Food and food safety were on the dockets of many state legislatures in 2021

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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
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…

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