Add Art 22-A §§265 - 269, amd §§251-z-2 & 500, Ag & Mkts L
Establishes the home kitchen enterprise and economic opportunity act; relates to the licensing and operation of home kitchen operations which store, handle, prepare and package ready-to-eat food for consumers.
STATE OF NEW YORK
________________________________________________________________________
5951
2021-2022 Regular Sessions
IN SENATE
March 23, 2021
___________
Introduced by Sen. HINCHEY -- read twice and ordered printed, and when
printed to be committed to the Committee on Agriculture
AN ACT to amend the agriculture and markets law, in relation to the
licensing of home kitchen operations
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Short title. This act shall be known and may be cited as
2 the "home kitchen enterprise and economic opportunity act".
3 § 2. Legislative intent. Every day, New Yorkers are using their
4 skills, talents and creativity to build home kitchen-based businesses to
5 provide unique, quality food products, increasingly sourced using local
6 ingredients for direct sale to consumers, farmers markets and other
7 retail outlets. By practicing and perfecting their products, many of
8 these craft culinary enterprises have succeeded and grown into thriving
9 and vibrant small businesses, creating jobs and supporting local econo-
10 mies and local farmers. It is the legislature's intent that home kitch-
11 en-based food entrepreneurs should be supported and encouraged in their
12 efforts. Homemade food businesses can create significant economic oppor-
13 tunities for New Yorkers that need them most--including women, immi-
14 grants, and people of color, who have historically faced barriers to
15 labor force participation and entrepreneurship and many of whom have
16 lost employment in the food industry as a result of the COVID-19 pandem-
17 ic. The home kitchen enterprise and economic opportunity act modernizes
18 regulations impacting these enterprises and reduces artificial barriers
19 to business growth, while preserving food safety and public health.
20 § 3. The agriculture and markets law is amended by adding a new arti-
21 cle 22-A to read as follows:
22 ARTICLE 22-A
23 HOME KITCHEN OPERATIONS
24 Section 265. Definitions.
25 266. Licenses; fees.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD10458-01-1
S. 5951 2
1 267. Sales, delivery, disclosure.
2 268. Rules and regulations.
3 269. Inspections.
4 § 265. Definitions. 1. "Home kitchen operation" means an enterprise
5 in a private home that is controlled and operated by a resident that
6 stores, handles, prepares and packages food for consumers and that meets
7 all of the following conditions:
8 (a) all food sold or otherwise provided to consumers by the home
9 kitchen operation is ready-to-eat food; and
10 (b) does not produce: alcoholic beverages; milk or milk products;
11 food items containing raw shellfish; any food that requires a hazard
12 analysis and critical control point plan under applicable federal, state
13 or local law; and any low-acid canned food or acidified food that
14 requires a scheduled process under applicable federal, state or local
15 law.
16 A home kitchen operation does not include a processor of home-pro-
17 cessed food operating under an exemption from licensing pursuant to
18 article twenty-C of this chapter authorized by the commissioner, a food
19 service establishment, temporary food service establishment, caterer, or
20 residential group home facility.
21 2. "Licensed area" means the kitchen of a private home and any other
22 area of the home used for the preparation, packaging, storage, handling
23 or sanitation of food, equipment, and utensils used in the home kitchen
24 operation, including refuse and toilet areas.
25 3. "Ready-to-eat food" means food that is in a form that is edible
26 and safe to eat without washing, cooking or additional preparation by
27 the consumer and that is reasonably expected to be consumed in the form
28 in which it is provided to the consumer or after reheating by the
29 consumer.
30 § 266. Licenses; fees. 1. No person shall maintain or operate a home
31 kitchen operation unless licensed by the commissioner. Application for a
32 license to operate a home kitchen operation shall be made upon a form
33 prescribed by the commissioner. The commissioner may require a licensee
34 to renew the license annually.
35 2. A license, once issued, shall be nontransferable. A license shall
36 be valid only for the person and location specified by such license and,
37 unless suspended or revoked for cause, for the time period indicated.
38 3. The license, or an accurate copy thereof, shall be retained by the
39 operator onsite and made available upon request to a representative of
40 the department.
41 4. The applicant for a home kitchen operation license shall submit to
42 the commissioner written standard operating procedures that include all
43 of the following information:
44 (a) a list of all food types or products that will be handled;
45 (b) proposed procedures and methods of food preparation and handling;
46 (c) procedures, methods, and schedules for cleaning utensils and
47 equipment and for the disposal of refuse;
48 (d) how food will be maintained at safe holding temperatures pending
49 pickup by consumers or during delivery;
50 (e) days and times that the home kitchen may be used as a home kitchen
51 operation. The stated days and times shall be for information purposes
52 and not binding on the licensee.
53 5. The commissioner shall issue a license after an initial inspection
54 has determined that the proposed home kitchen operation and its method
55 of operation comply with the requirements of this article. The initial
56 inspection may be conducted remotely via videoconference technology.
S. 5951 3
1 6. The commissioner shall provide the operator the opportunity to
2 update the food types and products handled without requiring the opera-
3 tor to submit a new license application.
4 7. The commissioner may charge a license fee not to exceed one hundred
5 seventy-five dollars.
6 8. The commissioner may decline to grant a new license, may decline to
7 renew a license, and may suspend or revoke a license already granted
8 after due notice and opportunity for hearing whenever he or she finds
9 that:
10 (a) any statement contained in an application for a license is or was
11 false or misleading;
12 (b) the home kitchen operation does not have facilities or equipment
13 sufficient to maintain adequate sanitation for the activities conducted;
14 (c) the home kitchen operation is not maintained in a clean and sani-
15 tary condition or is not operated in a sanitary manner;
16 (d) the maintenance and operation of the home kitchen operation is
17 such that the food produced therein is or may be adulterated;
18 (e) the home kitchen operation has failed or refused to produce any
19 records or provide any information demanded by the commissioner reason-
20 ably related to the administration and enforcement of this article; or
21 (f) the home kitchen operation has failed to comply with any of the
22 provisions of this article or rules and regulations promulgated pursuant
23 thereto.
24 § 267. Sales, delivery, disclosure. 1. Home kitchen operations may
25 sell or otherwise provide food directly to consumers only and not to any
26 food reseller. Home kitchen operations may not sell or deliver their
27 food to consumers outside New York.
28 2. Home kitchen operations may sell food to consumers in person or
29 remotely by telephone, email or internet website, including through a
30 third-party's internet website or mobile application. Food from a home
31 kitchen operation may be delivered to consumers by the operator, by an
32 employee or agent of the operator, or by a third-party delivery service.
33 3. Home kitchen operations shall provide the following information to
34 the consumer in a clear and conspicuous manner on a label affixed to
35 food that is sold in a package or container, on a sign at the point of
36 sale if the food is not sold in a package or container, and on any
37 webpage or mobile application where the food can be ordered:
38 (a) the name, license number, and telephone number of the home kitchen
39 operation that prepared the food;
40 (b) the common or usual name of the food item;
41 (c) if a food item contains more than one ingredient, a list of its
42 ingredients in descending order of predominance by weight; and
43 (d) the following statement: "Made in a home kitchen."
44 § 268. Rules and regulations. 1. By no later than December thirty-
45 first, two thousand twenty-two, the commissioner shall promulgate rules
46 and regulations to implement this article. Such rules and regulations
47 may include provisions relating to licensing of home kitchen operations,
48 hygiene, sanitation, approved sources of food, training and recordkeep-
49 ing.
50 2. The regulations promulgated pursuant to subdivision one of this
51 section shall include requirements for sanitation in home kitchen oper-
52 ations that shall:
53 (a) apply only to the licensed operations and licensed area of the
54 home;
55 (b) be reasonably necessary to ensure food safety and reasonably
56 feasible for ordinary home kitchen facilities;
S. 5951 4
1 (c) not require home kitchen operations to have or to use facilities
2 or equipment not ordinarily used in private homes; and
3 (d) not prevent or restrict persons who live in the home and their
4 guests from accessing and being present in the licensed area while food
5 for the home kitchen operation is being stored, handled, prepared or
6 packaged, so long as such persons are supervised by the licensed opera-
7 tor and not known to have symptoms of acute gastrointestinal illness or
8 to be infected with a disease that is transmissible through food.
9 3. If food safety training is required, the commissioner shall ensure
10 that the training content and any required examination are available in
11 languages other than English that are commonly spoken by New York resi-
12 dents as their primary language.
13 4. Regulations adopted by the commissioner may require that home
14 kitchen operations comply with retail food store sanitation regulations,
15 provided that home kitchen operations shall be exempt from any require-
16 ments that do not meet the criteria of subdivision two of this section.
17 5. A home kitchen operation shall comply with the rules and regu-
18 lations adopted by the commissioner under this article.
19 § 269. Inspections. 1. After the initial inspection for purposes of
20 determining license eligibility, a home kitchen operation shall be
21 subject to inspections only in the following three circumstances:
22 (a) Not more than once in any twelve-month period, the department may
23 conduct a routine inspection for the purpose of observing the operator
24 engaged in the usual activities of a home kitchen operation, including,
25 but not limited to, active food preparation. The department shall
26 provide notice to an operator before a routine inspection and shall
27 conduct the routine inspection at a mutually agreeable date and time.
28 This paragraph shall not be deemed to require the department to conduct
29 a routine inspection.
30 (b) A for-cause inspection may be conducted when the department has a
31 valid reason, such as a credible consumer complaint, to suspect that
32 adulterated or otherwise unsafe food has been produced by the home
33 kitchen operation or that the home kitchen operation has otherwise been
34 in violation of this article. The department shall provide notice to an
35 operator before conducting a for-cause inspection and shall conduct the
36 inspection at a mutually agreeable date and time.
37 (c) If the department has just cause to believe that the home kitchen
38 operation poses a serious hazard or immediate threat to public health,
39 the department may conduct an emergency inspection that is limited to
40 the facts prompting the inspection. The department shall provide the
41 operator with advance notice of an emergency inspection to the extent
42 that it is reasonable to do so under the circumstances.
43 2. The department may inspect only the licensed area of the home
44 kitchen operation for the purpose of enforcing or administering this
45 article.
46 § 4. Subdivision 3 of section 251-z-2 of the agriculture and markets
47 law, as amended by chapter 507 of the laws of 1973, is amended to read
48 as follows:
49 3. The term "food processing establishment" means any place which
50 receives food or food products for the purpose of processing or other-
51 wise adding to the value of the product for commercial sale. It
52 includes, but is not limited to, bakeries, processing plants, beverage
53 plants and food manufactories. However, the term does not include: those
54 establishments that process and manufacture food or food products that
55 are sold exclusively at retail for consumption on the premises; home
56 kitchen operations licensed by the commissioner under section two
S. 5951 5
1 hundred sixty-six of this chapter; those operations which cut meat and
2 sell such meat at retail on the premises; bottled and bulk water facili-
3 ties; those food processing establishments which are covered by articles
4 four, four-a, five-a, five-b, five-c, five-d, seventeen-b, nineteen,
5 [twenty-b,] and twenty-one of this chapter; service food establishments,
6 including vending machine commissaries, under permit and inspection by
7 the state department of health or by a local health agency which main-
8 tains a program certified and approved by the state commissioner of
9 health; establishments under federal meat, poultry or egg product
10 inspection; or establishments engaged solely in the harvesting, storage,
11 or distribution of one or more raw agricultural commodities which are
12 ordinarily cleaned, prepared, treated or otherwise processed before
13 being marketed to the consuming public.
14 § 5. Subdivision 1 of section 500 of the agriculture and markets law,
15 as amended by section 8 of part I1 of chapter 62 of the laws of 2003, is
16 amended to read as follows:
17 1. Definitions. For the purposes of this section, the following terms
18 shall have the following meanings:
19 (a) "Food service establishment" means any place where food is
20 prepared and intended for individual portion service, and includes the
21 site at which individual portions are provided, whether consumption
22 occurs on or off the premises, or whether or not there is a charge for
23 the food. The term does not include a home kitchen operation licensed
24 by the commissioner under section two hundred sixty-six of this chapter.
25 (b) "Retail food store" means any establishment or section of an
26 establishment where food and food products are offered to the consumer
27 and intended for off-premises consumption. The term does not include
28 home kitchen operations licensed by the commissioner under section two
29 hundred sixty-six of this chapter, establishments which handle only
30 pre-packaged, non-potentially hazardous foods, roadside markets that
31 offer only fresh fruits and fresh vegetables for sale, food service
32 establishments, or food and beverage vending machines.
33 (c) "Zone" means an administratively determined geographic portion of
34 the state to which inspectors are assigned by the department.
35 (d) "Food warehouse" shall mean any food establishment in which food
36 is held for commercial distribution.
37 § 6. This act shall take effect immediately.
