Microgreen Manager

What’s Legally Required to Sell Microgreens from Home? Cottage Food Laws, Food Safety, Inspections, & More

Oct 11th, 2024

Introduction

One of the biggest draws to growing microgreens is that you can start growing right away at home. You don’t need a big indoor farm facility or acres of land. Growing microgreens, even without prior farming experience, can also be quite straightforward. Yes, some varieties are harder than others. However, most people can grow their first trays of broccoli and pea microgreens in no time. Unfortunately, many people, myself included when I started, worry about the legal issues of selling home-grown microgreens. Do you need a license? What about inspections and food safety? This article will cover what is involved in selling microgreens from your home. While I'll focus on federal regulations, state and local laws may supersede them. The second half of the article provides resources for determining if this is the case.

Too Long, Didn’t Read

Here’s the short summary, if you don’t want to dive into the details yet. As a microgreen grower, you’re a farmer. Farmers are not treated the same as home-based food businesses, such as a home bakery. Therefore, your operation doesn’t fall under Cottage Food Laws. If you grow microgreens for personal consumption, you can ignore all concerns about legal requirements. If you grow for profit, but your average sales for the past three years are under $25,000, you can ignore the food safety regulations as well. However, you should still look into the need for a business license. If you’ve sold an average of $25,000 to $500,000 of microgreens over the past three years, and a majority were sold to a qualified end-user, your farm is "qualified exempt" from the Produce Safety Rule. If your farm is "qualified exempt," you must list your business name and full business address on the label. You’re also required to maintain certain records about the cleanliness of your operation. It's rare, but your state or local government could have laws that supersede the FDA's Produce Safety Rule. Check with your local government to ensure you're compliant.

Cottage House Laws

When you ask about the laws governing a home-based microgreen business, other well-meaning respondents will cite the Cottage Food Laws. Cottage Food Laws let individuals make and sell, with limited oversight, certain foods from their home kitchen. These laws aim to support small-scale food entrepreneurs by reducing barriers to entry into the food industry. Cottage Food Laws focus on home-based bakeries and baked goods because they are low-risk foods. The list of permissible products becomes more ambiguous as you venture away from meatless baked goods. States prohibit the home-based production of foods that could be hazardous or require temperature control (TCS). For example, dairy products, raw or cooked meats, cooked rice or pasta, and cut fruits and vegetables, such as salads. Based on this description, it sounds like home microgreen production would be covered by the Cottage Food Laws. Cut vegetables sound a lot like cut microgreens. Right? It’s an easy trap to fall into because most beginners start by growing microgreens in their living room, basement, garage, or spare bedroom. When you start your farm this way, which is what I did, it feels like home microgreen production should be talked about in the same regard as a home bakery. Both take place in the home. Both happen inside. Both are food-based. The mistake is forgetting that microgreens are considered a “raw agricultural product” (RAP) or “raw agricultural commodity” (RAC). What are some other RAPs? Tomatoes, potatoes, beets, carrots, lettuce, kale, strawberries, and the many other mature vegetables you find at the store. Like I said, it feels like microgreen production should be lumped together with home bakeries and other home-based food businesses, but they aren’t. When you grow microgreens at home, you’re farming. Farming is very different from businesses and foods that do, or don't, fall under Cottage Food Laws. If you want to double-check your state, though, here are a few resources.

Cottage Food Laws - State specific breakdown of cottage food regulations, including links to specific rules for each state.
Institute for Justice - Offers a timeline of recent state reforms for homemade food businesses, highlighting changes in cottage food laws across various states.
Farm-to-Consumer Legal Defense Fund - Overviews of state specific cottage food laws, including sales limits, allowable outlets, and labeling requirements.
National Agricultural Law Center - Compilation of statutes and regulations for each state with cottage food laws.

U.S. Food & Drug Administration (FSMA)

The Food Safety Modernization Act (FSMA) was a 2011 reform of U.S. food safety laws. It aimed to transform the nation's food safety system. The Produce Safety Rule (PSR) is a key part of FSMA. It aims to ensure the safety of fresh fruits and vegetables. The PSR sets science-based, minimum standards for safely growing, harvesting, packing, and holding fruits and vegetables for human consumption. FSMA and the PSR will be your guiding light for understanding what regulations your farm must adhere to. Let’s dive in.

Top Half: Produce Safety Rule Decision Tree

Bottom Half: Produce Safety Rule Decision Tree

Above is the decision tree for determining if your farm is “covered” by the PSR or not. Don’t let the language confuse you. “Covered” sounds like it means “exempt.” In this context, “covered” means your farm must adhere, in part or in full, to the regulations set forth in FSMA’s PSR. Practically no microgreen farmers reading this blog are fully covered. Most will be “eligible for a qualified exemption from this rule.” Let’s start from the top.

“Does your farm grow, harvest, pack, or hold produce?” You can see the reference to section 112.3(c) to define “produce.” Let’s look at that section. This and the following screenshots are from the Code of Federal Regulations (CFR), which is not a section of FSMA. The CFR is a broader codification of all federal regulations, including those related to FSMA. The CFR is the official collection of all permanent regulations by the U.S. federal government. It’s divided into 50 titles that represent broad areas subject to federal regulation. Food safety regulations, including those stemming from FSMA, typically fall under Title 21 of the CFR, which covers food and drugs. We can see that reference in the upper right corner of this screenshot.
1. The highlighted section defining "Produce" would include microgreens, though not mentioned. Great! We answered question one. Your farm does grow, harvest, pack, and hold produce.

CFR Title 21: Defining “Produce”

“Does your farm on average (in the previous three years) have $25,000 or less in annual produce sales?”
1. This question is straightforward, but I want to elaborate on the practical reason for including it. Imagine you’re the head of the Food & Drug Administration (FDA), your state’s Department of Agriculture (DOA), or any other organization responsible for overseeing food, food production, or food safety. Do you think you’d have the time and resources to hunt down and vet every single business producing any volume of food for public consumption? Even those who just made their first sale? Probably not. When a farm business is still small, which they’ve defined as <$25,000 in annual sales, it’s too unlikely to be a threat to public health if something goes wrong. The government is going to focus its efforts on bigger operations. Operations that, if there were a food safety issue, would affect many more Americans.
2. If you're just making your first sales as a microgreen farmer, you're legally compliant. There's nothing more to do. Of course, you might still need an EIN, business bank account, and so on, but we cover that in our other blog - What’s Legally Required to Start a Microgreen Farm? LLCs, Bank Accounts, & More.
“Is your produce one of the commodities that the FDA has identified as rarely consumed raw?”
1. Asparagus; beans, black; beans, great Northern; beans, kidney; beans, lima; beans, navy; beans, pinto; beets, garden (roots and tops); beets, sugar; cashews; cherries, sour; chickpeas; cocoa beans; coffee beans; collards; corn, sweet; cranberries; dates; dill (seeds and weed); eggplants; figs; ginger; hazelnuts; horseradish; lentils; okra; peanuts; pecans; peppermint; potatoes; pumpkins; squash, winter; sweet potatoes; and water chestnuts.
2. These items are exempt from the Produce Safety Rule requirements because they are almost always cooked before being consumed, which can adequately reduce the presence of microorganisms of public health significance.
3. Official List
4. Microgreens and anything resembling microgreens do not appear on that list, which gives us our answer. “No.”
“Is your produce for person/on-farm consumption?”
1. If it’s for personal consumption, you have a garden. The government doesn’t care about your garden nor how you grow, harvest, or store the food you grow for yourself or your family.
2. The section referenced, 112.2(a)(2) doesn’t elaborate on the “on-farm consumption” language. Thankfully, it’s self explanatory. Are people eating the microgreens in your living room? Probably not. “No.”
"Is your produce intended for commercial processing that adequately reduced pathogens?”
1. These processes are called “kill steps.” Here are a few such kill step types.
  1. Heat treatments, like cooking, pasteurization, or other processes. For example, heating to 165°F (74°C) in the center of the product is often considered an effective kill step.
  2. Freezing certain products like fish intended for sushi for at least seven days can kill parasites.
  3. Washing produce with antimicrobial chemicals, like chlorine, PAA, or hydrogen peroxide.
  4. Acidification, especially with vinegar, can lower the pH below 3.3. This creates a hostile environment for pathogens.
  5. The extrusion process used in food manufacturing can serve as a kill step due to the high temperatures and pressures.
  6. Irradiation is another recognized kill step for certain types of produce.
2. If you use a kill step in your microgreen farm, please stop growing microgreens…
3. The answer should be “No,” so we move on to the final question.
The final question has two parts.
1. “Does your farm on average (in the previous three years)…have less than $500,000 in annual sales?
  1. The way they define the revenue criteria means you could’ve sold $700,000 of microgreen last year, so long as the prior two years brings that average below $500,000. If you’re close to this average, double check the current threshold. The FDA will update this number periodically to rise with inflation.
2. “[Does] a majority of the food [by value] get sold directly to “qualified end-users?”
  1. By value means by dollar amount. Does 50.1% or more of your revenue come from sales made to non-qualified end-users?
  2. Who is a qualified end-user? Qualified end-users (QEU) include "consumers," like home users and farmers' market patrons. Restaurants are also qualified end-users. They must be within the same state as the farm or within 275 miles of it. Another way to think of a QEU is anyone who is taking the microgreens out of your packaging. Home consumers take them out to eat them. Restaurant chefs take them out to use them in their dishes. Common examples of non-QEU are grocery stores and distributors.
3. Both criteria, (a) and (b), must be “No” for the answer to question #6 to be “No.” If your answer is No, you are fully “covered” by FSMA’s PSR, and you have a ton of regulatory compliance to follow. I’m guessing, though, that doesn’t include you. Your answer to this question is probably “Yes,” which means you are partially covered by FSMA’s PSR. In effect, you just have to adhere to two regulations - 112.6 and 112.7. Let’s look at those.

Produce Safety Rule - Sections 112.6 & 112.7

As you can see from the CFR screenshots below, 112.6 and 112.7 ask two questions. What modified requirements apply to me if my farm has a qualified exemption? What records must I keep if my farm has a qualified exemption?

CFR Title 21 Part 112: Sections 6 & 7

CFR Title 21 Part 112: Section 6

CFR Title 21 Part 112: Section 6 Continued & Section 7

112.6 - The packaging label must include the business name and full business address of your farm. I understand it might make people uncomfortable to put their home address out into the world like this, but these are the rules.

In addition, you must comply with Subparts O, Q, and R of Section 112.

Subpart O - Requires you to keep certain records. The records must be legible and retained for two years. The exact formatting doesn’t matter, nor does it matter if they’re handwritten or electronic. Any records related to the following activities must be dated and signed.

Personnel qualifications and training
Agricultural water testing results and corrective actions
Biological soil amendment treatments and application dates
Monitoring for animal intrusion
Equipment cleaning and sanitizing activities

Subpart Q - Reinforces that produce must not be adulterated during production or grown, harvested, or packed in “conditions unfit for food.”

Subpart R - Outlines how you would lose your qualified exemption.

112.7 - You must perform an annual review of the decision tree to confirm your status remains as an exempt farm. Such records could include a QuickBooks Profit & Loss Statement, Square transaction records, an Excel sales database, or anything else. The annual review should be dated and signed.

Link to CFR 112

In Summary

That was a lot of technical legal jargon and citing of regulations. Let’s recap it for you.

If you grow microgreens for personal consumption, you can ignore this.
If you grow for profit, but your average sales for the past three years are under $25,000, you can ignore this.
If you’ve sold an average of $25,000 to $500,000 of microgreens over the past three years, and a majority was sold to a qualified end-user, your farm is "qualified exempt" from the Produce Safety Rule.
If your farm is "qualified exempt," you must still list your business name and full business address on the label. You’re also required to maintain certain records about the cleanliness of your operation.

A final note. As I said at the start, each state, county, and city may have rules that override the FDA's. I am not all-knowing, nor am I going to check every state and city website to report the findings in this blog. Below are a ton of other resources you can check to see if there’s anything else you should know. Happy hunting!

Business License

Your city or state could require a business license. I’m located in Durham, NC, which doesn’t require a business license for farmers under most circumstances. While checking the resources below for other requirements, be sure to inquire about relevant business licenses.

Resources

Aside from the aforementioned resources, try the following five. (1) Visit your local farmers’ market and talk to the Market Manager. They should be connected with local agricultural experts. They can answer your questions about growing and selling microgreens from home. (2) Try searching the internet for SB(T)DCs in your state. Small Business (Tech &) Development Centers are advisory and support facilities designed to assist small business owners and aspiring entrepreneurs. They offer a wide range of services, including:

Free business consulting and low-cost training
Assistance with business plan development
Marketing support
Financial guidance
Technology advancement assistance
Export/import guidance
Disaster recovery support
Market research

SBDCs are a joint effort between the U.S. Small Business Administration (SBA) and local colleges or universities. There are nearly 1,000 local centers across the United States. (3) Reach out to contacts at your state’s Department of Agriculture. (4) Search for a local agricultural extension office, also known as the Cooperative Extension Services. They provide valuable resources for farmers, gardeners, and those interested in agriculture. Agricultural extension offices serve as a bridge between university research and local communities. (5) Finally, try using artificial intelligence (AI). I prefer a platform called perplexity.ai. I can ask complex, nuanced questions. It will respond with accurate, well-formatted answers, including citations. Perplexity will go back and forth as you ask more questions. It will use prior questions and answers to refine its approach. Ask Perplexity where to find the requirements for selling microgreens from home.