An Act to provide for the direct sale of certain home-produced or home-processed foods and food products.

Be it enacted by the Legislature of the State of South Dakota:

Section 1. That § 34-18-35 be AMENDED:

34-18-35. No Except as otherwise provided in § 34-18-38, the licensure provisions of this chapter do not apply to a person selling non-temperature-controlled baked goods or non-temperature-controlled home-processed canned goods at a farmer's market, roadside stand, or similar venue is required to be licensed pursuant to this chapter. However, any non-temperature-controlled baked goods or non-temperature-controlled home-processed canned goods sold at a farmer's market, roadside stand, or similar venue shall meet the requirements of § 34-18-36, if applicable, and § 34-18-37:

(1) Non-temperature-controlled food prepared at a residence;

(2) Home-processed canned goods;

(3) Baked goods; or

(4) Any food product authorized under § 34-18-36 or section 4 3 of this Act.

Section 2. That chapter 34-18 be amended with a NEW SECTION:

A person selling food or any food product, as authorized in § 34-18-35, shall register with the department and submit an annual fee in the amount of fifteen dollars. The department shall forward any fees collected under this section to the state treasurer for deposit in the general fund.

The department shall promulgate rules in accordance with chapter 1-26, to provide for an annual registration process.

Section 2. That § 34-18-36 be AMENDED:

34-18-36. No canned good may be sold unless the pH level is 4.6 or less or the water activity level is .85 or less.A

Except as otherwise provided in this section, a producer selling canned goods under this section shall, every five years, complete food safety training approved by the department. The training must be available online and may not cost more than one hundred dollars. The producer shall retain records verifying the timely completion of such training.

A producer selling home-processed goods under this section may, in lieu of the requirement for food safety training, maintain verification of each recipe from a third-party processing authority. The third-party processing authority with must have knowledge of the thermal processing required of food in hermetically-sealed containers and shall verify the method of processing and that the pH or water activity threshold levels are met. The processing authority shall provide any such verification in writing to the producer.

Section 3. That chapter 34-18 be amended with a NEW SECTION:

Any producer who verifies compliance with the food safety training requirements set forth in accordance with § 34-18-36, may sell the following:

(1) Any non-heat-processed fermented food, provided the food is consistently maintained at a temperature that is at or below forty-one degrees Fahrenheit;

(2) Kuchen and baked goods that require time and temperature control for safety, including soft pies, cheesecake, and baked goods having a custard or cream filling, and sauces and pesto that require time and temperature control for safety, provided the food is consistently maintained at a temperature that is at or below forty-one degrees Fahrenheit; and

(3) Home-processed frozen fruit and produce, provided the food is consistently maintained at a temperature that is at or below zero degrees Fahrenheit.

Section 4. That § 34-18-37 be AMENDED:

34-18-37. Unless otherwise provided in this section, no baked good or canned good Food prepared at a residence may not be sold unless it has a label that includes the following information:

(1) Name of the product;

(2) Name of the producer;

(3) Physical address of production;

(4) Mailing address of the producer;

(5) Telephone number of the producer;

(6) Date the product was made or processed;

(7) Ingredients; and

(8) In the case of food sold in accordance with section 4 3 of this Act, a directive to keep refrigerated or frozen; and

(9) A disclaimer that states: "This product was not produced in a commercial kitchen. It has been home-processed in a kitchen that may also process common food allergens such as tree nuts, peanuts, eggs, soy, wheat, milk, fish, and crustacean shellfish."

Section 5. That § 34-18-38 be AMENDED:

34-18-38. Any A person selling non-temperature-controlled baked goods food prepared at the person's primary residence is exempt from the licensing and license fee provisions of this chapter if:

(1) The non-temperature-controlled baked goods meet the requirements of § 34-18-37;

(2) The non-temperature-controlled baked goods are sold in the seller's physical presence at:

(a) The seller's primary residence;

(b) A farmer's market;

(c) A roadside stand; or

(d) Other temporary sale venue; and

(3) The seller, or a person residing at the seller's primary residence, personally delivers the non-temperature-controlled baked goods to the buyer at the completion of the sale

(1) The food is sold at the seller's primary residence;

(2) The food is sold at a farmer's market;

(3) The food is sold at a roadside stand;

(4) The food is sold at any other temporary sale venue; or

(5) The food is sold by the producer directly to the buyer;

(6) The food is sold to the buyer and thereafter delivered to the buyer by mail or other delivery service; or

(7) The food is non-temperature controlled, advertised on a website that contains the labeling information required by § 34-18-37, sold online, and delivered to the buyer by mail or other delivery service.