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Selling Food That You Make In Your Kitchen

Over the holidays, a friend gave us nicely jarred strawberry jam that she made at home.  Another friend spent a Sunday in our kitchen pickling various vegetables, including cauliflower, golden beets, candy cane beets (that was the first I ever heard of those), and radishes.  I heard someone tell each of these people that they should sell their creations.  I bit my tongue each time.   I didn’t want to be the lawyer in the room saying, “Well, you know, you can’t really do that, blah, blah, blah, blah, blah.”  Some retail food can legally be produced in a residential kitchen and some cannot.

There are numerous state and federal laws governing the production and distribution of food.  This article focuses on a small segment of food that can be legally prepared in a New Hampshire residential kitchen and sold to the public.  These foods are called “homestead food products,” and the relevant statute is RSA 143-A.  The New Hampshire Department of Health and Human Services (DHHS) has promulgated administrative rules that flesh out RSA 143-A.

According to the administrative rules, the term “homestead food products” includes the following foods:  baked items; double-crusted fruit pies; candy and fudge; jams and jellies; packaged dry products; and acid foods such as vinegars and mustards.  I love when the law gets this specific.  Generally, these foods can be prepared in a residential kitchen and sold to the public, though if you make jam or jelly from a recipe that is not from the National Center for Home Food Preservation, there are additional requirements that you must meet.

Depending on where you sell the food and how much business you do in a year, you may need a license from DHHS to set up your business as a “homestead food operation.”  There are fifteen municipalities, including Keene, that have their own licensing requirements that are often similar to those of DHHS.

If you produce one or more “homestead food products” and your annual gross sales are less than $20,000 and the food products are sold from the homestead residence, the owner’s own farm stand, farmer’s markets, or retail food stores, then no license is required.

There are two circumstances under which you need a license.  One depends on the volume of sales, and the other depends on where the food is sold.  If your gross sales of homestead food products exceed $20,000, a license is required.  Period.  Next, even if your gross annual sales are less than $20,000, you need a license if you plan to sell your food to restaurants or other retail food establishments, over the Internet, by mail order, or to wholesalers, brokers, or other food distributors that will resell the food.  The license fee is $150 a year and the application is available at the DHHS website.

There are labeling requirements for packaged food that differ depending on whether the food operation is licensed.  Be aware that even homestead food operations that are not required to be licensed must follow the labeling requirements.  The exact wording that must be used is in the statute.  As a consumer of locally produced packaged foods, keep an eye out for labels.  You may see one of the following statements: “This product is made in a residential kitchen licensed by the New Hampshire Department of Health and Human Services”; or “This product is exempt from New Hampshire licensing and inspection.”

There are certain foods that cannot be produced by a homestead food operation.  These are called “potentially hazardous food,” and include cheesecakes, pumpkin pies, custards, soups, sandwiches, pickles, and relish.  This list is put out by DHHS and is not exhaustive.  When I was in law school, I got food poisoning from a homemade custard dessert, so I am happy to see that custards made the “hazardous” list.  Since then, I haven’t been tempted even by a licensed custard.

“Potentially hazardous foods” are foods that require temperature control to prevent such pathogens as botulism and also include low-acid canned foods.  If you want to produce these foods for sale to the public, you are not eligible to be a homestead food operation—licensed or not—and must comply with other food laws that are beyond the scope of this article.

For licensed homestead food operations, there are some requirements in the administrative regulations regarding kitchen set-up.  For example, if your bathroom opens into the kitchen, the bathroom must have self-closing doors and mechanical ventilation.  (And please wash your hands!)  And if you have a laundry machine in the kitchen, you are not allowed to run it during food production.  That seems reasonable.  You might as well wait to do the laundry until you are done making your double-crusted fruit pies so that you can include your amateur chef uniform in the wash.

Permits: Know the law before you work on your property

Attorney Jason Reimers writes a column for the Monadnock Ledger-Transcript. Read his article entitled “Permits: Know the law before you work on your property” published on October 27, 2015.

The Law of Nuisance

By: Jason Reimers, Esq.

You have probably heard of the legal concept of “nuisance.” Maybe your neighbor’s rooster seems like a nuisance. Maybe the noise, traffic, and dust from the quarry next door are bothersome. Maybe someone has called your unruly dog a nuisance.

You don’t want to be a nuisance. Being a nuisance can get you sued. Perhaps more importantly, you should want to be a good neighbor. To help keep you in your neighbors’ good graces—and increase the likelihood that they will share their garden’s bounty with you or alert you to suspicious activity at your home while you are away (I’m speaking from experience)—let’s review what a nuisance is.

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See You In Court

By: Jason Reimers, Esq.

If anyone threatens you with the old cliché, “I’ll see you in court!,” you might respond, “Which court?” Even in New Hampshire there are many different courts, and not all of them involve a judge in a black robe.

In a broad sense of the word, a “court” is any place where a decision-maker decides whether legally sufficient evidence has been presented to prove that one party has violated a duty to, or damaged, the other party in a way for which the law provides a remedy.   For example, in a criminal case the court must decide whether the prosecutor has proven beyond a reasonable doubt that someone has committed a crime. In a civil case, a wrongful act such as negligence or a breach of contract must be proven by a preponderance of the evidence, which is a lesser standard.

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Really Small and Good Beer

By: Jason D. Reimers, Esq.

Once known as a “beer wasteland,” New Hampshire is making its mark in the world of good beer. Becoming the first state in the nation to license “nanobreweries” is part of the reason. Smaller than a microbrewery, a nanobrewery produces less than 2,000 barrels of beer annually. That’s equivalent to about 62,000 gallons, or not quite enough to fill one tanker truck. Compared with Anheuser-Busch, which produce more than 3 million barrels annually in Merrimack, 2,000 barrels of beer seems small. But, most nanobreweries actually produce less.

Before the nanobrewery law, the only way home brewers could sell their beers was with a beverage manufacturer’s license that costs $1,200. A nanobrewery license is only $240, and it permits a brewer to sell beer directly to bars, restaurants and stores, at farmers’ markets, and on-site to individuals.

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Mixing It Up With Farmers

By: Jason Reimers, Esq.

Chances are, you’ve bought something directly from a farm in the past year.  Maybe you picked up eggs or soup bones at Sunnyfield Farm, cheese at Boggy Meadow Farm, or your produce through 1780 Farm’s CSA (Community Supported Agriculture) program.

There are more than 4,000 farms in New Hampshire, and the Monadnock Region has an especially bountiful crop of farms.  New Hampshire’s farms are national leaders in a couple of categories.  First, you may be surprised to learn that New Hampshire’s farms are ranked first in the country in the percentage of goods sold directly from the farm to the consumer. 

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Just Passing Through: Fracked Gas, the Northern Pass, and Tar Sands

By: Jason Reimers, Esq.

With no east-west interstate and a wild northern section, New Hampshire has long been more of a destination than a pass-through state for human travelers. However, fossil fuels are passing through all the time. Several existing pipelines already carry natural gas and oil through New Hampshire, and many companies want to increase and diversify the fuels and electricity flowing through New Hampshire, most of which would be passing through on its way to somewhere else. These projects include the Northern Pass, a pipeline carrying Pennsylvanian natural gas, and pipelines carrying Canadian natural gas and tar sands oil.

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Don’t Fertilize the Lake

By: Jason Reimers, Esq.

As I write this, my backyard has not yet come out from under the snow. When it does, it’s going to be brown and matted. It will eventually turn green, though I won’t spend any time fertilizing it. Weeds look as good as grass when mown. However, if you are someone who likes a grassy green lawn, you may be buying fertilizer soon. I have one request: read the instructions on the side of the fertilizer bag and then follow them. By doing that, you could keep dangerous algae blooms out of our favorite places to canoe, fish, and swim.

A couple months ago, I wrote a column about road salt and the harmful effects that road salt has on our wells and waterways. Road salt contains chloride and sodium. Too much chloride in a lake is toxic for aquatic life. Too much sodium in your well is bad for your health. There are parallels between road salt and fertilizer.

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A Few Tips on Participating in Planning and Zoning Hearings

Some proposed developments generate a lot of interest, and the planning and zoning board hearings considering those developments often are crowded and, sometimes, contentious. Often, landowners who abut a proposed development have concerns that the development will have an undesirable effect on the neighborhood or their property values. Recently in Dunbarton, neighbors voiced their concerns about a large chicken coop that a farmer wanted to build on his land, and proposed wind farms are guaranteed to draw a crowd. You Antrim readers know that! Whether it’s the light from Crotched Mountain’s night skiing in Francestown or a Dollar General store in Winchester, Jaffrey, or Swanzey, some proposed developments inspire people to speak up.

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A New Technique to Keep Farmland in Farming: Option to Purchase at Agricultural Value (OPAV)

By: Amy Manzelli, Esq. and Carolyn Baldwin, Esq.

As interest in local and sustainable agriculture develops, organizations involved in agriculture and land conservation increasingly focus their efforts on preserving farmland. Keeping land in sustainable farming generates numerous environmental benefits, including carbon sequestration; rainwater and runoff storage, infiltration, and treatment; wildlife habitat, and more. The question arises: How to assure that preserved farmland remains actively farmed? One new technique: The Option to Purchase at Agricultural Value, or OPAV.

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