21.557.13 96th Legislative Session 537
Introduced by: Representative Wiese
An Act to establish criteria governing the sale of homemade food items.
Be it enacted by the Legislature of the State of South Dakota:
Section 1. That a NEW SECTION be added:
7-18A-38. Homemade food item--Ordinance limitation.
A board of county commissioners may not pass an ordinance that restricts, prohibits, or imposes any licensure requirement or licensure fee on the sale of any homemade food item, as defined in § 34-18-1.
Section 2. That a NEW SECTION be added:
8-5-15. Homemade food item--Ordinance limitation.
A township board of supervisors may not pass an ordinance that restricts, prohibits, or imposes any licensure requirement or licensure fee on the sale of any homemade food item, as defined in § 34-18-1.
Section 3. That a NEW SECTION be added:
9-19-22. Homemade food item--Ordinance limitation.
The governing board of a municipality may not pass an ordinance that restricts, prohibits, or imposes any licensure requirement or licensure fee on the sale of any homemade food item, as defined in § 34-18-1.
Section 4. That § 34-18-1 be AMENDED.
Terms used in this chapter mean:
(1) "Campground," a plot of ground for public use upon which two or more campsites are located, established, maintained, advertised, or held out to the public to be a place where camping units can be located and occupied as temporary living quarters for children or adults, or both. Camping units are considered to be trailers, tent campers, campers, tents, recreational park trailers, or other equipment that may be used by the public at individual campsites located at campgrounds or areas used by the public as campgrounds;
(2) "County fair," any fair or celebration operated by any county of this state and under the supervision of a county fair board, county fair association, or the county board of commissioners;
(3) "Department," the Department of Health;
(4) "Food," any raw, cooked, or processed edible substance, beverage, or ingredient used or intended for use or for sale in whole or in part for human consumption;
(5) "Food service establishment," any fixed restaurant; coffee shop; cafeteria; short-order café; luncheonette; grill; tearoom; sandwich shop; soda fountain; tavern; bar; cocktail lounge; night club; roadside stand; catering kitchen; delicatessen; bakery; grocery store; boardinghouse; or similar place in which food or drink is prepared for sale or for service to the public on the premises or elsewhere with or without charge;
(6) "Homemade food item," any food, including a nonalcoholic beverage, that is produced and, if applicable, packaged at the residence of the producer;
(7) "Hotel," any hotel, motel, lodge, resort, cabins, building, or buildings with more than ten rental units which is used to provide sleeping accommodations for a charge to the public;
establishment," any building or other structure and property or
premises kept, used, maintained, advertised or held out to the public
to be a place where sleeping accommodations are furnished for pay to
two or more transient guests. The term includes hotels, motels,
cabins, bed and breakfast establishments, lodges, vacation home
establishments, dude ranches, and resorts; (8)(9) "Mobile
food service establishment," any mobile unit in which food or
drink is prepared for sale or for service to the public with or
without charge; (9)(10)
organization," any governmental organization, church, fraternal,
social, school, youth, or other similar organization that is
organized and operated for a common good and not for the specific
monetary gain of any person or persons;
(11) "Nontemperature-controlled item," a homemade food item that does not, for purposes of safety, require a time or temperature control process to limit pathogenic microorganism growth or toxin formation;
the operator, agent, proprietor, manager, or licensee whether it be a
person, firm, corporation, limited liability company, or association;
(13) "Produce," to prepare a homemade food item by baking, canning, cooking, cutting, dehydrating, drying, fermenting, growing, mixing, preserving, raising, or other similar action;
unit," any room, cabin, or other quarters that may be rented to
a guest for sleeping accommodations; (12)(15) "Secretary,"
the secretary of the Department of Health; (13)(16) "Specialty
resort," any bed and breakfast establishment, lodge, dude ranch,
resort, building, or buildings used to provide accommodations or
recreation for a charge to the public, with no more than ten rental
units for up to an average of twenty guests per night and in which
meals are provided to only the guests staying at the specialty
resort; (14)(17) "State
Fair," the fair at Huron, South Dakota, operated by the
Department of Agriculture;
(18) "Temperature-controlled item," a homemade food item that does, for purposes of safety, require a time or temperature control process to limit pathogenic microorganism growth or toxin formation;
food service establishment," any food service establishment
which operates at a fixed location for a temporary period of time,
not to exceed two weeks, in connection with a fair, carnival, circus,
public exhibition, or similar transitory gathering; (16)(20) "Transient
guest," any person who resides in a lodging establishment less
than four consecutive calendar weeks; (17)(21) "Vacation
home establishment," any home, cabin, or similar building that
is rented, leased, or furnished in its entirety to the public on a
daily or weekly basis for more than fourteen days in a calendar year
and is not occupied by an owner or manager during the time of rental.
This term does not include a bed and breakfast establishment as
defined in subdivision 34-18-9.1(1); (18)(22) "Water
recreational facility," any artificial basin of water located at
a facility licensed pursuant to chapter 34-18
constructed, installed, modified, or improved for the purpose of
swimming, wading, diving, or recreation, including swimming pools,
spas, hot tubs, and water slides.
Section 5. That § 34-18-34 be AMENDED.
34-18-34. Farmer's market fresh fruits and vegetables--Licensure exemption.
No person selling whole
fresh fruits or vegetables at a farmer's market, roadside stand, or
similar venue is required to be licensed pursuant to this chapter.
Section 6. That § 34-18-36 be AMENDED.
34-18-36. Canned good requirements--Verification.
No canned good may be sold unless
the pH level is 4.6 or less or the water activity level is .85 or
A third-party processing authority with knowledge of the thermal
processing required of food in hermetically-sealed containers 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.
Section 7. That § 34-18-37 be AMENDED.
34-18-37. Homemade food item--Label--Content.
otherwise provided in this section, no baked good A
homemade food item or
canned good may not
be sold unless
it has a label that
includes the following information:
the name of the
the name of the
the physical address
the mailing address
of the producer;
the telephone number
of the producer;
the date the
product was made or processed;
disclaimer that statesIncludes
the following disclaimers:
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
that is regulated or inspected."; and
(b) "This food may contain allergens."
Section 8. That § 34-18-38 be AMENDED.
34-18-38. Homemade food items--Exemption from licensure--Conditions.
Any person selling
baked goods at the person's primary residence
food items is
exempt from the licensing and license fee provisions of this chapter,
the following conditions are met, where applicable:
baked goods homemade
food items meet
the requirements of § 34-18-37;
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 saleAny
homemade food items that are nontemperature-controlled are sold and
delivered to the purchaser by:
(a) The producer, either in person or remotely, including by telephone or internet;
(b) An agent of the producer; or
(c) A third-party vendor, including a retail or grocery store;
(3) Any homemade food items that are temperature-controlled are:
(a) Sold to the purchaser by the producer, either in person or remotely, including by telephone or internet; and
(b) Delivered to the purchaser in person;
(4) The homemade food item is not a meat food product, as that term is defined in the Federal Meat Inspection Act, 21 U.S.C § 601, as of January 1, 2021, unless it is exempted in accordance with 9 C.F.R. § 303.1;
(5) The homemade food item is not a poultry product, as that term is defined in the Poultry Products Inspection Act, 21 U.S.C § 453, as of January 1, 2021, unless it is exempted in accordance with 9 C.F.R. § 381.10(c) or (d); and
(6) The person's annual gross revenue from selling homemade food items does not exceed one hundred fifty thousand dollars.
Section 9. That a NEW SECTION be added:
34-18-39. Homemade food items--Retailer--Required signage.
A retailer selling homemade food items shall display a sign informing the end consumer that the homemade food items have not been inspected.
Section 10. That § 34-46-17 be AMENDED.
34-46-17. Posted smoking rooms permitted in hotels and lodging establishments.
The provisions of §§ 34-46-13
inclusive, do not apply to any sleeping rooms in any hotel or lodging
establishment licensed pursuant to
or (9), respectively
if the rooms are rented to guests. Any sleeping room in which smoking
is allowed shall be posted as a smoking room.
Section 11. That § 34-18-35 be REPEALED.
34-18-35. Farmer's market baked and canned goods--Licensure exemption.
Catchlines are not law. (§ 2-16-13.1) Underscores indicate new language.
indicate deleted language.