Drew was managing operations at the Oil Barn in Big Sandy a few years ago. His work was rewarding, but for a mid-20s, ultimate frisbee playing lad, the speed of rural life was a mismatch. When Drew relocated to Bozeman, he stumbled upon a love of bread making at a job at the Bozeman Community Co-op. He met his business partner India, who had complementary skills, and they opened Together Bakery. Together Bakery is now a thriving small-scale bakery producing 100% Montana-grown, ancient, whole grain sourdough bread and bagels. They sell at farmer’s markets and via a subscription model.

Drew and India’s path to launching a business is an example made possible by exemptions to Montana’s standard food licensing laws. Nearly all food in the United States is regulated for safety by state and/or federal entities, which was important during the rise of the industrial food system for sanitation and production hazards. Food safety regulations have evolved, and most Americans’ food today is processed in facilities that may have highly complex manufacturing. Strict standards in the early 2000s controlled food safety risk in large production facilities but were incompatible with small food producers. This marked the start of cottage food exemptions, allowing entrepreneurs to produce non-hazardous food items in home kitchens and sell directly to consumers. Nearly all states in the U.S. now have a cottage food-type law.

Food freedom laws were introduced in the early 2020s, spurred by the growth of home-based food entrepreneurs in response to COVID-19. These laws are an extension of the relaxation of food regulatory laws, allowing small, home-based producers to make additional food items and access more customers. This was the intention of Montana’s 2021 Local Food Choice Act (LFCA, aka SB199). The bill states ‘the purpose of this act is to allow for the sale and consumption of homemade food and food products and to encourage the expansion of agricultural sales by ranches, farms, and home-based producers and the accessibility of homemade food and food products to informed end consumers by: (a) facilitating the purchase and consumption of fresh and local agricultural products; (b) enhancing the agricultural economy; and (c) providing Montana citizens with unimpeded access to healthy food from known sources.’

The LFCA had a few legislative negotiations to pass. The LFCA became the means of sale for unpasteurized (raw) milk, which has been a years-long focus of a group of Montana producers. It also became apparent that the inclusion of meat would cause issues with federal funding for meat inspection. The resulting compromise limited LFCA exemptions to non-meat products (except poultry processed under the 1000-Bird Exemption, a USDA/MT Department of Livestock exemption).

To qualify under the LFCA exemptions, items:

  • can include raw milk
  • cannot include meat except for the small poultry exemption
  • must be made in a home kitchen (not in a commercial or licensed food establishment)
  • must be sold directly to consumers who have been informed that the products ‘have not been licensed, permitted, certified, packaged, labeled, or inspected under any official regulations.’
  • cannot be sold wholesale (sold to another business that sells it to the sonsumer)
  • can only be sold within the state of Montana
  • can be sold at farmer's markets and other community evets as long as the host of the event deems these items permissible

  • Some items are not granted an exclusion based on other legal jurisdictions. These items include anything containing alcohol, cannabis, or anything sold as a dietary supplement. Items considered high risk (for example, shelf-stable canned food) aren’t granted an exemption under the LFCA.

Table with neatly wrapped loaves of bread, placed in rows.

Photo: Adobe Stock

It is important for producers and consumers to understand the implications of operating outside the established food regulatory structure. 

Navigating the food regulatory system can be challenging, but it mandates a process that effectively identifies and controls risk. The requirements for a licensed, inspected kitchen space – water/septic inspection, non-porous surfaces standards, dedicated handwashing sinks – all help minimize potential food safety risks. The review process required to license a food product identifies and controls production steps that could cause illness. Becoming licensed helps producers identify the aspects of their operation that could be problematic if not controlled correctly.

Producers should understand the limitations of the exemptions and any potential liability. The LFCA provides no exemption from the consequences of creating a product that makes someone ill. LFCA items are not exempt from inspection for a foodborne illness outbreak by the Department of Public Health and Human Services, and there is no legal protection in the case of a civil lawsuit for damages caused by selling an unsafe product.

Producers should understand food safety best practices and ensure their production facility and process meet sanitation standards. Food producers should structure their business to protect personal assets, understand current insurance limitations and, as applicable, investigate options for product insurance. The LFCA takes some responsibility for ensuring a safe product from the regulators and shifts the responsibility to the producer.

LFCA has the potential to create opportunities for agricultural producers, grow thriving markets of customers, and expand opportunities for neighbors feeding neighbors. Together Bakery is a success story, attributable in part to this law. The LFCA provided an easier access point for them to sell additional items such as focaccia, spreads, and butters. In this and other cases, this bill has achieved the intended purpose of expanding sales and enhancing the agricultural economy.

 

Sam Blomquist is the Director of the Food and Agriculture Development Center at Prospera.