Couple files lawsuit to sell pickled produce at farmers markets

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AUSTIN (KXAN) — The summer season brings a lot of favorite foods and farmers markets are a popular place to buy them.

But one Texas couple is fighting a law that bans them from selling their family recipes at local farmers markets because of a 2013 law that forbids certain homemade foods.

It’s called the Cottage Foods Law.

“What got us off on this trail was the beets,” said Anita Patton-McHaney, who lives on a small farm in Robertson County — north of College Station — with her husband, Jim.

A few years ago, the couple decided to supplement their retirement income by selling pickled produce at farmers markets. When they wanted to package pickled beets, the state’s health department stepped in and stopped their plans.

“According to the rules, pickles were only cucumbers,” said Jim McHaney.

Beets are not covered under the state’s Cottage Foods Law, which allows people to sell a small list of low-risk homemade foods, like cakes, nuts and cucumbers, from their private kitchens.  

Inspectors told the couple that if they wanted to sell items not covered by the law, they would have to get a permit, set up a commercial kitchen and allow the state to inspect it.

“Pickling has been around for thousands of years. It’s a very common food preservation technique, ” said Mr. McHaney, referring to the cost of canning and selling pickled products. “If you’re someone out in a rural area with a smaller garden, it’s insane. It costs over $1,000 to make your first jug of pickled beets and sell it.”

Couple files lawsuit to sell pickled produce at farmers markets

The couple plans to sue the state health department because they say it has not told them why root vegetable, like beets, are unsafe to pickle and sell.

“We eat a hell of a lot more of what we grow than anybody else, and I have no interest in killing myself,” said Mr. McHaney.

“Pickled food can allow for the growth of botulism,” said Chris Johnson, who owns Stellar Gourmet, a one-man business that sells some pickled products, mostly at farmers markets. 

He decided to get his permit, shortly after realizing that his barbecue sauce was not covered under the Cottage Foods Law. He now shows smaller businesses how to get a license.

He told KXAN that the law opens the door for mom and pop businesses to make some money, but, without a food permit and inspection, the risk of sickening customers is too great.

“Why would you want to risk selling something potentially dangerous,” he said. “Don’t try to pretend to be Cottage. Go and get your license.”

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