HOUSE BILL 177
55th legislature - STATE OF NEW MEXICO - first session, 2021
Zachary J. Cook and Marian Matthews and Kristina Ortez
RELATING TO FOOD; ENACTING THE HOMEMADE FOOD ACT; PROVIDING DEFINITIONS; ESTABLISHING LABELING AND INFORMATION REQUIREMENTS FOR HOMEMADE FOOD ITEMS; EXEMPTING NON-POTENTIALLY HAZARDOUS HOMEMADE FOOD ITEMS FROM REGULATION PURSUANT TO THE FOOD SERVICE SANITATION ACT OR THE NEW MEXICO FOOD ACT; ESTABLISHING STATE PREEMPTION OF REGULATION OF HOMEMADE FOOD ITEMS.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. A new section of Chapter 25 NMSA 1978 is enacted to read:
"[NEW MATERIAL] SHORT TITLE.--Sections 1 through 5 of this act may be cited as the "Homemade Food Act"."
SECTION 2. A new section of Chapter 25 NMSA 1978 is enacted to read:
"[NEW MATERIAL] DEFINITIONS.--As used in the Homemade Food Act:
A. "board" means the environmental improvement board;
B. "department" means the department of environment;
C. "homemade food item" means a food item or non-alcoholic beverage that is produced at the private farm, ranch or residence of a processor, including homemade food items that are packaged at the processor's private farm, ranch or residence;
D. "label" means a display of written, printed or graphic matter upon the immediate container of any article;
E. "non-potentially hazardous" means a food item that does not require time-temperature control for safety to limit pathogenic microorganism growth or toxin formation and includes baked goods without cream, custard, cheese or meat fillings; candies and confections; cereals, grains and granola; coffee that has been roasted; dried or dehydrated produce; dry herbs, pasta, seasonings, soup mixes and tea; fruit pies, empanadas and tamales; fudge; jams, jellies and preserves; nuts and nut mixes; pickled produce; popcorn; uncut fruits and vegetables; vinegars; and other items determined by the board by rule;
F. "person" includes an individual, partnership, corporation and association;
G. "processor" means a person who produces a homemade food item;
H. "secretary" means the secretary of environment or the secretary's authorized representative;
I. "seller" means a person who sells a homemade food or non-potentially hazardous food item to a consumer. A seller may be a processor of an item, an agent of a processor or a third-party vendor such as a retail or grocery store; and
J. "to produce" means to prepare a food item by baking, cooking, cutting, dehydrating, drying, fermenting, growing, mixing, preserving, raising or other process designated by the board by rule."
SECTION 3. A new section of Chapter 25 NMSA 1978 is enacted to read:
"[NEW MATERIAL] HOMEMADE FOOD ITEMS--LICENSING, PERMITTING, INSPECTION AND LABELING EXEMPTIONS--REQUIREMENTS.--
A. The production and sale of homemade food items shall be regulated pursuant to the provisions of the Homemade Food Act and are exempt from other requirements pursuant to the Food Service Sanitation Act and the New Mexico Food Act; provided that:
(1) the food items are non-potentially hazardous; and
(2) the seller labels or otherwise provides information to the consumer pursuant to the requirements of Subsections B and C of this section.
B. A seller shall provide to the consumer the information required by Subsection C of this section in the following manner:
(1) on a label affixed to a package of a homemade food item when the package is the unit of sale;
(2) on a label affixed to a container when the homemade food item is offered for sale from a bulk container;
(3) on a placard displayed at the point of sale when the homemade food item is neither packaged nor offered for sale from a bulk container;
(4) on a webpage on which the homemade food item is offered for sale; and
(5) when a homemade food item is sold by telephone or custom order, a label is not required for the homemade food item; however, the seller shall disclose to the consumer that the homemade food item is produced at a private residence that is exempt from state licensing and inspection and may contain allergens.
C. A seller shall provide the following information about the seller's homemade food items to the consumer:
(1) the name, home address, telephone number and email address of the processor of the homemade food item or, if the processor chooses, an identification number provided to the processor by the department pursuant to Subsection E of this section;
(2) the common or usual name of the homemade food item;
(3) the ingredients of the homemade food item in descending order of predominance; and
(4) the following statement: "This product was produced at a private residence that is exempt from state licensing and inspection. This product may contain allergens.".
D. A seller shall have the information required by Subsection C of this section readily available and shall provide it to a consumer upon request.
E. Upon request, the department shall provide a unique identification number to a homemade food processor; provided that the processor submits to the department the seller's contact information including the seller's name, address, telephone number and email address."
SECTION 4. A new section of Chapter 25 NMSA 1978 is enacted to read:
"[NEW MATERIAL] INTERPRETATION OF ACT--INVESTIGATIONS--CONSULTATIONS.--No provision of the Homemade Food Act shall be construed so as to:
A. impede the department in an investigation of a reported food-borne illness;
B. preclude the department from providing assistance, consultation or inspection at the request of the processor of a homemade food item;
C. preclude the production or sale of food items otherwise allowed by law;
D. change the regulation of other goods and services where homemade food items are also produced or sold; or
E. exempt sellers from applicable business registration or tax law."
SECTION 5. A new section of Chapter 25 NMSA 1978 is enacted to read:
"[NEW MATERIAL] STATE PREEMPTION.--A political subdivision of the state, including a home rule municipality, or an institution of the state shall not adopt a law, policy or resolution that regulates or attempts to regulate the production or sale of homemade food items."
SECTION 6. A new section of the Food Service Sanitation Act is enacted to read:
"[NEW MATERIAL] HOMEMADE FOOD ITEMS--EXEMPTION.--Other than enforcement actions pursuant to Section 25-1-10 NMSA 1978, the provisions of the Food Service Sanitation Act shall not apply to food items produced or sold pursuant to the Homemade Food Act."
SECTION 7. A new section of the New Mexico Food Act is enacted to read:
"[NEW MATERIAL] HOMEMADE FOOD ITEMS--EXEMPTION.--Other than actions pursuant to Section 25-2-6 NMSA 1978, the provisions of the New Mexico Food Act shall not apply to homemade food items produced or sold pursuant to the Homemade Food Act."
SECTION 8. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2021.
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