South Carolina Home-based Food Production Law Guidance

The South Carolina (SC) Home-based Food Production (HBFP) Law guidance document was developed to provide clear and consistent information about the law for home-based food producers to assist them in following the law and providing quality and safe food to South Carolina consumers.

Home-based Food Production or “Cottage Law” History

In 2012, a group of home bakers worked with several members of the legislature to craft a bill to expand the “Weekend Home Bakers” exemption provision of SC Department of Health and Environmental Control’s (DHEC) regulation 61-25. The bill was based on information from other states that had cottage laws. While DHEC and the SC Department of Agriculture (SCDA) had some limited input into the bill, the bill was not authored by either regulatory agency. This collaboration between industry and the legislators resulted in the first HBFP law and expanded the exemption that had previously been allowed by R. 61-25. It established labeling and sanitation requirements for the foods allowed under the law and exempted them from regulatory oversight. The law was revised in 2018 to remove an unnecessary reference to SCDA as this law was only applicable to a limited category of non-potentially hazardous foods sold directly to the end consumer (retail sales).

On January 28, 2021, Senate bill 506 was introduced in the Senate. This bill was also a collaboration between the cottage industry and the legislators to revise and expand the foods allowed by the HBFP law and to allow these foods to be sold online and at retail stores. As before, DHEC and SCDA had some limited input into the bill while it was being debated in committee but did not author the bill. After much discussion, the bill passed and became effective on May 23rd, 2022, allowing for additional non-potentially hazardous foods to be exempted from food safety oversight by DHEC and SCDA while establishing labeling and sanitation requirements for these foods.

This guide has been created to address the concern that was presented in those committee meetings of conflicting interpretations and information on the law. It is the result of collaboration between the regulatory agencies charged by state statutes with food safety oversight, academia, and cottage food industry groups.

Food producers who want to sell food under South Carolina’s Home-Based Food Production Law, must follow the guidelines set forth by South Carolina’s Code of Laws 44-1-143. This law is separate from DHEC’s SC Regulation 61-25 “Retail Food Establishments.” Home-based food operations are individuals preparing non-potentially hazardous food as outlined in this guidance document.

This guidance document outlines the requirements of the law, which foods are allowed and not allowed, labeling, using the SC DHEC ID number system and more. In South Carolina there are several agencies that partner together to assist our food producers. If you find that this guidance document does not answer a question that you have, please feel free to reach out to us at sccottagefood@clemson.edu.

Foods that are not covered under the SC Home-based Food Production Law must be sold under the assigned regulatory authority. See Regulatory Decision Tree

A retail food establishment permit, issued by SC DHEC, is not required to sell retail so long as the requirements below are met.

Similarly, a South Carolina Department of Agriculture Registration Verification Certificate is not required to sell wholesale if the below requirements are met.

Requirements to Sell a Home-based Food

Home-based food producers are allowed to sell food to the following:

1. Direct to the consumer (including on-line and mail order)
2. Retail stores, including grocery stores
   1. Retail stores must clearly post a sign indicating that the home-based food products are not subject to commercial food regulations.
   2. Home-based food may not be served or used as an ingredient in a retail food establishment (restaurant) without a variance approved by DHEC, but may be sold in packaged and labeled form at retail food establishments. The variance is required to state how the consumer will be informed as required by the law that the food or ingredient used in a food served was prepared in a home kitchen. The consumer advisory must contain the following statement about the food, or the ingredient used to produce the food: ‘PROCESSED AND PREPARED BY A HOME-BASED FOOD PRODUCTION OPERATION THAT IS NOT SUBJECT TO SOUTH CAROLINA’S FOOD SAFETY REGULATIONS.’

HBFP Law Section G Exemption

Section G states “The provisions of this section do not apply to an operation with net earnings of less than fifteen hundred dollars annually but that would otherwise meet the definition of a home-based food operation provided in subsection (A)(1).” This allows those operations that otherwise fit the definition of a Home-based Food Production, but do not have sales more than $1500 a year, to not have to meet the labeling or other provisions of the law & may produce and sell the same items. However, they may not sell at retail locations without the required labeling as labeling is necessary for the retailer to show that the food is from an approved source as required by DHEC regulations.

The producer must ensure that all food that is produced, packaged, and stored in the home kitchen is protected from contamination. To do so, the producer must:

1. Supervise others who are in the kitchen,
2. Prohibit all animals, including pets, from the kitchen during production and packaging and ensure that animals do not come in contact with ingredients, packaging, or prepared items,
3. Not use the kitchen for home-related activities while food is being produced or packaged for sale,
4. Exclude any person from the kitchen if they have a communicable disease that can be transmitted by food, has an infected wound, or has an acute respiratory infection related to the food being prepared or packaged for sale,
5. Ensure that all people responsible for any part of handling, processing, or packaging food for sale knows and follows all safe food handling practices,
6. Ensure the home is clean and sanitary to reduce the risk of cross contamination during food processing and packaging.
   1. Approved water supply
      1. “Department approved water source” as specified in SC Law 44-1-143 means either a public drinking water system, or a private well that is tested at least annually for Total Coliform Bacteria by a laboratory certified for public drinking water testing in SC. The public can obtain sample bottles and private well testing through the SC DHEC Regional Environmental Affairs Offices (https://scdhec.gov/ea-local-offices). 
      2. For guidance regarding “onsite wastewater systems” (septic tanks), contact SC DHEC at 803-896-8657. General information on the DHEC Onsite Wastewater Program can be obtained from that program’s home page (https://scdhec.gov/environment/septic-tanks/septic-tanks-general-information). 
   2. Separate storage for ingredients used in foods for sale
   3. Properly working refrigeration
   4. Adequate facilities to meet the need for cleaning and sanitizing all utensils and equipment including a sink with an adequate quantity of hot water
   5. Enough sanitary storage for utensils and equipment
   6. Hand washing sink that is separate from the sink used for cleaning utensils and equipment
   7. Sanitary and working toilet
   8. No signs of rodent or pest activity
   9. Department-approved sewage disposal

Safety requirements found in the law must be followed carefully. Even commercially processed foods that are to be dehydrated or freeze dried can be re-contaminated accidentally by failing to follow proper sanitation, handling, health, and hygiene requirements. Drying the product by either method does not reliably destroy pathogens that may be accidentally introduced in handling by the cottage food producer. They are more likely to go dormant until given the opportunity to grow (consumption), and they may also become more heat resistant. It is the responsibility of the cottage food producer to produce food that is not contaminated because of failing to follow those safety requirements. 

All key words that are found bolded throughout this guidance document are listed and defined in the following table.

The following table provides a list of foods that are covered by the home-based food production law. This example list is not complete. If you do not find a product on this list or the list of foods that are not covered, then please email us at sccottagefood@clemson.edu for guidance.

The following table provides a list of foods that are NOT covered by the home-based food production law. This example list is not complete. If you have any questions, then please email us at sccottagefood@clemson.edu for guidance.

There have been many questions regarding honey production and how this relates to the HBFP Law.  Beekeepers currently operating under an RVC or Honey Exemption from the SCDA who wish to produce honey under the HBFP law must surrender their RVC or exemption. This is to prevent duplication of regulatory oversight. 

The RVC exemption is for “honey” only – this means pure honey with no additional 
ingredients - and is not defined to include honey products (i.e., infused products or creamed honey that is purchased from another source and repackaged). Either you are a honey producer with an RVC Exemption, or you are exempt under the Cottage Food regulations, you cannot be both. If a producer does not want to obtain an RVC and they want to surrender the exemption, they must send an email to notify SCDA that they wish to surrender their exemption. Once SCDA receives the email the exemption is considered voided, and they may fall under the Cottage Food regulations. 

The HBFPL does not impact honey operations wishing to continue operating under an RVC using a registered and inspected honey house.  The RVC allows for a wider market because the honey operation may sell without restriction (including across state lines and to distributors/manufacturers).

All food produced and sold under the Home-based Food Production Law must be properly labeled and comply with federal regulations. The following are required on the product’s label:

1. Name and address of the home-based food operation. If you do not want to include your home address on the label, you can utilize the SC DHEC identification number system (Refer to appendix F of this resource guide)
2. The standard name of the product
3. The ingredients in the product in descending order of predominance by weight
4. A conspicuous statement printed in all capital letters and in a color that provides a clear contrast to the background that reads:

‘PROCESSED AND PREPARED BY A HOME-BASED FOOD PRODUCTION OPERATION THAT IS NOT SUBJECT TO SOUTH CAROLINA’S FOOD SAFETY REGULATIONS.’

No health claims may be made in association with foods produced in a home-based food operation. For more information, see Dietary Supplements guidance from the FDA Center for Food Safety and Applied Nutrition (CFSAN) - https://www.fda.gov/food/dietary-supplements/information-industry-dietary-supplements. 

See Labeling guide for an example

Nutrition Labeling

Nutrition labeling or having a Nutrition Facts panel on your label is not required for home-based food operations. Some food producers choose to include a panel for marketing purposes. If you would like to have a Nutrition Facts Panel developed for your product Clemson Extension’s Food2Market program can assist you.

Allergen Labeling

Allergen labeling is required for the safety of consumers.

The name of the food source for each major food allergen contained in the food or a disclaimer

that any major food allergen may be contained in the food must be listed in the allergen statement.

The major food allergens are Wheat, Soy, Milk, Egg, Finfish, Crustacean Shellfish, Peanuts, Tree Nuts (add into about specifying), and Sesame. When a product contains tree nuts, finfish, or crustacean shellfish then the specific type must be labeled in the allergen statement (e.g., walnuts, pecans, almonds, cod, flounder, lobster, shrimp, or crab)

There are many resources and cookbooks that are available that provide science-based or academic information related to preparing non-potentially hazardous foods. It is important to ensure that resources that you choose to use are science-based, meaning that they have undergone appropriate testing or research to ensure that the product is safe if the recipe is prepared exactly as written.

Recipes for jams, jellies, and preserves must come from science-based recipes. Recipes found on social media, websites or passed along from other people should not be used unless you can verify that the recipe is from a science-based resource. The following is an example list of science-based resources.

• The National Center for Home Food Preservation
• So Easy to Preserve
• USDA Complete Guide to Home Canning, 2015
• Lime and Lemon Curd

Standards of Identity

The FDA has developed standards of identity (SOI) for many prepared foods such as milk chocolate, various breads, and jams. The SOI provides information on what ingredients must be in the product, what proportion of ingredients are required and processing methods. Foods labeled as a product that has a standard of identity must meet the FDA defined SOI for that product. More information on SOI and to look up the SOI for specific foods can be found on the following website.

There are other foods and food sales that are exempt from the requirement to have a Retail Food Establishment permit by SC Reg. 61-25, Section 8-301.12(A). These other types of food sales are NOT COTTAGE FOOD and may be prepared somewhere other than a home kitchen and sold onsite directly to the end consumer. These exemptions only apply to retail sales (direct to the end consumer) and do not apply to foods prepared and sold at a retail location by someone else (wholesale).

• Personal chefs . . . employed to cook for the owner and occupants of a private residence and their guests. A personal chef may purchase the food and shall prepare, cook, and serve the food at the private residence only.
• Cooking schools or classes where registered students are active participants in preparing the food and are the exclusive consumers of the foods prepared. Food prepared by participants may not be sold!
• Bake sales operated by churches or charitable organizations where homemade cakes, breads, and cookies may be offered for sale only if they are not time/temperature control for safety foods.
• Coffee or coffee-based beverages served with pasteurized milk or cream prepared and served either heated or cold.
• Beverages individually prepared upon consumer’s request from a commercially pre-packaged powdered mix with no additional ingredients that are time/temperature control for safety foods and served in a single service cup.
• Commercially pre-packaged, pre-cut frozen french fries.
• Salt boiled peanuts boiled or grilled corn. (For immediate consumption, not packaged)
• Snow cones or shaved ice served with pasteurized cold milk or cream from a non-reusable container.
• Waffle or pancake mix that is commercially pre-packaged and dispensed from self-serve units for service not to exceed four (4) hours in duration. Leftover portions of these products shall be discarded at the end of service.
• Funnel cakes, mini-donuts, or similar type products prepared from a single unit having no more than three fryers. Mixed batters shall not be held out of temperature for more than four (4) hours. Leftover portions of these products shall be discarded at the end of service. (For immediate consumption, not packaged)

All these foods may be prepared onsite and sold by a business or vendor directly to the end consumer without a Retail permit:

• Popcorn, cotton candy, candy apples;
• Soft drinks or beverages;
• Nachos served with heated cheese product;
• Commercially dehydrated pre-packaged pork skins;
• Pre-formed or prepared pretzels that require baking or warming only.

If you no longer produce in a home kitchen, produce TCS foods, or require a permit from a regulatory authority to sell, the following information will help you determine which regulatory authority will regulate your product.

Retail

Prepare and serve product onsite (restaurant)| SC DHEC Food Safety Division 

Prepare and sell product directly to the consumer only | SC DHEC Food Safety Division 

Wholesale

Contains >3% raw or >2% cooked beef, pork, chicken or lamb | SC Meat and Poultry Inspection Department

Cheese, grade A dairy, soft drinks or water products | SC DHEC Manufactured Food and Dairy Division 

Seafood products | SC Department of Agriculture 

Contains >0.5% alcohol | Alcohol, Tobacco, Firearms Tax and Trade Bureau

All other food products | SC Department of Agriculture 

Label Requirements

• Include a Statement of Identity. This is the common name of the food. “Bread” is the Statement of Identity.
• Complete ingredient list in descending order of predominance by weight. Expand sub-ingredients using parentheses.
• Major food allergens must be declared by their common name. See the next page for detailed information.
• The producer’s business name and physical address (including street address, city, state, and zip code) or DHEC ID number.
• The statement “PROCESSED AND PREPARED BY A HOME-BASED FOOD PRODUCTION OPERATION THAT IS NOT SUBJECT TO SOUTH CAROLINA’S FOOD SAFETY REGULATIONS.” is required to appear on home-based food labels in all capital letters with a sufficiently contrasting background.
• The net contents are placed in the lower 1/3 of the front panel in both customary and metric units.

Allergen Labeling

Allergen labeling is required for the safety of consumers. The current 8 major allergens are Wheat, Soy, Milk, Eggs, Fin Fish (species), Crustacean Shellfish (species), Peanut and Tree Nut (species). Sesame will become the 9th major allergen effective January 1, 2023. The allergen declaration is made one of two ways, as shown below. The major food allergens have been underlined for ease of viewing.

Within the Ingredient List

Within the ingredient list, followed by the common name of the major allergen in parentheses.The whey ingredient indicates it is a milk allergen by listing “Whey (Milk)”. The remaining major allergens are identified by their common name: Wheat, Soy, Egg, Pecan.

Contains Statement

A Contains Statement immediately after the ingredient list.In this instance, the Milk allergen is disclosed in a Contains Statement. If a Contains Statement is used, it must list all major allergens present in the product.A Contains Statement is not required if all allergens are disclosed in ingredient list.

• Can I sell my “cottage food” from a food truck?

  The food must be prepared and packaged in the home kitchen. No preparation or modification may be done in the mobile unit such as icing cupcakes, etc. On the mobile unit. The product sold from the mobile unit must have been pre-packaged.

• Will vacuum packaging of non-TCS products be allowed?

  Vacuum packaging is only allowed for non-TCS foods that have a low water activity, such as dry spice blends, baking mixes, and nut meats.

• Will scales used to provide ingredient weights (requirement to list all ingredients in decreasing order by weight) be required to be calibrated by SCDA?
  No.
• Can individuals render lard from a home kitchen for direct-to-consumer sale?
  No. Lard is considered a meat product and cannot be produced for sale unless produced in either a DHEC kitchen for direct-to-consumer sales or it must be inspected at a fully inspected facility (USDA or SCMPID) for wholesale to large distributors.
• Can I advertise my cottage food business?
  Yes, as long as the law is followed.
• Is soap allowed to be made and sold under the cottage law?
  Soap is a cosmetic and not a food, so it is not covered under the Home-based Food Production Law. Registration to make and sell soap is voluntary.
• Can I sell fruits and vegetables grown at my home (or on my farm) under the cottage law?
  Produce that is only cut for harvest and not further cut or processed after harvest can be sold but is not covered under the Home-based Food Production Law.
• Can I sell have online sales to other states?
  No, online sales of cottage foods only applies to South Carolina.