LB262 Takes into Effect July 19, 2024

Dear Cottage Food Producers,

This is the email you have been waiting for. It is long, but I recommend that you read it completely. I have made notes in the law to better explain what the meaning is. My notes are in red. I am also very happy to announce our new Nebraska Cottage Food webpage will be live tomorrow at 8 AM! The new site is found at cottagefoodlaw.unl.edu It will have lots of information for you to use, and it is a work in progress. This letter will be stored there, as will any professional development programs offered. Check back often for updates. Please understand that this law is new and we do not have all of the answers right now, so questions are good. The Nebraska Department of Ag is in the process of hiring a specialist that will be 100% dedicated to Cottage Foods! This is exciting news. Hopefully that person will be in place by the end of August. Watch for an email soon for a Q & A Zoom with the Dept. of Ag at the end of August. As always, let me know if Extension can be of any help.

Cindy Brison

Cottage Food Changes

LB262 states:

Food establishment shall mean an operation that stores, prepares, packages, serves, sells, vends, delivers, or otherwise provides food for human consumption. The term does not include:

(7) A private home where a producer of food that meets the requirements of section 81-2,280 is prepared for sale directly to the consumer including, but not limited to, at a farmers market, fair, festival, craft show, or other public event or for pick up at or delivery from such private home;

This has changed. Food must be prepared in a private home. You can no longer prepare it in a mobile unit. Any food sold must be prepared in the private home before transporting for sales. An example would be snow cones. You would have to prepare the snow cones at a private residence before selling at a Farmer’s Market.

81-2,280. Producer of food at private home; requirements; registration; contents.

1. A producer of food at a private home as described in subdivision (7) of section 81-2,245.01 shall meet the requirements of this section.
2. Such producer shall only provide food that is not adulterated and is not any of the following types of time/temperature control for safety food:
   1. This means you need to sell food that is safe to eat. If it is contaminated and unsafe to consume, you cannot sell it. The following foods are not allowed for sale under cottage foods:
      • Any part of an animal, vertebrate or invertebrate, or animal by product;
        • No meat, poultry or fish. No home-made yogurt or whipped cream. Any ingredients used to prepare for cottage food sales must be purchased from a permitted establishment (a grocery store for example, and not your local farm).
   2. Fluid milk or milk products as defined in the Grade A 12 Pasteurized Milk Ordinance adopted by reference in the Nebraska Milk Act;
      • Dairy used as an ingredient is fine. An example would be a cheesecake with whipped cream on top.
      • Ice cream with a cooked custard base is fine, no ice cream with uncooked raw eggs. No raw cookie dough in ice cream or cheesecake, etc.
   3. Raw eggs;
      • Can still be sold if you have an egg license—just not under cottage foods.
   4. Unpasteurized juice;
      • You would have to have juice tested by a lab for pH and water activity to sell
      • No tomato juice
   5. Infused oils or infused honey;
      • You would have to have infused honey tested in a lab for pH and water activity to sell
   6. Sprouts; (ALL)
   7. Low-acid canned food and hermetically sealed acidified food;
      • Jams and jellies are ok—pepper jelly must have pureed peppers and no chunks
      • No other home canned foods
      • Canned salsa is a no, but fresh salsa in a plastic container with a recommended shelf life of 7 days is fine.
   8. Tofu, tempeh, or similar meat substitutes; or
   9. Kimchi, kombucha, or similar fermented foods.
3. Prior to conducting any food sales, the producer, other than a producer selling food that is not time/temperature control for safety food directly to the consumer at a farmer’s market, shall successfully complete:
   • A nationally accredited food safety and handling education course that covers topics such as food safety issues, regulations, and techniques to maintain a food-safe environment;
   • A certified food safety and handling training course offered at a culinary school or as required by a county, city, or village to obtain a food handler permit; or
   • A food safety and handling education course approved by the department.
4. The producer shall register with the department prior to conducting any sales of food. The registration shall be made on forms prescribed by the department and include (a) the name, address, and telephone number of the producer, (b) the type of food safety and handling education or training course taken pursuant to subsection (3) of this section and the date of its successful completion, and (c) proof of private well water testing for contamination by nitrate or bacteria if the producer uses private well water. This subsection shall not apply to a producer of food that is not time/temperature control for safety food selling directly to the consumer at a farmer’s market.
   • This has changed a little—you have always needed your well tested to sell Cottage Foods, but now you need proof.
5.  
   1. The producer shall inform the consumer by a clearly visible notification that the food:
      • Was prepared in a kitchen that is not subject to regulation and inspection by a regulatory authority; and
      • May contain allergens.
   2. For sales conducted at a farmer’s market, fair, festival, craft show, or other public event, such notification shall be provided at the sale location.
   3. For sales conducted for pickup or delivery, such notification shall be provided at the producer's private home, on the producer's website, if such website exists, and in any print, radio, television, or Internet advertisement for such sales.
6. The producer shall label the food so that the name and address of the producer is provided to the consumer on the package or container label. Food that is time/temperature control for safety food shall also have labeling that includes ingredients in descending order of predominance.
   • This has changed. You must have the name and address of the producer on the label. A PO Box is fine—it must be an address that can be accessed by mail. If you are selling a TCS food, the ingredients must be listed in descending order of predominance. An example would be a cheesecake, there would be more dairy and eggs than flavorings, so would be listed first.
7.  
   1. Food that is not time/temperature control for safety food may be delivered by United States mail or a commercial mail delivery service.
      • TCS foods MAY NOT be delivered by mail.
   2. Food that is time/temperature control for safety food shall be delivered only by the producer to the consumer in person. When transported, such food shall be maintained at a temperature in accordance with the Nebraska Pure Food Act and not be transported for longer than two hours.
      • Cold TCS foods must be maintained below 41 ˚F or frozen during transportation. Hot TCS foods must be maintained above 135˚F during transportation. If selling at a farmer’s market or craft fair, the TCS product must maintain the same temperatures the entire time you are selling.
8. The provisions of this section supersede and preempt any ordinance, rule, regulation, or resolution regulating food safety and handling adopted or enacted by a political subdivision that is not in conformance with this section.

Common Q&As

Question: “Any part of an animal, vertebrate or invertebrate, or animal byproduct;” Does this mean that it can’t be made from any animal products, like eggs or milk?
Answer: No. This is referring to meat, lard, tallow, bone broth, bone meal, etc. The food being sold cannot contain meat ingredients.

Question: It says no raw eggs. Does this mean I can’t sell eggs anymore?
Answer: The sale of eggs does not fall under cottage food. However, they can still be sold exactly as they have been sold. If you want to sell eggs you have produced and have less than 3,000 hens, contact the Nebraska Department of Ag and ask for an egg number. It’s free and you will be provided with additional guidance. It can also be found here.

Question: I have a dairy cow and sell raw milk, can things like yogurt, mozzarella, and butter using raw milk be sold as cottage food?
Answer: Raw milk can only be sold on the farm directly to the end user and CANNOT be sold in any other manner without violating the Nebraska Milk Act . So raw milk could not be used to make cheese, ice cream, etc. to sell

Question: Can jams and jellies be sold as cottage food?
Answer: Traditional jams and jellies can be sold, as long as they are made using pectin.

Question: Can chocolate covered strawberries be sold as cottage food?
Answer: Yes, this would be allowed.

Question: If I want to sell my cheesecake at the farmers market, is there anything special I need?
Answer: You will need to follow any requirements that the farmers market operation has for its vendors. Additionally, cheesecake is a time/temperature for safety food (TCS). This means that you will need a way to keep your cheesecake 41F or colder while there and labeled properly.

Question: What are the milk products that are not allowed to be sold as cottage food?
Answer: Raw milk products and milk products as defined in the Grade A 12 Pasteurized Milk Ordinance adopted by reference in the Nebraska Milk Act CANNOT be sold as cottage food. Common items on the excluded list include milk, cream, sour cream and yogurt.

Question: Does this mean I cannot add whipped cream to the cakes I want to sell as cottage food?
Answer: Products can contain milk and milk products as ingredients as long as the milk products you use in your finished product are from an approved source (purchased from a licensed entity such as a grocery store).

Question: I don’t see ice cream or cheese on this list. Does that mean I can make and sell those as cottage food?
Answer: Yes. You can sell ice cream, cheese, cheesecake, pudding, and other items using approved sources. These products are considered time temperature for safety and would require refrigeration or freezing.

Question: Can I make and sell homemade ice cream using farm fresh eggs from my chicken coop as cottage food?
Answer: You can make and sell homemade ice cream but you CANNOT use raw eggs that have not been cooked.

Question: Can I make a cake that uses raw eggs as cottage food?
Answer: Yes. As long as the cake has been cooked fully and eggs are no longer raw.

Question: We have a snow cone cottage food business out of a mobile trailer. Can we still operate?
Answer: If products are not pre-made at a private home, you cannot operate under the cottage food exemption. LB 262 of 2024 now clearly provides that all cottage food products must be prepared in a private home.

Question: The law states that my TCS food must have a label that includes ingredients in descending order of predominance. What does that mean?
Answer: Listing ingredients in descending order of predominance is by weight and means that the ingredient that weighs the most is listed first, and the ingredient that weighs the least, is listed last. This reflects what dominant ingredients are in your product.

Question: Can I sell my hermetically sealed BBQ sauce as a cottage food?
Answer: No.

Question: What address needs to be on my labels? Is just the city or PO Box fine?
Answer: It needs to be the specific mailing address where you can be contacted.

Question: What does the sign need to read at an event?
Answer: This food was prepared in a kitchen that is not subject to regulation and inspection by the regulatory authority and may contain allergens.

Question: Can I sell freeze dried food under cottage food?
Answer: If the food being freeze dried and sold is not excluded from being sold as a cottage food in the exemption.

Question: My friend owns a coffee shop and really wants to sell my cottage food items. Can she sell them?
Answer: No. Cottage food must be sold directly to the customer.