Sandy Boyce and her husband have been making homemade sauerkraut for years by fermenting cabbage purchased from local farmers near their home in Sedona, Arizona. Having long received praise from family and friends for her recipe, Boyce, the director of the nonprofit Verde Valley Community Supported Agriculture, finally decided in 2009 to start selling her specialty at farmers' markets in the area.
Boyce's 'kraut was a hit, sellin out each week — until her county health department promptly asked her to stop. Without testing her product, obtaining a food processing license, and making it all within a certified commercial kitchen, Boyce couldn't distribute her sauerkraut to the public according to state regulations.
Small-time home producers like Boyce have faced similar hurdles across the nation in recent years over restrictions placed on so-called 'cottage foods' — foods made at home and sold to the public. It's a disagreement that pits state and local governments intending to protect public health against those who say it's not the government's job to dictate what they eat.
Back in 2009, when Boyce looked into how much it would cost to produce a season's batch according to all the rules, she came up with an estimate of more than $700 in additional costs.
"When you sell it for $6 a pint, that's a lot of sauerkraut," she recently told Food Safety News. Selling 800 pints that season, she had made roughly $3,400 in profit after production costs.
Instead of throwing in the towel or forking over the dough in fees, Boyce decided to try something else. The following week, she began selling all of her sauerkraut as "for pet consumption," to skirt the health department regulation.
"Even with the pet food label, I sold out every week," Boyce said.
But the pet food maneuver didn't last long, either. After the season ended, she received another stopping order — this time a cease-and-desist letter from the Arizona Department of Agriculture for selling animal feed without a license.
That was enough for Boyce. She decided to stop, though customers continued to ask how to get their hands on more sauerkraut.
Finally, two years after receiving her cease-and-desist letter, Boyce announced on her blog late last month that she planned to start distributing sauerkraut again — this time through $6 donations. Last week, she sold out of her first batch by distributing it through her Community Supported Agriculture program.
But whether Boyce gives it away for $6 or for free, state law still requires she follow all the guidelines, said Brian Supalla, program health manager for Yavapai County, which oversees the Sedona area.
As Arizona law stands, cottage food exemptions apply strictly to baked goods, as they pose no potential microbial threat. Processed fruit and vegetable products — even if fermented to eliminate pathogens, such as with sauerkraut — are off the table.
Farmers who sell products grown and processed on their own land, however, are also exempt from cottage food restrictions in Arizona. If Boyce grew her own cabbage and then used it to make her sauerkraut at home, Supalla said, she would be permitted to sell it farmers' markets.
"I can sympathize with people like Boyce who are small-scale entrepreneurs trying to make some money on the side," Supalla told Food Safety News. "It's difficult to break even when you are not selling large amounts of product."
If Boyce were to follow all the rules for selling her sauerkraut, Supalla said her expenses would likely include $50 for the one-time lab test and $269 for the annual food processor license. Yavapai County subsidizes part of the food processor fee, while other counties in Arizona can charge as much as $590.
But other counties don't have the $137 special events fee that Boyce said she would pay to sell at each farmers' market. Since she sold her sauerkraut at three different markets, that adds up to another $411.
Throw in another $200 estimate for the commercial kitchen time and $200 for a process verification, and annual fees could cut into Boyce's $3,400 profit by as much as a $1,130, or 33 percent.
Boyce says that's too high of a cost for government oversight on a food widely recognized as safe. U.S. Department of Agriculture microbiologist Fred Breidt, Ph.D., said in 2009 that when prepared correctly, fermented vegetables such as sauerkraut were safer than raw vegetables, as the fermentation process kills off any traces pathogenic bacteria that washing might leave behind.
"These regulations are making homemade foods illegal and that's an ethical problem for me and many people. It's a food right problem, as well as an economic problem," Boyce said. "With the economy the way it is, people are looking for more ways to make income. Lots of things grow here, so this makes sense."
Boyce is part of the growing food freedom movement that takes a decidedly anti-corporate stance toward the food industry, supporting issues such as local agriculture and less-restricted raw milk sales alongside cottage food rights.
While around 30 states have adopted cottage food laws in recent years, like Arizona, the vast majority permit only a small range of items, generally limiting home producers to non-refrigerated foods like baked goods and jams. Some also place a maximum ceiling on profits.
In Michigan, for example, home producers can sell breads and other baked goods, jams and jellies, popcorn, dried herbs, cotton candy, dried pasta, vinegars, and assorted chocolate-covered foods such as pretzels or fruit — as long as their gross annual sales don't exceed $15,000. The law also explicitly outlines whole categories of food restricted from sale, including meats, dairy products, canned fruits and vegetables, and — you guessed it — sauerkraut.
But what sort of repercussion might Boyce face for selling her product in the face of government regulation?
"We're not hunting her down or tailing her when she leaves the house," Supalla said. "We're not going out of our way to find issues like this. If we happen to see a product being sold improperly, we try to talk to whoever's selling it — take an educational approach."
Supalla said that a lot of people selling cottage foods aren't even aware of the rules at first, so most issues get resolved with a conversation. In Boyce's case, Supalla said that a health department official observing her selling homemade sauerkraut again would issue her a notice of violation, something she also received back in 2009.
If the notice of violation didn't dissuade her, the health department could consult with the county deputy attorney and county supervisors for guidance on how to handle the situation. The most extreme response could be to ask the Sheriff's office to charge Boyce with a misdemeanor.
"That's not an approach we have ever taken before and would not ever want to," Supalla said, "but it would depend on how far everything went."
Boyce maintained that she did not hold anything against the officials required to uphold the law — in fact, she said she has a cordial relationship with folks at the health department. It's the law, she said, that needs to change.
To Supalla, the bottom line is that the minimum government oversight ensures a higher level of public health and helps officials trace the source of illnesses when outbreaks occur. When working with small-scale entrepreneurs, the health department tries to communicate the minimum legal standards required of them, he said.
But to Boyce, the issue of public health is almost nullified by the direct nature of consumer-producer sales.
"If I go to a farmer's market and get sick from a farmer's food, I know where they live. It's absolutely traceable," she said. "That's not the case when you have factory-produced food. What we're calling food safety and unsafe foods is upside-down. People being able to sell artisan foods, small scale, directly to the consumer — that is the safest food there is because that's where there's the most accountability."
Until more develops, those in northern Arizona looking for illicit sauerkraut can find it through the Verde Valley Community Supported Agriculture for a $6 donation. As she says: All proceeds go to the Sandy Boyce Vacation Fund.
Photo © Comugnero Silvana - Fotolia.com
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