KuyaRomeo Posted 13 Dec 2011 , 7:43pm
post #1 of

I live and have a Bakery in New York State.

We want to ship but find it very confusing to figure out if we can Legally ship our baked goods, and if so, what are the restrictions.

1. Business in New York State, can we ship to New York State residence?

2. Can we ship to other states?

Do we need some sort of permit from each and every state to ship to, in order to meet health code? I found a lot of confusing material on line.

Specifically, we get asked many times if we can ship cake pops.

47 replies
scp1127 Posted 14 Dec 2011 , 6:30am
post #2 of

I don't know your state law, but if you ship over even one state line, you must have an FDA licensed commercial kitchen. Not having it is a federal violation with huge penalties. The process starts with an FDA application from your state Dept of Ag. The process is long and expensive. After all is approved, you must use their safe shipping guidelines like all other interstate shippers. These are those $25.00 shipping fees for overnights and dry ice. The application will have all requirements for the process. There are many old posts with this information.

KuyaRomeo Posted 15 Dec 2011 , 5:32pm
post #3 of

Thank you for the response.

I contacted my Health Department and they knew nothing about why I would not be able to ship across state lines or internally within my state.

I called the AG office and still have not heard back.

I have read countless articles on the web that may or may not have related to me and what I want to do, all with different conclusions.

Yes, you are correct that there are many old posts on here about this. How right you are!! Although I can not guarantee that I found and read them all, I can promise you that I read many prior to posting. I am not a lazy "do nothing for myself" kinda person. I have read and read and read. The posting have LOTS AND LOTS of "here's what I think" with very little fact and often debate the situation without any solid facts or conclusions.

I understand it is annoying when people ask the same thing over and over and over. And for that . . I apologize. It's not always easy to (a) make an educated conclusion after reading a forum debate, and (b) it's not always easy to find every article on a forum simply by using the forum search feature.

Lastly, I do apologize if this came off the wrong way. I do sometimes take it personal when someone kindly recommends I search before posting . . . when I have spent days doing just that.

jason_kraft Posted 15 Dec 2011 , 5:43pm
post #4 of

If your state is no help, you could try contacting the FDA directly.

http://www.fda.gov/AboutFDA/ContactFDA/FindanOfficeorStaffMember/TelephoneNumbersFrequentlyAskedofFDA/default.htm

KuyaRomeo Posted 15 Dec 2011 , 6:00pm
post #5 of

I know that you meant well . . and I DO appreciate the number listing you sent . . . however . . .
I just tried calling several of them:

888-463-6332
pressed 4 to talk to someone
pressed 8 to talk to federal state relations
pressed 4 again to talk to federal state relations
got message "I am sorry, you are disconnected"

Called back 888-463-6332
Pressed 4 to talk to someone
Pressed another number to talk about something OR food safety
Got a recording this number has been switched to a new voice system and then it hangs up.

Called another number

Center for Food Safety and Applied Nutrition (CFSAN) 301-436-1600
Instantly got a recording that this number has been changed to a non published number. Goodbye


I am soooo tired of trying to get answers on this. Now I know why the business down the street told me they just ship and don't ask. They would rather seek forgiveness then to ask permission.

I am understanding why. This is just absurd.

But it's not your fault, and thank you for the information.




Quote:
Originally Posted by jason_kraft

If your state is no help, you could try contacting the FDA directly.

http://www.fda.gov/AboutFDA/ContactFDA/FindanOfficeorStaffMember/TelephoneNumbersFrequentlyAskedofFDA/default.htm


LadyG33 Posted 15 Dec 2011 , 6:45pm
post #6 of

. As I understand your frustration you need to remember most people on this site are not business owners and they can only offer the limited amount of help that they have from doing the same as you, searching for other posts like this and getting the phone numbers you seem to have. Keep calling numbers until you get the answers you need or cross your fingers and hope you dont caught and made into the example as to why there are laws for shipping food thats your call.

jason_kraft Posted 15 Dec 2011 , 6:52pm
post #7 of

You might have better luck with a regional FDA office.

http://www.hhs.gov/about/regions/fdaner.html

KuyaRomeo Posted 15 Dec 2011 , 6:54pm
post #8 of

I do appreciate everyone on this forum. My frustrations do not come from the sharing and community here. My frustration comes when I am trying do legally do what is right and the State and Federal gov't makes it so complicated to find out exactly WHAT is legal and right.

I will keep trying (I called the local Farm & Ag again a moment ago . . got a voicemail again).

IF I EVER do find some solid confirmed answers, I will share my infomation

I have so many questions:

KuyaRomeo Posted 15 Dec 2011 , 6:59pm
post #9 of

Just tried 5 of those numbers . . none are in service.

I can laugh . . but can you recognize how hard this gets, to try to do the right thing?

Quote:
Originally Posted by jason_kraft

You might have better luck with a regional FDA office.

http://www.hhs.gov/about/regions/fdaner.html


jason_kraft Posted 15 Dec 2011 , 7:12pm

718-340-7000 option 3 got me to the voice mailbox of the FDA NY field office dept responsible for small business regulations. If you leave a message someone should get back to you.

designdiva22 Posted 15 Dec 2011 , 8:10pm

I had emailed the consumer@fda.gov email address saying this:


Hello!

I have a home bakery that is licensed and inspected but wanted to know if I can ship inter-state. Do I need an FDA license or commercial kitchen?

I am aware that there are certain requirements for shipping across the states, building the kitchen to certain requirements and having the packaging and recipes licensed.

It would be great if you can let me know if it is legal or not. Thank you!

And here's the response I got:

Dear *****, FDA does not license or permit food firms. Because this is a home business for baked goods you do not need anything from FDA.

Consumer Affairs Specialist #3
Communication and Coordination Branch
Division of Education and Communication
Office of Food Defense, Communication and
Emergency Response
Center for Food Safety and Applied Nutrition
U.S. Food and Drug Administration

So does that mean we can ship cake pops and stuff inter-state??

FromScratchSF Posted 15 Dec 2011 , 8:30pm

I'm in CA, no cottage food law, I bake in a commercial kitchen. I recently asked my kitchen manager about shipping, I was told that FDA has nothing to do with regulating the shipping of food. According to them that falls under the USDA, and they only regulate meat and poultry, not baked goods. They told me if I wanted to start shipping cake/cupcakes I have nothing to worry about as long as they were prepared and packaged in their kitchen, even across state lines. There are tenants in our kitchen that ship cookies, cake pops and one does fruit cake. They ship all over the US and have no special permit or license to do it.

Not exactly concrete, but it's enough that if I want to start shipping my baked goods, I would without hesitation with the commercial kitchen's blessing.

My suggestion is to maybe contact a shipper direct like Fed Ex or UPS for rules and regs for your state?

KuyaRomeo Posted 15 Dec 2011 , 8:53pm

Agiain . . . lots of good information . . . interesting information . . . yet very conflicting information.

As a small business . . it is really hard to always know what to do and where to even find the guidelines . .

I will keep looking and begin doing what I need to do, by using common sense . . . while still looking. I will document every contact and attempted contact . . so I can at least show a path of really trying to do the right thing. That's the best I can offer.

It won't save my butt in a FINE . .but at least I can try to fight it by showing very good faith . . . I think I have done more than reasonable in attempting to find out what to do.

Jason_Kraft . .

I have contacted that number and left a message . . . if I hear back, I will come back and post what I find out.

FromScratchSF Posted 15 Dec 2011 , 9:48pm

OK here's this:

http://www.fedex.com/cgi-bin/content.cgi?template=eg_pr&content=about/pressreleases/emea/usfoodimportrules&cc=eg

My translation - FDA only applies to foods imported into the US.

Additional guidelines for shipping (various carriersicon_smile.gif
http://old.cbbqa.org/articles/RestrictionsOnShipments.html

Hope this helps further!

FromScratchSF Posted 15 Dec 2011 , 9:51pm

USDA rules for domestic shipping along with contact information:

http://www.fas.usda.gov/itp/ofsts/us.html

KuyaRomeo Posted 17 Dec 2011 , 3:11am

Thank you to everyone who shared their insight and experiences regarding the shipping of perishable baked goods.

And thank you Jason_Kraft for providing that last FDA number where I finally got a call back from.

1. My contact at the Health Department deemed nothing wrong and nothing additional needed to ship.

2. My contact at the Farm & AG Department deemed nothing wrong and nothing needed on their end in order for me to ship my product.

3. Today I received a returned phone call from the FDA who explained that (1) They would NEVER charge a fee for any certificate, or document (so all those that said this was a costly adventure, were mislead) and (2) Nothing additional is needed for me to ship my products throughout the 50 states. We simply need to register with the FDA on line (which we are all supposed to do regardless of shipping) and abide by the product label guidelines.

This from the horses mouth. This is all I need to hear. Case closed for me.

I have documented everyone I spoke with and all of my efforts. February, we are going to start offering shipping for some of our products.

Thank you all for your advice.

FromScratchSF Posted 17 Dec 2011 , 3:41am
Quote:
Originally Posted by KuyaRomeo

Thank you to everyone who shared their insight and experiences regarding the shipping of perishable baked goods.

And thank you Jason_Kraft for providing that last FDA number where I finally got a call back from.

1. My contact at the Health Department deemed nothing wrong and nothing additional needed to ship.

2. My contact at the Farm & AG Department deemed nothing wrong and nothing needed on their end in order for me to ship my product.

3. Today I received a returned phone call from the FDA who explained that (1) They would NEVER charge a fee for any certificate, or document (so all those that said this was a costly adventure, were mislead) and (2) Nothing additional is needed for me to ship my products throughout the 50 states. We simply need to register with the FDA on line (which we are all supposed to do regardless of shipping) and abide by the product label guidelines.

This from the horses mouth. This is all I need to hear. Case closed for me.

I have documented everyone I spoke with and all of my efforts. February, we are going to start offering shipping for some of our products.

Thank you all for your advice.




That is fantastic! I'm so glad you got concrete resolve.

I've never registered with the FDA, can you post a link on where wee are supposed to do that?

Jen

KuyaRomeo Posted 17 Dec 2011 , 3:56am

This is the link provided by th woman on the phone from the FDA (who was super nice and very helpful)

http://www.fda.gov/Food/FoodDefense/Bioterrorism/FoodFacilityRegistration/default.htm


Any food business must register (whether you ship or not)

I just competed our registration.

myslady Posted 17 Dec 2011 , 4:14am

Im glad you were able to get it figured out.

FromScratchSF Posted 17 Dec 2011 , 4:17am

That's why I've never heard of it:

"This subpart does not apply to the following facilities:
(a) A foreign facility, if food from such facility undergoes
further manufacturing/processing (including packaging) by another
facility outside the United States. A facility is not exempt under this
provision if the further manufacturing/processing (including packaging)
conducted by the subsequent facility consists of adding labeling or any
similar activity of a de minimis nature;
(b) Farms;
(c) Retail food establishments;
(d) Restaurants;

(e) Nonprofit food establishments in which food is prepared for, or
served directly to, the consumer;"

We sell direct to the customer so FDA labeling and registering is unnecessary. If you sell wholesale then you do have to register and label according to FDA guidelines.

Thanks again for all this legwork, it's nice to finally get direct info about this!

scp1127 Posted 17 Dec 2011 , 1:23pm

You all are correct. Simply register and get labels.

Has anyone gotten the registration application? There is the list of requirements.

Any commercial kitchen should pass the inspection. Home kitchens are not allowed and separate kitchens with less requirements will not pass. The main issue being no drains.

The simple labeling is simple, but at a cost of $125.00 to $250.00 each. The shipping, which is costly is to insure proper temps even in adverse conditions.

The rest is still in the application, Bioterrorism registration, is there. All of the required logs are there too. Failure to keep the logs can incur a per diem fine for months back. It is all in the application.

The sole purpose of the process is to be able to trace food from origin of ingredients to final consumer in case of illness or terrorism. The FDA has been strict on registration for shipping across state lines since 9/11. You can google any of this.

So the answer is yes, just register and label. But when you get the application and read every page, which is about 25 pages (guess), then decide how simple it is. If you want to offer 10 items for mailing, look at about a $2000.00 investment. How much do you have to sell, with upping your total price to the consumer about 50% to cover shipping? If you have a profit/income of $20.00 on a dozen cupcakes, you will have to ship 100 orders and make nothing for yourself to cover just the labels. And that is with only 10 choices. Online people want more choices than that.

There is a reason that people don't launch shipping businesses until they have a strong following. Look at the bakeries who do it and it is a small percentage.

All of the answers are in the application. Believe me, if it were simple, I would be doing it. I have everything in place with an FDA code kitchen. My site is set up to bring the business to this level when I am ready.

My site already gets more mistake orders from all over the country than legit orders in my local area. I refund a ton of money from people who order $$hundreds at a time only for me to inform them that I cannot fill the order.

Get the application and read it. Both MD and WV gave me the same exact correct verbal information, but the information I post on CC is directly from the application. My local HD told me that when I get the FDA approval, I will no longer be inspected locally. But because of startup costs, I have put it off.

KuyaRomeo Posted 17 Dec 2011 , 2:20pm

I am not sure we are on the same page, or looking at the same application ...

1. The woman who called from the FDA said we can ship without issues so long as we register (all food businesses must register regardless of shipping).

2. She gave me a link to register our bakery online. It was only a few pages, and took less than 5 minutes.

3. She said I did not need FDA approved kitchen, and was covered under local health dept. not sure why you needed one.... Perhaps you have a bakery/ meat packing plant??

4. Label machines ar not all that expensive. Nutrition and ingredient labels are needed for wholesale, but not for sales directly to consumer.

5. Your shipping costs should not come out of your profit. That's nuts. If I sell 10 cake pops for $30. The shipping is an additional fee the customer pays. It does not come out of the cost of the product.

6. Your issue of people ordering things that you don't have sounds like an internal management problem on your end. Your shopping cart system should not allow sales of inventory you don't have.


In collusion: I spoke directly with the FDA, and will be following their advice. I will not be getting an FDA approved kitchen or filling a 26 page registration.

But everyone needs to do what they feel is best.



Quote:
Originally Posted by scp1127

You all are correct. Simply register and get labels.

Has anyone gotten the registration application? There is the list of requirements.

Any commercial kitchen should pass the inspection. Home kitchens are not allowed and separate kitchens with less requirements will not pass. The main issue being no drains.

The simple labeling is simple, but at a cost of $125.00 to $250.00 each. The shipping, which is costly is to insure proper temps even in adverse conditions.

The rest is still in the application, Bioterrorism registration, is there. All of the required logs are there too. Failure to keep the logs can incur a per diem fine for months back. It is all in the application.

The sole purpose of the process is to be able to trace food from origin of ingredients to final consumer in case of illness or terrorism. The FDA has been strict on registration for shipping across state lines since 9/11. You can google any of this.

So the answer is yes, just register and label. But when you get the application and read every page, which is about 25 pages (guess), then decide how simple it is. If you want to offer 10 items for mailing, look at about a $2000.00 investment. How much do you have to sell, with upping your total price to the consumer about 50% to cover shipping? If you have a profit/income of $20.00 on a dozen cupcakes, you will have to ship 100 orders and make nothing for yourself to cover just the labels. And that is with only 10 choices. Online people want more choices than that.

There is a reason that people don't launch shipping businesses until they have a strong following. Look at the bakeries who do it and it is a small percentage.

All of the answers are in the application. Believe me, if it were simple, I would be doing it. I have everything in place with an FDA code kitchen. My site is set up to bring the business to this level when I am ready.

My site already gets more mistake orders from all over the country than legit orders in my local area. I refund a ton of money from people who order $$hundreds at a time only for me to inform them that I cannot fill the order.

Get the application and read it. Both MD and WV gave me the same exact correct verbal information, but the information I post on CC is directly from the application. My local HD told me that when I get the FDA approval, I will no longer be inspected locally. But because of startup costs, I have put it off.


scp1127 Posted 22 Dec 2011 , 8:21am

You missed my point completely. The label is a nutritional label, stating calories, serving size, fat, sodium, etc. Just like the one in the stores. They require a lab analysis which costs $150.00 to $250.00 each. Not a shipping label. The FDA doesn't charge, the lab charges. This is the cost. Interstate commerce is not handled by a local health dept. Why would I need two licenses to do business in two states if what you all say is true? States do not have reciprocal agreements. Commerce over state lines, except in cases of the "Fair Trade Between States Act", where businesses are located on a state line, must either comply with all affected states individually or be covered federally. A "Fair Trade Act" wouldn't make any sense. Why would this even exist? Why wouldn't businesses gather in states with the most lax laws and ship from there?

When we have an outbreak of illness from food, and if you happen to be the innocent user of the contaminated ingredient, what are you going to do when the Feds ask for your production schedules on their form and they want to see your recall protocol?

Federal registration is to trace sources and final users. You can't provide that information unless you comply with their requirements. If you can't comply, what is the point of registration? There has to be a reason. Last year flour caused an outbreak of I think salmonella.

Rather than getting information from an unknown federal employee, please take the time to read and research. Why do the larger, well-known bakery businesses do exactly what I have spelled out when it would be so much cheaper to just do whatever they felt like doing? The laws don't change from one business to another. Just think about it.

myslady Posted 22 Dec 2011 , 11:09am

SCP- can you post a link to the application you are referring to.
While you are correct that some places do need to provide nutrition labels on the products, this is not true for all. When I search the site below, it says nutrition labels are not required for bakery products sold directly to consumers: http://www.fda.gov/Food/GuidanceComplianceRegulatoryInformation/GuidanceDocuments/FoodLabelingNutrition/FoodLabelingGuide/ucm064894.htm

Also, this one says private residences do not have to register even though food may be manufactured/processed, packed, or held there: http://www.fda.gov/Food/FoodDefense/Bioterrorism/FoodFacilityRegistration/ucm081610.htm

FromScratchSF Posted 22 Dec 2011 , 5:11pm

Scp, I normally agree with you on many things, but I dont agree with you on this. I'm not sure where you got all this info but I encourage you to check again because I think you have the opportunity to ship your cakes and you are missing it!

There is no FDA label requirement like you have said. None.

Bakeries and restaurants that sell direct to consers do not register with anyone outside of the normal business requirements state and local. There is no FDA requirement. No recipe registration. No nutritional info requirement. None.

There isn't interstate issues at all selling across state lines. If there was Amazon would not be in the news like they are. You are required to charge sales tax on goods sold in your own state, but you do not charge sales tax out of state. In CA, sales tax is only charged on food consumed on site at a restaurant. Not if they take it to go, and not if you ship it anywhere. Your state taxes may be different but you as a business owner are only required to follow the local and state tax laws where your business resides. This is universal regardless of where you are.

I work in a very busy, very popular commercial kitchen in a very gourmet-forward city. Nobody I spoke to, not the guys that own the kitchen, the safety manager, or the 3 other pastry chefs that ship thief food (fruit cake, tartlets, truffles, cake balls etc) have heard of any of the stuff you are saying. They are 1000% legal. I also googled the heck out of this topic and haven't found one source for any of the things you've said.

Anyway, sorry to disagree so strongly, you know I totally respect you and I tried to find a source to back you up but every avenue I researched all came up with nothing even similar to what you said.

It is scarey to think how easy it is to legally ship food, but it is what it is.

designdiva22 Posted 23 Dec 2011 , 12:10am

Thanks for clarifying that FromScratchSF. There has been so much confusion on this topic all along! Even the email I sent to the FDA said I was free to ship my baked goods without any licensing, labeling, lab tests etc etc.

I agree with scp on many things as well as she seems to give sound advice but not on this. Thanks!

MimiFix Posted 23 Dec 2011 , 12:58am

Part of scp's information refers to nutrition labeling. All products must have the nutrition facts label, no exemptions. Several months ago I researched this for a client interested in beginning a mail order business. The FDA agent I spoke with sent me the following information.

http://www.fda.gov/Food/GuidanceComplianceRegulatoryInformation/GuidanceDocuments/FoodLabelingNutrition/FoodLabelingGuide/ucm064904.htm
L54. Are mail order sales covered by the food labeling laws?
Answer: The same labeling laws apply to all categories of retail sale, including mail orders. Foods sold by mail order must be fully labeled.

FromScratchSF Posted 23 Dec 2011 , 1:38am
Quote:
Originally Posted by MimiFix

Part of scp's information refers to nutrition labeling. All products must have the nutrition facts label, no exemptions. Several months ago I researched this for a client interested in beginning a mail order business. The FDA agent I spoke with sent me the following information.

http://www.fda.gov/Food/GuidanceComplianceRegulatoryInformation/GuidanceDocuments/FoodLabelingNutrition/FoodLabelingGuide/ucm064904.htm
L54. Are mail order sales covered by the food labeling laws?
Answer: The same labeling laws apply to all categories of retail sale, including mail orders. Foods sold by mail order must be fully labeled.




No.

All of us here are "bakeries" (I think) therefore expemt from FDA guidelines as you've posted in this link. There is no labeling requirement for restaurants. A bakery is a restaurant. Even if you sell your goods to a cafe or restaurant, if they offer direct food sales and they serve food too as a restaurant there is no labeling requirement.

If you are a restaurant and you put your food in a box and ship it, you are still exempt from all FDA food labeling, registration etc. that has been discussed here.

MimiFix Posted 23 Dec 2011 , 1:51am

It would be great if this was true. Can you please post a link so we can see the exemption?

jason_kraft Posted 23 Dec 2011 , 1:59am

The main exemption that applies here is the small business exemption, so if you have under $50K in annual food revenue you do not need to label (according to the FDA anyway, states may have different rules).

http://www.fda.gov/Food/GuidanceComplianceRegulatoryInformation/GuidanceDocuments/FoodLabelingNutrition/FoodLabelingGuide/ucm064904.htm#smbiz

Custom cakes are always exempt, but if you are selling mail order and don't qualify for the small biz exemption you would probably need to prepare nutrition labels (see L118 in the above link).

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