Legal Question - Selling Fondant Decorations In Tx

Decorating By ohnesie Updated 3 Sep 2011 , 3:08am by cakestyles

ohnesie Posted 31 Aug 2011 , 7:58pm
post #1 of 23

I was wondering if its legal to sell fondant edible decorations in Texas. It was illegal to bake from home until just recently. So I'm wondering in what category would the fondant decorations fall in regards to laws. I am doing well selling them, but I dont want to get in trouble. Where could I call to find out?

22 replies
jason_kraft Posted 31 Aug 2011 , 8:06pm
post #2 of 23

Since fondant is edible it should fall under the same regulations as the new TX cottage food law, as long as you sell within TX. If you are selling online to other states there are more strict requirements from the FDA.

Texas_Rose Posted 31 Aug 2011 , 8:47pm
post #3 of 23

Should be legal starting tomorrow, with the new cottage food laws...but you've got to accept payment at home and the law excludes internet sales.

If you're selling them as edible according to the new cottage food laws, you have to comply with the state's labeling requirements, which they haven't posted yet. In the meantime most of us are going with a statement on the invoice saying that the food was produced in a kitchen that is not inspected by the state of TX or local health departments.

If you sell them as non-edible decorations (which I have done in the past with no legal problems) then you have to charge sales tax and pay that sales tax to the state.

kelleym Posted 1 Sep 2011 , 5:40am
post #4 of 23

Fondant by itself is not a baked good, spice mix, or a jam or jelly, so edible decorations by themselves are not covered by cottage foods.

Since dried decorations aren't generally eaten, if I were you I would market them as non-edible, for decoration only, and then no food laws will apply. You may even want to look into making them out of non-toxic clay or cold porcelain to avoid any confusion.

jason_kraft Posted 1 Sep 2011 , 9:26am
post #5 of 23
Quote:
Originally Posted by kelleym

Fondant by itself is not a baked good, spice mix, or a jam or jelly, so edible decorations by themselves are not covered by cottage foods.



Interesting...based on the relatively narrow wording of the TX law, it would seem that BC frosting would also not be covered, so once you frost a cake or add fondant it would no longer be covered under the CFL. Contrast that with other states, which do not include the "must be baked" requirement and specifically include non-potentially hazardous foods in general under the CFL.

I would hope that TX would issue guidance soon to clarify this, as the letter of the law seems to be at odds with the law's intent.

kelleym Posted 1 Sep 2011 , 12:52pm
post #6 of 23
Quote:
Originally Posted by jason_kraft

Quote:
Originally Posted by kelleym

Fondant by itself is not a baked good, spice mix, or a jam or jelly, so edible decorations by themselves are not covered by cottage foods.


Interesting...based on the relatively narrow wording of the TX law, it would seem that BC frosting would also not be covered, so once you frost a cake or add fondant it would no longer be covered under the CFL. Contrast that with other states, which do not include the "must be baked" requirement and specifically include non-potentially hazardous foods in general under the CFL.

I would hope that TX would issue guidance soon to clarify this, as the letter of the law seems to be at odds with the law's intent.



Non-potentially hazardous frosting is accepted as part of the baked item. It's not at odds. Everything is fine. icon_smile.gif

I really think you ought to stop giving people legal advice since you are not an attorney in any state that I am aware of.

jason_kraft Posted 1 Sep 2011 , 2:30pm
post #7 of 23
Quote:
Originally Posted by kelleym

Non-potentially hazardous frosting is accepted as part of the baked item.



That would make sense, and that's how most CFLs are worded, but the TX law has a narrower definition for some reason. For example, the TX CFL also does not cover things like no-bake cookies or selling frosting separately.

http://www.texascottagefoodlaw.com/TheLaw.aspx

Hopefully this will be a moot point once TX releases guidance documents clarifying the CFL. I certainly wouldn't advise home-based bakers in TX to stop making cakes with BC or fondant (since most people will go by the spirit of the law rather than the letter) but it's my belief that laws should be written as clearly as possible, and the "prepared by baking" clause in 2-a (as well as the negative "does not include a PH food item" instead of "may include NPH food items") is not as inclusive as it should be.

kelleym Posted 1 Sep 2011 , 4:29pm
post #8 of 23
Quote:
Originally Posted by jason_kraft

Quote:
Originally Posted by kelleym

Non-potentially hazardous frosting is accepted as part of the baked item.


That would make sense, and that's how most CFLs are worded, but the TX law has a narrower definition for some reason. For example, the TX CFL also does not cover things like no-bake cookies or selling frosting separately.

http://www.texascottagefoodlaw.com/TheLaw.aspx

Hopefully this will be a moot point once TX releases guidance documents clarifying the CFL. I certainly wouldn't advise home-based bakers in TX to stop making cakes with BC or fondant (since most people will go by the spirit of the law rather than the letter) but it's my belief that laws should be written as clearly as possible, and the "prepared by baking" clause in 2-a (as well as the negative "does not include a PH food item" instead of "may include NPH food items") is not as inclusive as it should be.



I'm glad you won't be "advising" Texas home bakers to do anything, since you're not an attorney, you had no hand in this law, and you live in California.

To all Texas bakers, if you can't find the answer on www.TexasCottageFoodLaw.com then you need to consult an attorney. There are no "clarifying documents" forthcoming, that is something Jason just made up in his head. The law is the law, that's what we have to go by, that's what a judge will go by if there is ever a problem. Remember, real attorneys have law degrees and charge $275+ an hour. Fake lawyer wannabes give free advice on the internet. And you know what they say about advice generally being worth what you pay for it.

jason_kraft Posted 1 Sep 2011 , 4:33pm
post #9 of 23
Quote:
Originally Posted by kelleym

There are no "clarifying documents" forthcoming, that is something Jason just made up in his head.



Below is an example of a clarifying document released by MI shortly after their CFL was enacted. This is a common practice when new state laws are put in place, especially if they impact existing regulatory agencies at the county and local levels. I would be very surprised if TX did not release a similar document within a few months.

http://www.michigan.gov/documents/mda/MDA-CFFAQ-MASTER_327558_7.pdf

Here is another example of a clarifying document released by TX covering the general food code (not specific to the CFL), a similar document will probably appear under the FAQ section of the site linked below.

http://www.dshs.state.tx.us/foodestablishments/faqtechnical.shtm

kelleym Posted 1 Sep 2011 , 6:43pm
post #10 of 23

You're right, I clearly need to study up on this new law.

cs_confections Posted 1 Sep 2011 , 7:51pm
post #11 of 23
Quote:
Originally Posted by kelleym

You're right, I clearly need to study up on this new law.




icon_lol.gif

Jason, you should dig a little deeper.

This brings to mind that saying, "A little knowledge is a dangerous thing."

cakegirl0905 Posted 1 Sep 2011 , 8:49pm
post #12 of 23
Quote:
Originally Posted by jason_kraft

Quote:
Originally Posted by kelleym

There are no "clarifying documents" forthcoming, that is something Jason just made up in his head.


Below is an example of a clarifying document released by MI shortly after their CFL was enacted. This is a common practice when new state laws are put in place, especially if they impact existing regulatory agencies at the county and local levels. I would be very surprised if TX did not release a similar document within a few months.

http://www.michigan.gov/documents/mda/MDA-CFFAQ-MASTER_327558_7.pdf

Here is another example of a clarifying document released by TX covering the general food code (not specific to the CFL), a similar document will probably appear under the FAQ section of the site linked below.

http://www.dshs.state.tx.us/foodestablishments/faqtechnical.shtm




I dont believe you, continue.

Amia Posted 1 Sep 2011 , 10:56pm
post #13 of 23
Quote:
Originally Posted by kelleym

You're right, I clearly need to study up on this new law.




Maybe you should take a look at that website Jason referenced earlier? www.texascottagefoodlaw.com - looks like it might have some good info... icon_rolleyes.gif

jason_kraft Posted 2 Sep 2011 , 1:12am
post #14 of 23
Quote:
Originally Posted by kelleym

You're right, I clearly need to study up on this new law.



There really isn't much to study at this point -- as you said the law is the law, and that's all we have to go on until TX issues more guidance.

Based on the letter of the TX CFL, standalone fondant marketed as edible is not covered (due to the "must be baked" clause), unlike other states' CFLs which would allow the sale of edible fondant due to its non-potentially hazardous nature.

Texas_Rose Posted 2 Sep 2011 , 1:19am
post #15 of 23
Quote:
Originally Posted by jason_kraft

Quote:
Originally Posted by kelleym

You're right, I clearly need to study up on this new law.


There really isn't much to study at this point -- as you said the law is the law, and that's all we have to go on until TX issues more guidance.

Based on the letter of the TX CFL, standalone fondant marketed as edible is not covered (due to the "must be baked" clause), unlike other states' CFLs which would allow the sale of edible fondant due to its non-potentially hazardous nature.




I think you're missing the sarcasm here, Jason.

KelleyM was instrumental in getting the CFL passed in TX, and the website that people were referring to in the other posts is hers.

jason_kraft Posted 2 Sep 2011 , 1:58am
post #16 of 23

Sarcasm? What's that? icon_wink.gif

I'm well aware of Kelley's contribution toward getting the TX CFL passed, and I commend her for her efforts. (I was actually the person who linked to her site, which provides the text of the CFL.) That's why it's so puzzling that my observation of the limiting differences in the text of the TX CFL compared with other states was met with ridicule.

kelleym Posted 2 Sep 2011 , 2:06pm
post #17 of 23
Quote:
Originally Posted by jason_kraft

Sarcasm? What's that? icon_wink.gif

I'm well aware of Kelley's contribution toward getting the TX CFL passed, and I commend her for her efforts. (I was actually the person who linked to her site, which provides the text of the CFL.) That's why it's so puzzling that my observation of the limiting differences in the text of the TX CFL compared with other states was met with ridicule.




Let's be honest, you were not "observing", you were attempting to interpret our law without a legal background, without having consulted an attorney, and without having participated in the process and having the benefit of knowing the legislative intent. Your incorrect interpretation was going to scare Texas bakers and make them think they couldn't use frosting on their cakes; kind of like the time you told Ohio home bakers they couldn't bake with eggs.

What I find puzzling is your inauthentic eyelash-batting every time you get called on this kind of behavior. I am asking you again to please refrain from giving legal opinions or legal interpretations, especially on the Texas law, because you do not have the credentials to do so.

jason_kraft Posted 2 Sep 2011 , 2:13pm
post #18 of 23
Quote:
Originally Posted by kelleym

Your incorrect interpretation was going to scare Texas bakers and make them think they couldn't use frosting on their cakes



If you reread my earlier post, I specifically stated that TX cake decorators should not worry about cakes made with frosting and fondant. The issue is that classes of products that are not baked are needlessly excluded from the CFL, even if they are NPH -- are you disputing this?

And as far as my interpretation being legally correct or incorrect, the law is brand new and there have been no clarifying documents or legal decisions as of yet, so it seems a little premature to definitively declare anyone's interpretation one way or the other.

This is a public forum and I have every right to read the text of the law and give my opinion about what I think it means, just as you have the right to ignore what I say or respond with your own relevant points. You do not have the right to attack me personally because you disagree with my conclusions.

kelleym Posted 3 Sep 2011 , 1:54am
post #19 of 23

My information about the Texas law has always come directly from an attorney who helped draft the bill. It's not a personal attack to tell you that you're wrong.

This will be my last post on this thread.

jason_kraft Posted 3 Sep 2011 , 2:01am
post #20 of 23
Quote:
Originally Posted by kelleym

My information about the Texas law has always come directly from an attorney who helped draft the bill.



I would be interested in hearing what the attorney has to say about how the letter of the TX CFL treats things like selling edible fondant and frosting (either by itself or on cake), as well as other NPH items that are not baked.

costumeczar Posted 3 Sep 2011 , 2:38am
post #21 of 23
Quote:
Originally Posted by jason_kraft

Quote:
Originally Posted by kelleym

My information about the Texas law has always come directly from an attorney who helped draft the bill.


I would be interested in hearing what the attorney has to say about how the letter of the TX CFL treats things like selling edible fondant and frosting (either by itself or on cake), as well as other NPH items that are not baked.




Well, Kelley said she's not going to post anymore on this topic. Maybe you could call a Texas attorney and ask them about it, but they'll probably charge you. I personally am not $250 an hour's worth curious.

cakestyles Posted 3 Sep 2011 , 3:06am
post #22 of 23

I agree. It's TX...don't live there, don't care.

cakestyles Posted 3 Sep 2011 , 3:08am
post #23 of 23

On second thought...there is one thing about TX that I'm curious about. Did they really just raise the speed limit to 85 mph?

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