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South Dakota Cottage Food Laws and Regulations: How to sell your homemade foods in South Dakota
South Dakota Cottage Food Laws, Regulations and Facts
Date of the enactment of the South Dakota cottage food law: 2010: Home
Processed Foods, South Dakota Codified Law 34 18 to 37. In 2011, the law was expanded with a new section to allow the sale of
This SD law allows home-based food operations that operates out of
an individual's home to prepare, package, store and distribute
non-potentially hazardous foods (fresh fruits and vegetables, Some
dried herbs, fruits and vegetables; non-refrigerated baked
goods and and certain canned goods)
directly to consumers for sale. In a nutshell, under the SD home processing cottage food law, you can sell baked goods and canned goods at venues
such as road side stands, Farmer's Markets and church bazaars.
Which foods are subject to the South Dakota Cottage Food law?
Non-temperature controlled baked goods, acid and acidified canned
goods, and fresh fruits and vegetables; and Dried herbs, dried
fruits and some dried vegetables are allowed for sale. These
are the only items allowed to be sold; no other products are
allowed to be sold
Fresh fruits and Vegetables
Dried herbs and fruits (and some dried vegetables)
Dried foods do not require approval from a third party processor.
Only non-temperature controlled baked goods such as bread, cake,
and cookies are also allowed to be sold at Farmer's Markets.
Non-temperature controlled baked goods do not need to be reviewed in
order to be sold. See
South Dakota Requirements for the Sale of Baked Goods Made within
- baked cookies,
- baked cakes,
- baked breads*,
- baked high-acid fruit pies (apple, apricot, grape, peach,
plum, quince, orange, nectarine, blackberry, raspberry,
boysenberry, cherry, cranberry, strawberry, red currants) and
- Only acid or acidified canned goods are allowed to be sold.
This means things like applesauce, apple butter, pickles, etc.
- These products will have either a natural pH of 4.6 or lower
or will be acidified to have a pH of 4.6 or lower.
- These products must be reviewed by a third party
processing authority and tested for either pH to be
below 4.6 or water activity to be below 0.85. SDSU Extension has
an individual that is a certified processing authority for
acidified and acid foods. Therefore, processors can have their
food reviewed and approved by SDSU Extension. SDSU Extension
will also provide the written verification notice which is
necessary to sell canned products at Farmer's Markets.
Additionally, SDSU Extension is able to provide an ingredient
declaration and nutrition facts panel based off of the recipe
provided by the processor.
Ultimately, it is the
responsibility of the processor to ensure the accuracy of the
label, but SDSU Extension can provide this using Genesis R&D
Labeling software. The cost is $85 per product.
- For more information, see South
Dakota Requirements for the Sale of Home: Canned Processed Foods
at Farmers Markets.
Examples of potentially hazardous baked goods include, but are
not limited to the following:
- cheese cake,
- custard pies,
- cream pies,
- pastries with potentially hazardous toppings or fillings.
- animal foods that are raw or heat-treated (i.e.,
- Fresh or dried meats or poultry (jerky)
- Fish or shellfish
- Refrigerated baked goods
- Vacuum sealed products
- Tempered and/or molded chocolate (fudge)
- Milk and dairy foods (yogurt, cheese, milk)
- Ice/ice products
- Home-canned, low-acid foods like peas, green beans, beets,
corn, carrots, squash or soups (that are not acidified
- Whole eggs in the shell,
- dairy or meat products such as smoked fish, butter, raw
milk, or jerky-these products fall under regulatory jurisdiction
of the South Dakota Department of Agriculture, FDA and or USDA
(dependent upon the food that is being marketed).
- Home-processed apple cider and other fruit juices (all
juices must meet FDA requirements)
- Foods that require refrigeration (such as fresh salsa and
pesto) and many food products containing milk or eggs (such as
kuchen, pumpkin pie, flan)
- Garlic and oil mixtures or flavored oils
- Vegetables packed and frozen for preservation (Some
exceptions apply. See FAQ sheet.)
- Refrigerator pickles
If your food product does not meet the definition of a Cottage
Don't give up. You may still be able to make and sell it commercially,
through a startup approach.
First, you may be able to rent space in a local licensed commercial kitchen.
Second, if that doesn't work, you may be able to get a co-packer to make the food for you.
See this page for detailed information about selling foods that do
not meet the Cottage Food definition
- An acid food is a food that has a natural
pH of 4.6 or below.
- An acidified food (pickled/fermented) is a
low-acid food to which acid(s) or acid food(s) are added and
which has a finished equilibrium pH less than 4.6 or below and a
water activity greater than 0.85.
- Equilibrium pH is the final pH of a food product after the acidulant (food acid) reaches equilibrium (i.e., has the same pH
value) with the food itself. For example, fresh cucumbers in vinegar will not have the same pH as the vinegar until equilibrium has been
obtained. Acidified foods that are 2 months past the processing date will have reached equilibrium, and the brine should have the same pH as the
primary food ingredients.
- Hermetically sealed container is a container that is designed and intended to be secure against the entry of microorganisms
and to maintain the commercial sterility of its contents after processing and does not allow the flow of oxygen or other gases into the product.
For home-processing purposes, a hermetically sealed container will consist of a two-piece lid and glass jar.
- "Home-based food production operation"
means an individual, operating out of the individual's dwelling,
who prepares, processes, packages, stores, and distributes
nonpotentially hazardous foods for sale directly to a person.
- Low-acid food is any food (other than
alcoholic beverages) with a finished equilibrium pH greater than
4.6, excluding tomatoes and tomato products having a finished
equilibrium pH less than 4.7.
- "Nonpotentially hazardous foods" are candy
and baked goods that are not potentially hazardous foods.
- "Person" means an individual
- pH - measures the amount of acidity or alkalinity, using a numerical scale between 0 and 14. A pH value of 1 is most
acidic, while a pH value of 14 is most basic or alkaline.
- Thermal processing is the application of heat to a food, either before or after sealing in a hermetically sealed container,
for a period of time and at a temperature scientifically determined to achieve a condition of commercial sterility (i.e. the destruction of
microorganisms of public health significance as well as those capable of reproducing in the food under normal non-refrigerated conditions).
- Water activity is a measure of the free moisture in a product. This moisture is available for microbial growth. Water
activity values range from 0 to 1 (0 is considered bone-dry and 1 is pure water).
Verification and Testing
You food product and process must be tested. See SL 2010, ch 172, § 3.
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 less. 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.
SDSU Extension has a service to do this (there are other companies that do it). SDSU charges (in 2020) $85 per product and will include the
- water activity
- Genesis created label for Nutrition Facts Panel and Ingredient Declaration
- Third-party processing authority and a review of your processing method and
- then they send you the letter of verification
Some acid foods require a pH test and some may require a pH test. Acidified foods will require equilibrium pH testing and a microbial analysis. In
some instances a water activity test may have to be conducted.
Submitting product samples for testing:
If you use the SDSU processing authority, they will need 2 samples of your product. The first sample will be analyzed by for either pH or water
activity. The second sample will be analyzed for processing and packaging characteristics such as head space, lid/mouth jar cleanliness, air
bubbles, mold/bacterial growth, and vacuum seal integrity. Additionally, the SDSU processing authority will require that a product safety evaluation
form be filled out and returned which will include the recipe and processing/packaging parameters.
Cottage Food Production Operations must label all of their food products properly,
in compliance with federal laws and regulations (mostly, Federal
Food, Drug and Cosmetic Act (FD&C) (Section 403 - Misbranded Food)
and The Fair Packaging and Labeling Act (FPLA). Labels must
- Name and address of the home-based food operation, including
Contact Information (Address and Phone Number)
- Name of the product being sold
- Complete ingredient list (including all allergens) - You must list ingredients in the product from the largest to the smallest in net
weight or volume. The actual weight or volume of each ingredient does not need to be listed.
- A net wt. in customary and metric measurements
- Nutrient panel (unless exempt through Title 21 of the Code
of Federal Regulations (21 CFR) 101.9(j)(1) and 21 CFR
- A conspicuous statement printed in all capital letters and
in a color that provides a clear contrast to the background that
"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
- Note: You cannot put anything related to SDSU (South Dakota State University) on your label. Also, a statement regarding tested for safety
is NOT allowed. SDSU (and other processing authorities) only verify your process for safety. They do not deem
that a specific food is safe since SDSU (or other processing authorities) do not have daily control over the food produced in your kitchen (home
For more help with labeling, please see this page.
The FDA has a labeling course summary page FDA Labeling Course
that goes into detail around requirements for each required section
of the food label. This site can be used as guidance to help the
food entrepreneur understand the general requirements needed for an
FDA compliant label. SDSU Extension is also available to answer
questions regarding labeling.
Where may Cottage Food Production Operations sell the food products?
In South Dakota, home food processors can sell baked goods
and canned goods at venues such as:
- road side stands,
- Farmer's Markets, and
- church bazaars.
- community food festivals
Retail Sales that are not allowed under the Cottage Food Law
Food products produced at home as allowed by this legislation
are NOT allowed to be sold in establishments such as retail
and grocery stores, restaurants, bed and breakfasts, wholesalers, or
directly out of the home.
Any product that is sold wholesale or
interstate will fall under Food and Drug Administration (FDA)
jurisdiction. Wholesaling is the sale and distribution of goods to
specific customer types such as those most commonly referred to as
resellers. Resellers are traditionally retailers, other wholesalers
or merchants who will resell the good to an end user.
If a product is sold at retail directly to the
end user and is also sold within South Dakota, it falls under the
South Dakota Department of Health's Jurisdiction 34-18-34 to
34-18-38. Retail differs from wholesale in that retail stores
typically charge a slotting fee for shelf space. The processor will
typically pay a slotting fee to sell their merchandise at a retailer
and thus directly sells to the end user. Note that home processors
who sell directly to the end user at retail stores fall under the
Department of Health's jurisdiction; which has additional
If a home processor may not sell directly to a retail store,
unless they ensure that they are processing in a commercial kitchen.
There are requirements set forward in South Dakota Codified Law
44:02:07. Kitchens that are certified, must be registered with the
department of health and must comply with the SD Dept of Health and
Federal laws. Again, the home processor that sells to retail, must
ensure that all food products that are sold at retail are
processed in a commercial licensed kitchen.
- Direct sales to consumers only: These
foods cannot be sold for re-sale/wholesale and must be within
- Verification letter: The individual selling
home-processed (canned) foods under this exemption must have a
letter of verification from the third-party processing authority
approving the method of processing and documentation that the pH
and/or water activity standards are met. A copy of the letter of
verification for all products must be at each location where
products are sold.
- The letter of verification must include the
- Name of the food processor
- Food item as it
appears on the jar label
- Size of the food container
- Approval of the thermal processing method
- Results of
microbial analysis (if conducted)
- Date tests were completed
- Date letter of verification is issued
- Signature and contact
information of the food processing authority
- Annual limits: You may sell no more than
$5,000 per year.
- Additional lab testing: Certain products,
those that fall outside the defined allowed foods, may
require lab analysis.
Selling retail or opening a shop?
When a processor chooses to sell directly to a retail store, they must ensure that they are processing out of a
commercial kitchen. There are requirements set forward in South Dakota Codified Law 44:02:07.
Kitchens that are certified, must be registered with the department of health and must comply with the aforementioned laws. The home processor that
sells to retail, must ensure that all food products that are sold at retail are processed out of the commercial kitchen. You can rent some
commercial kitchens and make your food under their license for a fee.
Want to start an ice cream business or something similar? See this page for fixed shops, food
businesses, food trucks, peddle carts, etc.
Beyond the requirements, common sense, good practices and
reducing liability suggests you should do the following.
ServSafe® training classes for Manager and employees, the 7th Edition Book that accompanies this course should be purchased here..
Testing of pH
It's best to use a pH meter, properly calibrated on the day
used. I use this one, which is reliable and inexpensive.
And this pH meter is really good, but isn't always available.
pH test strips, commonly known as litmus paper, may be used
instead, if the product normally has a pH of 4.0 or lower and the
paper's range includes a pH of 4.6.
Record-keeping is suggested
Keep a written record of every batch of product made for sale,
- Recipe, including procedures and ingredients
- Amount canned and sold
- Canning date
- Sale dates and locations
- Gross sales receipts
- Results of any pH test
Although inspections are not required, you should consider doing
- Use clean equipment that has been effectively sanitized
prior to use
- Clean work surfaces and then sanitize with bleach water
before and after use
- Keep ingredients separate from other unprocessed foods
- Keep household pets out of the work area
- Keep walls and floors clean
- Have adequate lighting
- Keep window and door screens in good repair to keep insects
- Wash hands frequently while working
- Consider annual testing of water if using a private well
- Allergens: Most state home baking
acts require an "ingredient statement" and/or an "allergen
listing" on the label of the bakery item for sale; but if your
state does not, you should anyway. The eight major food
- crustacean shellfish,
- tree nuts,
- wheat and
- Cross-allergenicity: There are also
ingredients available, even flours, that can cause a
cross-allergenicity. The American Academy of Allergy Asthma &
Immunology explains cross-allergenicity as an allergic reaction
when proteins in one substance are similar to the proteins found
in another substance. For example, consumption of lupine flour
may trigger an allergic reaction to peanuts, and cricket flour
may trigger an allergic reaction to shellfish. Again, providing
such information might be a beneficial marketing tool and help
keep potential consumers safe.
- The 2 Hour/4 Hour Rule - Anyone
wishing to make and sell refrigerated bakery items should
remember to follow the "2 Hour/4 Hour Rule." This is a system
that can be implemented when potentially hazardous foods are out
of temperature control (temperatures greater than 45 degrees
Fahrenheit) during preparation, serving or display for sale. The
rule guidelines are as follows:
- If a potentially hazardous food has been out of
temperature control for 2 hours or less, then it may
continue to be used or be placed back in the refrigerator.
- If a potentially hazardous food has been out of
temperature control for more than 2 hours but less than 4
hours, it needs to be used quickly or discarded.
- If a potentially hazardous food has been out of
temperature control for more than 4 hours, it must be
SDSU Extension offers:
- staff who can be an information resource to provide
data regarding food safety considerations on the product and
- testing your product for pH and water activity.
- review your label to check if it is meets the FDA Labeling
requirements as outlined in the FDA Labeling Course.
- an ingredient declaration and nutrition facts panel based
off of the recipe provided by you, the processor.
- Of course, it is your responsibility to ensure the accuracy
of the label, but SDSU Extension can provide assistance using
Genesis R&D Labeling software. The cost is $150 per product.
Interstate or Wholesale Commerce
South Dakota statutory requirements for the sale of baked goods
and home-canned processed foods can be found in these SDSU Extension
Questions? Contact Information:
For more information, contact
- Curtis Braun, MBA
SDSU Extension Food Safety Field
SDSU Extension Sioux Falls Regional Center
E. Eighth St.
Sioux Falls, SD 57103