SENATE 3rd Reading Unamended May 5, 2011 SENATE Amended 2nd Reading May 4, 2011First Regular Session Sixty-eighth General Assembly STATE OF COLORADO REENGROSSED This Version Includes All Amendments Adopted in the House of Introduction LLS NO. 11-0261.03 Kate Meyer SENATE BILL 11-258 SENATE SPONSORSHIP Schwartz, HOUSE SPONSORSHIP Vigil and Coram, Senate Committees House Committees Agriculture, Natural Resources, and Energy Appropriations A BILL FOR AN ACT Concerning locally produced foods, and, in connection therewith, authorizing the department of public health and environment and local boards of health to create registries of growers who produce food products in their home kitchens, promoting local foods, and increasing economic opportunities for local food producers. Bill Summary (Note: This summary applies to this bill as introduced and does not reflect any amendments that may be subsequently adopted. If this bill passes third reading in the house of introduction, a bill summary that applies to the reengrossed version of this bill will be available at http://www.leg.state.co.us/billsummaries.) The bill increases consumer access to local fresh and value-added agricultural products. Sections 2, 3, and 4 of the bill allow a grower to use his or her private home kitchen for the production of low-risk food to be sold at retail if: The grower registers with a registry created and maintained by the grower's district, county, or regional board of health; The food produced in the kitchen is a baked or dehydrated food or is an acid food product; The food incorporates a key or principal agronomic ingredient that was grown by the person; Net revenues from each eligible food product made in the home kitchen do not exceed $5,000 in a calendar year; and The food is sold directly to ultimate consumers and only at the grower's residence or roadside stand, a farmers' market, a community-supported agricultural organization, or similar venue. Section 4 further identifies prerequisites and procedures for registration, including training in food handling safety and mandatory label components of foods produced in home kitchens. Section 5 allows the Colorado food systems advisory council to consider the feasibility of developing a subclassification of the "Colorado Proud" marketing program specifically devoted to stimulating purchases of fresh, locally sourced fruits and vegetables. Section 6 adds promoting farmers' markets to the list of powers, functions, and duties of the Colorado department of agriculture. Section 7 allows small egg producers to sell their eggs on the producers' premises or at local farmers' markets and applies the laws and rules regarding safe transport, including refrigeration and washing requirements, to such eggs. Section 8 directs the Colorado department of transportation to promulgate rules regarding the safe placement of signs advertising farmers' markets and roadside stands. Be it enacted by the General Assembly of the State of Colorado: SECTION 1. Legislative declaration. (1) The general assembly hereby finds and declares that facilitating greater access to markets and consumers for small, local producers of fresh and value-added foods will foster direct connections between people and local producers, which connections will: (a) Support economic development and agritourism in Colorado communities by generating entrepreneurial opportunities, encouraging direct-to-consumer sales of locally grown foods, and creating new jobs; (b) Invigorate local food systems by easing impediments to local markets; and (c) Increase the self-reliance of Colorado communities. (2) The general assembly further finds and declares that: (a) Exempting from retail food establishment licensure requirements, authorizing the department of public health and environment and county, district, or regional boards of health to register home kitchens, and encouraging those boards of health to work with the local agricultural community to establish local food production programs will support both local farmers and small-scale producers; (b) Growers with locally registered home kitchens will have sufficient incentives to be accountable to consumers and provide safe, wholesome foods; (c) At least eighteen states in which agriculture is important have enacted "cottage food laws" that allow growers to produce nonhazardous food in their home kitchens and sell that food to consumers; and (d) Making fresh, locally produced foods more easily available to all consumers will improve the healthy eating habits of all Coloradans. (3) The general assembly also encourages entities that regulate, affect, or are interested in local food production and related matters to examine ways in which to revise zoning ordinances, building and health codes, and other legal barriers to accommodate and encourage the growing and use of local produce and the production of value-added foods that use local produce. Such entities are also urged to initiate, support, and set goals for farm-to-school program efforts, including programs in which schools and other public entities generate and make use of on-site produce and that incorporate into a farm-to-school curriculum knowledge and consumption of locally sourced and distributed foods, including those grown in geothermally heated and other greenhouses. SECTION 2. 25-4-1602 (14), Colorado Revised Statutes, is amended BY THE ADDITION OF A NEW PARAGRAPH to read: 25-4-1602. Definitions. As used in this part 16, unless the context otherwise requires: (14) "Retail food establishment" means a retail operation that stores, prepares, or packages food for human consumption or serves or otherwise provides food for human consumption to consumers directly or indirectly through a delivery service, whether such food is consumed on or off the premises or whether there is a charge for such food. "Retail food establishment" does not mean: (m) A home kitchen in which a grower registered under section 25-4-1614 produces food products sold directly to consumers in accordance with that section. SECTION 3. 25-4-1603, Colorado Revised Statutes, is amended to read: 25-4-1603. Licensing, certification, and food protection agency. (1) The department is hereby designated the state licensing, certification, and food protection agency for the purpose of protecting the public health and ensuring a safe food supply in this state. In addition to such designation, The department is hereby also authorized to regulate and control retail food establishments, promulgate rules governing the operation of such establishments, and uniformly enforce and administer this part 16. (2) Nothing in subsection (1) of this section affects or impairs the ability of a county, district, or regional board of health to create a registry of growers who sell food products produced in the growers' home kitchens in accordance with section 25-4-1614. SECTION 4. Part 16 of article 4 of title 25, Colorado Revised Statutes, is amended BY THE ADDITION OF A NEW SECTION to read: 25-4-1614. Home kitchens - exemption - registration - registries - report - rules - short title - definitions. (1) This section shall be known and may be cited as the "Colorado Cottage Foods Act". (2) Notwithstanding any provision of law to the contrary, a county, district, or regional board of health that is authorized to enforce this part 16 and rules adopted under this part 16 may create a registry of growers registered pursuant to this section who sell, directly to consumers, food produced in the grower's private home kitchen that is located within the board's jurisdiction. The department is also authorized to create a registry to register growers in the state who use their home kitchens to prepare food for sale directly to consumers. (3) (a) A grower may use his or her home kitchen to produce foods for sale only if the grower sells the foods directly to ultimate consumers and registers with the department or a county, district, or regional board of health in accordance with this section. (b) A registrant is permitted under this section to sell only nonpotentially hazardous home kitchen-prepared foods that do not require refrigeration, including spices, dehydrated produce, honey, jams, jellies, preserves, fruit butter, and baked goods. (c) A registrant must have grown the principal agronomic ingredient of any food sold under this section, or, for baked goods, the registrant must have grown a key agronomic ingredient of the baked food sold under this section. (d) The foods produced under this section must be sold only: (I) Directly to ultimate consumers; and (II) On the registrant's premises, at the registrant's roadside stand, or at a farmers' market, community-supported agriculture organization, or similar venue. (e) Only a grower who earns net revenues of five thousand dollars or less per calendar year from sales of each food product produced in the grower's home kitchen is eligible for registration under this section. (f) To be registered pursuant to this section, a grower must be certified in safe food handling by a third-party certifying entity, including the United Stated department of agriculture or the Colorado state university cooperative extension service, and maintain a status of good standing in accordance with the certifying entity's practices and procedures, including attending any classes required for certification. (4) In order to register to sell foods under this section, a grower must submit the following to the department or to the county, district, or regional board of health in which the grower's home kitchen is located: (a) A registration fee in an amount determined by the department or the county, district, or regional board of health to be sufficient to recover the actual and direct costs of administering this section, including the expenses of creating and maintaining a registry of registrants located in the state or, for a county, district, or regional board of health registry, within that board's jurisdiction; (b) An affidavit stating that the grower will comply with paragraph (e) of subsection (3) of this section; (c) A sample of the label that the grower intends to use and that conforms to subsection (5) of this section; and (d) Proof of certification in safe food handling pursuant to paragraph (f) of subsection (3) of this section. (5) (a) No food product shall be sold under this section unless it has an affixed label that includes at least the following information: (I) Identification of the product; (II) The registrant's name, the address at which the food was prepared, and the registrant's current telephone number; (III) The date on which the food was produced; (IV) The complete list of ingredients; and (V) The following disclaimer: "This product was produced in a home kitchen that is not subject to state licensure or inspection and that may also process common food allergens such as tree nuts, peanuts, eggs, soy, wheat, milk, fish, and crustacean shellfish. This product is not intended for resale." (b) A food product sold under this section and not labeled in accordance with paragraph (a) of this subsection (5) is misbranded and is subject to food sampling and inspection pursuant to subsection (7) of this section. (6) (a) (I) The department or a county, district, or regional board of health may promulgate rules as necessary to administer this section. (II) The department or a county, district, or regional board of health may adopt policies or promulgate rules regarding receipt and retention of documentation required under this section or required by rules promulgated pursuant to this paragraph (a). The policies or rules should establish methods to identify and investigate allegations of food-borne illnesses contracted from foods sold under this section. However, nothing in this section requires the department or a county, district, or regional board of health to verify the accuracy or legitimacy of documentation submitted by a registrant or person seeking registration under this section. (b) The department shall deposit any fee collected under paragraph (a) of subsection (4) of this section in the food protection cash fund created in section 25-4-1608. The county, district, or regional board of health shall deposit the fee collected under paragraph (a) of subsection (4) of this section in the appropriate county, district, or regional public health agency fund in accordance with section 25-1-511. (7) (a) A food product produced pursuant to this section is subject to food sampling and inspection if it is determined that the food product is misbranded pursuant to subsection (5) of this section or if a consumer complaint has been received. (b) If the department or a county, district, or regional board of health has reason to believe that an imminent health hazard exists, it may suspend a registration under this section until it deems that the hazardous situation has been addressed to the satisfaction of the department or the board, as appropriate. (c) The department or a county, district, or regional board of health may revoke a registration under this section for violation of this section or rules adopted under this section or for other good cause shown, after a hearing conducted upon reasonable notice to the registrant and at which the registrant may be present with counsel and may be heard. (8) A person who purchases a product made by a registrant shall not resell the product. (9) Sections 25-4-1604 through 25-4-1613 do not apply to this section. (10) During the second regular session of the sixty-ninth general assembly, the department may report to the joint house agriculture, livestock, and natural resources committee and the senate agriculture, natural resources, and energy committee, or any successor committees, regarding registries in this state, including the number of registries, the number of registrants in each registry, and any other information or recommendation relevant to registries. (11) As used in this section: (a) "Grower" means a natural person who is a resident of Colorado and who grows the principal or a key agronomic ingredient of any food sold under this section, as specified in paragraph (c) of subsection (3) of this section. (b) "Home" means a primary residence occupied by the registrant producing the food under this section. (c) "Nonpotentially hazardous" has the meaning set forth in section 25-4-1602. (d) "Registrant" means a grower registered under this section. SECTION 5. 24-37.3-103, Colorado Revised Statutes, is amended BY THE ADDITION OF THE FOLLOWING NEW SUBSECTIONS to read: 24-37.3-103. Council - purpose and duties. (3) (a) The council may also study the feasibility of creating Colorado "fresh and local", a subclassification of the "Colorado proud" program that specifically emphasizes buying fresh Colorado produce and other products that are produced locally and sold directly to consumers at farmers' markets, roadside stands, community-supported agriculture organizations, or similar venues. (b) If the council does study a potential Colorado "fresh and local" program pursuant to paragraph (a) of this subsection (3), the council shall make recommendations regarding a program to the department of agriculture. Furthermore, if, pursuant to a study, the council decides that a "fresh and local" program is feasible, the council may collaborate with the department of agriculture to establish methods and standards for identifying products under the program, including copyright and logo use guidelines and restrictions. (4) Consistent with the council's mission, functions, and duties, the council may support and encourage efforts to set goals to make local foods available to local institutions and schools. In addition, the council may review successful programs and models used by other states to facilitate access to local foods. SECTION 6. 35-1-104 (1), Colorado Revised Statutes, is amended BY THE ADDITION OF A NEW PARAGRAPH to read: 35-1-104. Functions, powers, and duties. (1) The department has and shall exercise the following functions, powers, and duties: (h.5) To promote, within existing appropriations, farmers' markets located within the state, including support or development of farmers' market organizations and working groups and the provision of education, outreach, and other assistance; SECTION 7. 35-21-105, Colorado Revised Statutes, is amended to read: 35-21-105. Exemption. (1) Any Except as provided in subsection (2) of this section, a person who produces and sells, only at retail on the premises at which the eggs were produced, at a farmers' market, or through a community-supported agricultural organization, less than two hundred fifty dozen eggs per month shall be exempted is exempt from all provisions of this article; except that such a producer may apply for a dealer's license and, upon compliance with this article, be issued a dealer's license. (2) A person transporting eggs for sale at a farmers' market or similar venue under subsection (1) of this section shall: (a) Comply with the transport requirements of section 35-21-103 (3) and any rules, including rules requiring refrigeration, promulgated under this article regarding the safe transport and washing of eggs; and (b) Affix to the egg package a label containing the address at which the eggs originated and the date on which the eggs were packaged. Any eggs not treated for salmonella must also include the following statement on the package: "Safe Handling Instructions: To prevent illness from bacteria, keep eggs refrigerated, cook eggs until yolks are firm, and cook any foods containing eggs thoroughly". SECTION 8. Act subject to petition - effective date. This act shall take effect at 12:01 a.m. on the day following the expiration of the ninety-day period after final adjournment of the general assembly (August 10, 2011, if adjournment sine die is on May 11, 2011); except that, if a referendum petition is filed pursuant to section 1 (3) of article V of the state constitution against this act or an item, section, or part of this act within such period, then the act, item, section, or part shall not take effect unless approved by the people at the general election to be held in November 2012 and shall take effect on the date of the official declaration of the vote thereon by the governor.