Virginia Cottage Food: A Closed Product List, No Revenue Cap, and a Mandatory Uninspected-Kitchen Label

The rule Virginia is exempting you from sits in subsection A of § 3.2-5130: it is unlawful to operate as a food manufacturer, food storage warehouse or retail food establishment until the Commissioner of Agriculture and Consumer Services has inspected it and issued a permit under subsection C of § 3.2-5100. If that inspection finds no significant health hazards to the public, the operation may run while the paperwork catches up, and the permit is processed within 30 days of the inspection date. Subsection C then lists the operations that never enter that system at all, and three of the six entries are private homes.

Subdivision C 3 is Virginia’s core cottage food exemption, and it works by naming products rather than by naming a category. The statute covers candies, jams and jellies that are not low-acid or acidified low-acid food products, dried fruits, dry herbs, dry seasonings, dry mixtures, coated and uncoated nuts, vinegars and flavored vinegars, popcorn, popcorn balls, cotton candy, dried pasta, dry baking mixes, roasted coffee, dried tea, cereals, trail mixes, granola and baked goods. Anything outside that list is outside the exemption, and even a listed product loses the exemption unless it is one that does not require time or temperature control after preparation. A cheesecake, a cream-filled pastry or a jar of home-canned green beans is therefore not cottage food in Virginia no matter how it is labelled.

The sales channel rules are unusually generous compared with the product list. Subdivision C 3 permits the food to be sold at any location, through the internet, or by phone to an individual in the Commonwealth for his own consumption, and delivered in person, by mail, or by delivery service. Virginia is therefore a shipping state: a home baker in Roanoke may mail an order to a customer in Norfolk. The three limits are that the buyer must be an individual in Virginia buying for personal consumption, the sale must not be for resale or consignment, and the product may not be offered for sale to be used in or offered for consumption in retail food establishments. Selling wholesale to a coffee shop or placing goods on consignment in a gift store both fall outside the exemption. The subdivision closes by stating that nothing in it prohibits a resident from advertising the food product on the Internet.

The label is a specific list, not a general disclosure. It goes on the principal display panel, or, where the packaging is not large enough to bear the label, on a sign offered with the product for sale, and it must show the name, the physical address or post office box number and the telephone number of the person preparing the food product, the date the food product was processed, and the statement "NOT FOR RESALE PROCESSED AND PREPARED WITHOUT STATE INSPECTION."

Two further private-home exemptions sit beside the main one and are often mistaken for it. Subdivision C 4 covers pickles and other acidified vegetables that have an equilibrium pH value of 4.6 or lower, on the same channel and labelling terms, but adds a ceiling: gross sales may not exceed $9,000 in a calendar year. Subdivision C 5 covers honey produced by the resident’s own hives, and requires that the resident sell less than 250 gallons of honey annually, that he not process and sell other food products in addition to honey except as allowed by subdivisions 3 and 4, and that the product be labelled "PROCESSED AND PREPARED WITHOUT STATE INSPECTION. WARNING: Do Not Feed Honey to Infants Under One Year Old." The honey wording is not the same as the cottage food wording, and a beekeeper who uses the wrong one is out of compliance.

Subsection D states what the exemption is actually worth: a private home that qualifies is exempt from the permit and inspection requirements of Chapter 51 of Title 3.2 and from the inspection fees. It is not exempt from oversight. The same subsection preserves the Department’s power to inspect any private home if a consumer complaint is received, and subdivisions C 3 and C 4 each add that nothing in them creates or diminishes the Commissioner’s authority under § 3.2-5102, which gives him free access at all reasonable hours to any establishment in which foods are manufactured, processed, packed or held for introduction into commerce, and the power to secure samples after paying for them.

2-5130 makes any violation of the section a Class 1 misdemeanor, which under Va. 2-11(a) carries confinement in jail for up to twelve months and a fine of up to $2,500, either or both. Selling an unlisted product, shipping to a buyer outside Virginia, supplying a retail food establishment or omitting the required label statement all put a home producer back inside the permit-and-inspection requirement of subsection A, and operating without that permit is the same Class 1 misdemeanor. 2-5133 makes failure to obey the notice, or permitting the conditions to continue after it, a Class 1 misdemeanor in its own right. 2-5145, punishable by up to six months in jail and a fine of up to $1,000.