KAREN GAY: Starting a Small Business in Virginia: The Regulations – Part 1

Author Note: This is the third in a series of weekly essays about starting a small food business in Virginia. This article was written in March, 2016. Future essays will discuss the Bars and Cookies I am making, 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.

Having travelled to Richmond to lobby for the Virginia Food Freedom effort I was apprehensive about navigating the deep waters of regulations for home food operations. The Virginia Department of Agriculture and Consumer Services (VDACS) is the Virginia governmental organization that is responsible for consumer safety for home and commercial kitchen-based businesses and food service vendors. I found their web-site easy to read and walk through. Reading through the 13 page application (most of which is explanation and examples) I quickly discovered a paragraph that referenced acidified foods. having researched sauerkrauts extensively I knew that their pH is about 4.6 which registers as an acid food. Figuring that my krauts were acidified, I read on through these instructions learning that I need to get my sauerkraut-making process approved by a competent processing authority. Then I read “if your products are deemed acidified then you must attend a Better Process Control School for certification.” Uh oh. What’s a competent processing authority and the Better Process Control School?

The application informed me that Virginia Tech is a processing authority and gave me that name of someone to contact. Then I researched the Better Process Control School and discovered that these are schools that provide training for the processed food industry. Hmmm, I didn’t think of my food as processed. As I read on I learned that these schools are sponsored by the Grocery Manufacturers Association (GMA) and there are 24 schools in the US mainland. The closed schools were Clemson, in South Carolina or Penn State, in State College PA. At the time I researched this, only one school had an online course, and it was University of California, Davis. I quickly discovered that this course cost $400. Sighing, I signed up for the course and in short order received a text book and instructions.

I decided to read ahead and when I arrived at Chapter 3, Principles of Acidified Foods, I read: “Of course, it is not necessary to allow foods to ferment in order to preserve them. The same preservative effect can be achieved by adding acids, such as vinegar, to low-acid ingredients, such as vegetables. These products are called acidified or acidified low-acid foods.” So I wondered, do I need to take this course?

Given that I had already purchased the course, I decided to complete the course. In Chapter 3 I learned that acidified foods are low-acid foods (generally vegetables with a pH above 4.8, which excludes citrus fruit and some tomatoes) to which an acid solution (vinegar or citric acid) is added. There is also a more obscure component to this which involves water weight. Turns out that the professor completed her PhD on fermented foods and unequivocally stated that fermented foods are not considered acidified foods. At that point, I felt disheartened that I had spent an unnecessary $400. However, I completed the course and was happy I did, if only for the acidified foods section in which there was a thorough discussion of botulinum spores. It seems that adding the salt to the cabbage creates a lacto-fermentation process that lowers the pH of the kraut to the point where pathogenic bacteria cannot survive. But, if something occurred to the kraut that raised the pH above 4.6, then botulinum spores could find a favorable environment and bloom. This drove home to me that I will need to test the pH of all of my krauts to make sure they are safe. This course was talking mostly about products like pasteurized canned tomatoes and pickles, but it seemed to me as if my products could be vulnerable also. I determined to speak to the VDACS manager as soon as I submitted my paperwork to understand the risks. It also occurred to me that the botulinum spores come in to the sauerkraut via the vegetables. Oddly, my products must be tested on the offhand chance that the environment is not acid enough, but vegetables which could carry the toxin are not required to be tested.

As I had developed seven kraut recipes I set about completing the paperwork. In all, it took me two full days. Here are the steps that I completed:

1. A diagram of food processing and storage areas.
2. A Product Information Sheet for each product I plan to make. This Sheet includes the recipe, the process to make the recipe, label ingredient list in order of weight and potential allergens.
3. A list of all products and planned method and place of distribution.
4. A list of all ingredients and where they will be purchased.
5. A mocked-up copy of each product label.

I also learned that because I have a small business that there is an exemption from nutritional labeling because my annual retail gross sales are less than $500,000 and my sales to consumers are less than $50,000. If I advertise any nutritional content claim, like “low-fat”, then I can’t claim the exemption. So even though my krauts are low-fat, probiotic, gluten free, and vegan I probably won’t be able to label them as such.

This is where I stand as of the middle of March. I sent the electronic package to VDACS on March 9 th . I will call them today to see how much longer I need to wait. What are my thoughts today on what I’ve gone through? I feel that the VDACS online application package for home operations was well explained and documented. I do think that having to weigh each and every ingredient was too time-consuming for the small sales I expect to generate. Having to list and relist the ingredients in multiple formats is over-reach. I am able to do this because I have great computer skills and was able to submit the entire package electronically. This process discriminates against people who have less advantages and my not be able to operate a computer and document their process. I still firmly believe that person to person sales should not be regulated. However, I have learned quite a bit during this process and I think that VDACS should remove the regulatory requirement for home operations, but provide an advanced tier of regulation that might involve the process I went through. This advanced tier might allow me to provide a statement on my products like “Home produced under supervision of VDACS.” This way, consumers could make a choice to buy an uninspected product from their neighbor, or from me, with my additional regulatory accomplishments.

A later article will tell all about how long it takes to get the package reviewed and approved, and what other hurdles my small business must leap over to get up and running.