Alabama Cottage Food: No Permit, No Sales Cap, but a Course and a Five-Part Label

The definitions do most of the work, because they decide what may be sold at all. Section 22-20-5.1(a)(1) defines cottage food as a non-potentially hazardous food prepared in a person's home that does not require time or temperature control for safety to limit pathogenic microorganism growth or toxin formation and that does not include meat, poultry or fish. It then lists what the term includes: cakes, breads, Danish pastries, donuts, pastries and pies; jam, jellies and fruit preserves; candy; dried and dehydrated herbs, herb mixes, vegetables or fruits; roasted coffee; dried baking mixes; and fermented or preserved vegetables or fruit that do not result in the production of alcohol and that have an acidity level allowed by the department. Anything needing refrigeration is outside the definition, so cheesecake, custard pies, cream fillings and canned low-acid vegetables are not cottage foods in Alabama.

The operator definition in § 22-20-5.1(a)(2) is where the 2021 amendment shows. A cottage food production operation is a person operating out of his or her home who produces cottage food for sale, sells it only directly to consumers, whether in person, by phone or online, in the state, and delivers it directly to consumers in the state, whether in person, through an agent of the producer, or by mail. Two limits sit inside that sentence and are easy to miss. Sales must be direct to consumers, so selling wholesale to a grocery, a coffee shop or a restaurant for resale falls outside the section. And both the sale and the delivery are confined to Alabama, so shipping a cottage food order across a state line is not authorized by § 22-20-5.1. What the amendment removed is the old requirement that the transaction be face to face: phone and online ordering and mail delivery are now written into the definition itself, and the section as it now reads carries no dollar limit on annual gross sales anywhere in its text.

Section 22-20-5.1(a)(4) defines "home" as a primary residence that contains a kitchen and appliances designed for common residential use, which rules out a second property, a detached outbuilding fitted out as a bakery, or a commercial kitchen rented by the hour.

The two operator duties are in § 22-20-5.1(e), and both are continuing rather than one-off. The operator must complete a food safety course approved by the State Department of Public Health and must maintain certification of having attended and passed it. Every cottage food sold to a consumer must carry a label in at least size 10-point font showing the common or usual name of the food; the name and home or P.O. Box address of the cottage food production operation; a statement that the food is not inspected by the department or local health department; a list of the ingredients in descending order of predominance; and a disclaimer that the food may contain allergens. That is five required elements, and the font size is stated in the statute rather than left to guidance.

The same scheme is carried into the State Board of Health's own rules. Alabama Administrative Code r. 420-3-22-.01(4)(a)8 repeats the cottage food definition, and r. 420-3-22-.01(4)(a)14(iii) excludes a cottage food production operation from the definition of "food establishment" for the whole of Chapter 420-3-22, which is the chapter that otherwise makes a permit compulsory under r. 420-3-22-.08(2). The rule restates the training and labelling duties in the same terms as the statute, so the statute and the regulation agree rather than conflict here.

One boundary is worth stating plainly. Section 22-20-5.1 authorizes shelf-stable goods, not meals. Cooking hot food to order at home for customers is not cottage food production, is not covered by the § 22-20-5.1(b) permit exemption, and would run into the permit requirement in Ala. Admin. Code r. 420-3-22-.08(2).

Alabama's enforcement lever over a cottage food operation is deliberately narrow. 1(c) bars the State Department of Public Health and county health departments from regulating production at a cottage food production operation except as that section provides, so there is no routine kitchen inspection, no plan review and no permit to suspend. 1(d) preserves is the department's power to issue a stop sale, seize, or hold order for any food suspected of being the cause of a food borne illness, and that power reaches the product rather than the kitchen.

An operator who steps outside the definitions loses the exemption entirely rather than being fined under it: selling a time and temperature controlled food, selling wholesale to a retailer instead of directly to a consumer, or shipping outside Alabama puts the operation back inside the definition of a food establishment in Ala. Admin. Code r. 01(4)(a)14, and r. 08(2) makes it unlawful for any person to operate a food establishment in Alabama without a valid permit issued by the Health Officer. 1(e), is a failure to meet the conditions the exemption is built on.

Separately, § 20-1-33(a) requires a food safety permit from the Department of Agriculture and Industries, at a $50 annual nonrefundable fee under § 20-1-33(c), for a food sales establishment selling baby food, infant formula or potentially hazardous food, which is a reminder that a second agency regulates the shelf side of the food business.