Changes to Arkansas’ Cottage Food Law Opens Up Online Sales

by Kristin Higgins - March 22, 2021

UPDATE: Arkansas legislators passed Act 1040 of 2021 shortly after the law below. Act 1040, known as the Arkansas Food Freedom Act, will completely replace Arkansas' existing Cottage Food law when it takes effect July 28. For more information on the new law, read our June 14, 2021 blog post

Arkansas’ Cottage Food law continues to evolve since its passage in 2011. State lawmakers in early March passed Act 306, which expands online sales for these select nonhazardous foods beyond a farmers’ market. But questions remain about selling those foods across state lines.

Act 306 says cottage food productions can offer their products directly to consumers through the internet “if the sale from the cottage food production operation is directly to an end consumer located in:

• This state; or
• Another state if the cottage food production complies with all federal regulations regarding food safety."

The changes from Act 306 are in effect now though we have some questions about the impact of the law. The bill included an “emergency clause,” which means the March 9, 2021 law went into effect as soon as it was signed by the governor a few days later. Cottage Foods may now be sold online and not just in person.

Definition of Cottage Food

The definition of a Cottage Food in Arkansas remains the same.

A Cottage Food Production Operation is not required to have any permit or license from the Arkansas Department of Health. Under state law, a “Cottage Food Production Operation” means a person who produces food items in the person’s home that are not potentially hazardous foods.

In Arkansas, the foods that are considered Cottage Foods are:

• Bakery products
• Candy
• Fruit butters
• Jams
• Jellies
• Chocolate-covered fruit and berries that are not cut
• Similar products specified in rules adopted by the Department of Health

Note: Sugar-free jams, jellies, fruit butters and some candy and bakery products made with sugar substitutes are considered potentially hazardous food and may not be sold as a Cottage Food.

Where Can Cottage Foods Be Sold?

Now that Act 306 has taken effect, Arkansas’ law says cottage food productions can offer products directly to the consumer:

1. From the site where the products are produced;
2. At a physical or online farmers’ market;
3. At a county fair;
4. At a special event;
5. (A) At a pop-up shop within another established business. (B) “Pop-up shop” means a cottage food production operation selling items in an unaffiliated established business for a limited time period with the consent of the owner of the unaffiliated established business and the owner or employee of the cottage food production operation being present at the point of sale; or
6. Through the internet if the sale from the cottage food production operation is directly to an end consumer located in (A) this state or (B) Another state if the cottage food operation complies with all federal regulations regarding food safety.

Under Section 6, Cottage Foods can now be mailed to customers, confirmed Jeff Jackson with the Arkansas Department of Health.

Questions Remain

But Act 306 raises some questions, specifically the part about selling Cottage Foods across state lines.

States can only regulate food sold within their borders. Once food products cross state lines, they fall under federal regulations. By definition, Cottage Foods are unregulated products.

So the question remains, how can Cottage Foods be sold across state lines and still be considered “Cottage Foods” instead of commercially produced items that need to be made in a licensed and inspected kitchen?

We asked officials at the Arkansas Department of Health about this section. Here’s Jeff Jackson told us:

“As for 6 (B): I cannot speak to the implications of selling across state lines. Once it leaves the state of Arkansas it is subject to the state/local public health jurisdiction where the purchaser resides and the United States Food and Drug Administration. Therefore, my recommendation is that any person who chooses to sell under 6 (B) would need to verify that the sale will not violate any laws/rules of the receiving public health jurisdiction and/or FDA.”

We will update our fact sheet on the Arkansas Cottage Food Law after the end of the legislative session. Lawmakers last week said they may be in session until the end of April.