as grade, or lack of a grade
Check out the PDA's site on eggs for more information: here.
Generally, milk is required to be pasteurized and Grade A. Raw unpasteurized milk and cheese may be sold only with a permit. More information about selling and producing products from raw milk can be found here.
The following labeling requirements apply to milk as well:
The cap or nonglass container of pasteurized milk held in retail food stores, restaurants, schools or similar food facilities for resale shall be conspicuously and legibly marked in a contrasting color with the designation of the ‘‘sell-by’’ date—the month and day of the month after which the product may not be sold or offered for sale. “
The words ‘‘Sell by’’ or ‘‘Not to be sold after’’ must precede the designation of the date, or the statement ‘‘Not to be sold after the date stamped above’’ must appear legibly on the container. This designation of the date may not exceed 17 days beginning after midnight on the day on which the milk was pasteurized.The sell-by date shall be separate and distinct from any other number, letter or intervening material on the cap or nonglass container.
Pasteurized milk may not be sold or offered for sale if the milk is sold or offered for sale after the sell-by date designated on the container. Certain products are exempt from the requirements on milk, which are: Ultra pasteurized dairy products; Cultured dairy products; Aseptically processed dairy products; Dairy products that have undergone higher heat shorter time pasteurization; Milk sold or offered for retail sale on the same premises at which it was processed.
Plants that are cooked and held hot must be cooked to a temperature of 135°F (57°C) .
Even if you are handling your food safely, you will still need to label your food correctly. Unpackaged foods and raw foods generally do not need to be labeled unless required by a locality. Packaged foods must meet state and federal labeling requirements, unless they fall under an exemption. Penn State Extension has put together a great food labeling guide, which can be found: here.
We hope this blog has been helpful in providing some of the important considerations for selling food at a farm stand or market. Remember, if you're just selling fresh produce, unless FSMA is applicable to you, you don't have to worry about too many of these requirements. Also, the national agricultural law center has put together a great, much more comprehensive, Pennsylvania direct sales guide, that provides further and additional details and considerations for selling on your farm (we kept this pretty short otherwise this would be the world's longest blog post) so we highly recommend checking that out as well. It can be found: here.
This is not an exhaustive guide and should not be considered legal advice, but rather it generally touches on major areas of food processing for public sale. If you have any further questions, please reach out to us or a USDA or PDA official.