Texas Gov. Greg Abbott signed two bills last week that make it easier for both kids and adults to open and run their own businesses selling homemade food. First, with a tall glass of lemonade in hand, the governor signed legislation that bans cities and counties from banning kids’ lemonade stands, calling the measure “a common-sense law.” The bill (HB 234) also prevents municipalities and homeowners’ associations from requiring any permits or fees for kid-run businesses, so long as they’re “occasional” and held on private property or in a public park.
Despite the state’s reputation for limited government, a law guaranteeing lemonade laissez-faire was actually necessary. Back in 2015, two girls saw their lemonade stand shut down by police in Overton, Texas because they didn’t have a $150 “peddler’s permit.” But thanks to HB 234, Texas is now the third state that legalized lemonade stands for kids, following similar measures in Utah and Colorado.
Second, Gov. Abbott approved a bill (SB 572) that expands the state’s cottage food law and lets home bakers sell any homemade food that is “time and temperature control for safety.” Prior to SB 572, Texas limited residents to shelf-stable food they made at home, like cakes, candy, cereal, cookies, dried herbs, jams, jellies, popcorn, and vinegar. No permits or licenses are necessary to start a cottage-food business, though entrepreneurs are required to stay within a sales cap of $50,000 in annual gross income and complete a food handler course on food safety. Since 2015, the Texas Department of State Health Services hasn’t received a single complaint of foodborne illness from a cottage food producer.
Although the Texas cottage food law was better than most state laws, the Lone Star State still suffered from some baffling restrictions. Take pickling. Previously, under the state regulatory code, the Department defined a pickle as “a cucumber preserved in vinegar, brine, or similar solution, and excluding all other pickled vegetables.” In other words, selling any other home-pickled vegetable, like beets, carrots, cauliflower, jalapenos, or red onions, to name a few, was forbidden under the cottage food law. This ridiculously narrow definition needlessly prevented Texans from becoming home-based entrepreneurs.
Anita and Jim McHaney learned this first-hand. A retired couple who own a 10-acre farm in Robertson County, the McHaneys grew and sold fresh produce at local farmers’ markets as a way to supplement their income. In order to prevent their unsold produce from ending up as feed for their neighbor’s cows, the McHaneys planned on pickling their grown vegetables, which would lengthen their shelf life and help the couple break even. While the McHaneys were able to grow beets and okra, their land wasn’t conducive to growing cucumbers. As a result, complying with the regulation meant it was no longer financially feasible to keep selling their produce, which forced the McHaneys to stop farming.
Soured by an administrative state, the couple was determined to get out of this regulatory pickle. The McHaneys reached out to the Institute for Justice, which connected them with attorneys who took their case pro bono. Last year, they sued the state, claiming that the Department’s rule infringed on their right to “earn an honest living in the occupation of their choice, free from unreasonable governmental interference.”
Prompted by their lawsuit, Sen. Lois Kolkhorst and Rep. Eddie Rodriguez sponsored SB 572, which widens the state’s definition of pickles to include any “pickled fruit or vegetable.” (Presumably, this wouldn’t include nihilistic, alcoholic scientists.) Both the home pickling and lemonade stand bills will take effect on September 1.
“We enforced the law as written previously and will continue to do so after changes take effect,” said Chris Van Deusen, a spokesman for the Department.
The McHaneys, on the other hand, were “delighted” about the bill, telling the Texas Tribune (which broke the story about their lawsuit) that the new law will bolster “economic liberty and food freedom for many Texas families.”
But SB 572 goes much further than ending one of the nation’s silliest regulations. To increase distribution channels, SB 572 will finally let cottage food businesses sell online to in-state buyers, take mail orders, and sell directly to consumers anywhere in the state. (Selling through retail outlets, like grocery stores, will remain off-limits for cottage food producers, unlike in 17 states.)
Moreover, under the new law, cottage food businesses can sell acidified canned goods (including salsa), fermented vegetables, and frozen fruit and vegetables. Producers seeking to sell canned, fermented, or pickled food must either use recipes approved by the Department or personally test their goods to make sure that they have a pH level of 4.6 or less.
With this reform, Texas now joins 16 other states that have created or expanded their cottage food laws since 2015.
