Author Note: This is the fourth in a series of essays about starting a small food business in Virginia. This article was written in April, 2016. Future essays how the regulatory process turned out, my planned investment, and other topics that I have not yet written about. I have several more essays that I’ve already written, and the rest are being written as things happen. I hope you enjoy the articles and feel free to express opposing and supporting opinions. The articles that have been written so far are:
1. Starting a Small Business in Virginia
2. Starting a Small Business in Virginia – The Krauts
3. Starting a Small Business in Virginia – The Regulations – Part 1
4. Starting a Small Business in Virginia – The Regulations – Part 2
Things have gotten a bit crazy lately and I am feeling a bit despondent and overwhelmed about recent regulatory events. Here’s what happened:
On March 9th I submitted the Virginia Department of Agriculture and Consumer Services (VDACS) information package that took me two days to prepare. I waited, and waited, and waited. After about a week and a half, I called and was told the person reviewing my material was in a class. I waited some more. After another week I called again and was routed to voicemail. I left a message and waited again. On March 31st I received information about my packet. I was so happy to hear from them. They needed the address of the commercial kitchen I was planning to use, confirmed that I need to contact Virginia Tech to get my sauerkraut process evaluated and tested, questioned my use of sprouted nuts in my fruit and nut bars, and had many comments on my draft labels. No problem with these questions. The VDACS representative seemed very capable. I set about getting the questions answered.
Several days later I had replied to all VDACS questions including my process for sprouting the nuts. I do this with my nuts at home because nuts contain phytic acid which prevents the uptake of many nutrients. Soaking the nuts removes the phytic acid and makes them very nutritious. I also called Virginia Tech and sent them my sauerkraut recipes. A few days later I received an informative email from the scientist there who said she needed my process for making the kraut and she gave me a few clues as to what she wanted:
• Proper cleaning and sanitation of equipment
• Proper maintenance of the mother culture
• Proper measurement of ingredients
• Proper monitoring and measurement of fermentation temperatures
• Proper monitoring of pH changes/acidity level changes
• Change in pH over time – progressing to below 4.6 with a measurable change in pH in the first 24 hours of fermentation
I resurrected and amended the process flow I originally sent to VDACS. Sent it out.
But there was more in the email: “I work independently from your regulatory agent and cannot suggest that testing of product would be mandatory. However, for me to provide a letter of process approval, I would need to evaluate the process and product.” So let me understand…. The scientist can’t say that testing of the product itself is mandatory, but no product testing equals no letter of process approval, and no letter, no VDACS approval. Circuitous and curious.
Hmmm, now things are sounding dicey. What they require is “two samples of product prior to fermentation, 2 samples of product after 24 hours of fermentation and 2 samples of finished product after fermentation preferably in the containers you wish to sell.” Each test (per product, I am guessing) costs $40. I have seven recipes, and each recipe requires six samples. That’s $280 and 42 samples. Evidently I can freeze the initial samples and those at 24 hours. But how am I going to get 42 jars to Blacksburg, over 5 hours away? By now I am feeling pretty depressed, overwhelmed, and exhausted thinking about all of those samples.
I set out to nail down the things I would need for this effort. First I shopped for small glass containers to hold the first two sets of samples. Then I ordered a pH meter. I had learned in the Better Process Control School how to perform the pH testing by blending the sauerkraut. Next I ordered 80 pounds of organic cabbage. My goal was to ensure that the recipes that I made in small containers would size up to the large 15 liter crocks that I had ordered. As I made each recipe in the large crock, I would take the samples and do the pH testing myself.
This is when things went awry. The pH meter arrived and did not work properly. I had to send it back and a week later I still haven’t received the new one. Then my computer crashed. I was not able to revive it so I turned it over to a higher power: our town IT technician. It took me a few days but I realized that I had my data saved onto a backup device and I could replace it on my husband’s computer. This is when I remembered that I had been using my laptop on the sofa and had not plugged in the backup device for several weeks. I easily restored my data onto my husband’s computer but was missing all the work I had done on costing out each recipe and some updates to my essays.
About this time, VDACS replied to my last correspondence with the words: “To reiterate, you may not manufacture and/or sell any of the sauerkraut recipes until they have been completely reviewed by a process authority. The use of sprouted nuts in your products must be replaced with unsprouted nuts until those products are evaluated by a process authority.”
Feeling rejected, I hoped that all was not lost. My objective was to sell the krauts at the Cape Charles Farmers Market. I remembered the so-called Pickle Law that was signed and sealed several years ago. It read: “4. Private homes where the resident processes and prepares pickles and other acidified vegetables that have an equilibrium pH value of 4.6 or lower if such products are (i) sold to an individual for his own consumption and not for resale; (ii) sold at the private home or at farmers markets; (iii) not offered for sale to be used in or offered for consumption in retail food establishments; (iv) not offered for sale over the Internet or in interstate commerce; (v) affixed with a label displaying the name, physical address, and telephone number of the person preparing the food product, the date the food product was processed, and the statement “NOT FOR RESALE — PROCESSED AND PREPARED WITHOUT STATE INSPECTION” shall be placed on the principal display panel; and (vi) not exceeding $3,000 in gross sales in a calendar year. Nothing in this subdivision shall create or diminish the authority of the Commissioner under § 3.2-5102;”
I replied to VDACS that I was invoking the Pickle Law. The supervisor quickly wrote back to inform me of my misguided intentions: “Fermented foods such as sauerkraut do not fall under the exemption below. I have also attached our FAQ document which specifically states these products do not fall under the exemption.”
Now I was really depressed. No pH meter, no computer, missing data, no Pickle Law, no Farmers Market, and 80 pounds of cabbage in the refrigerator. What else could go wrong? And wait a moment, aren’t my krauts a type of pickle? How can VDACS re-interpret the law into a document called Kitchen Bill FAQ that they create? In addition to being depressed I was getting angry.
I fired off an email to our State delegate Robert Bloxom, who is on the Agriculture Committee explaining the situation and asking the following questions:
1. Is the Kitchen Bill FAQ in fact regulation, or is it an attempt to limit the law?
2. Why has VDACS singled out fermented vegetables in particular? Is there a safety concern of which I am not aware?
3. How many instances of food poisoning has VDACS investigated and verified with traditionally fermented sauerkrauts?
4. Can you help me get to the Cape Charles Farmers Market while I work on acquiring a commercial kitchen and Virginia Tech approval?
This is where I stand at the end of April but this is not the end of my sad story. Stay tuned for a future essay on how it all turned out.