The Regulatory Landscape

Collaboration with regulators, not confrontation, is the recommended course of action for fermenters, experts suggest.

“Producers are speaking one language and regulators are speaking another,” says Abigail Snyder, assistant professor of microbial food safety at Cornell University. “Producers are like ‘Hey, this has been produced forever and it has a history of safe production!’ That’s not super meaningful for regulators. Regulators are used to this codified framework that is not necessarily built around fermented foods. There’s a middle ground.”

Snyder spoke with a panel of experts on health and safety regulations during TFA’s conference, FERMENTATION 2021. The consensus: food regulations exist to protect the consumer, but complying with myriad national, state and local laws can be difficult and frustrating to navigate, especially for a fermented food or beverage that utilizes novel food processes.

“Don’t be afraid, don’t feel like you’re going to tick off the inspector,” says Adam Inman, assistant program manager for the Kansas Department of Agriculture Food Safety & Lodging Program. He advises producers to always ask regulators for help. “Even if we start with your recipe and your process and we just document that, that can go a long way as a starting point.”

Jonathan Wheeler, coordinator for special processes at retail for the South Carolina Department of Health & Environmental Control, says if you’re dealing with a regulator unfamiliar with fermentation, ask for a supervisor. Wheeler manages South Carolina’s team of 80-90 regulators and points out that a health inspection should be an education opportunity for the regulator, too.

“We are partners on the same team, just in different roles,” Wheeler says. “Our approach in South Carolina has been driven by the need to educate as well as regulate. You have a voice, it’s part of collaboration and inspectors…are open to input [from producers].”

Still, compliance is not without its challenges. 

Soirée-Leone, writer, homesteader and local food advocate, says that food inspection is one of the biggest challenges for smaller producers — especially in rural areas, where resources can be limited. For example, in Tennessee where she lives, home-based food businesses can sell their goods at farmers markets, as long as those items don’t need to be refrigerated. But there’s no rule for food that needs to be frozen,, so producers are allowed by the health department to sell popsicles.

“It’s very challenging, and a lot of people get very frustrated in the process,” she says. 

Erin Leigh DiCaprio, assistant professor of cooperative extension at University of California, Davis, notes that regulations differ from state to state — a ferment produced under cottage food laws in one state could need a processed food license in another. She points out every state or county has an extension educator like herself who has the needed technical expertise to work with producers and regulators. DiCaprio specifically works with smaller-scale processors to navigate regulations in California. 

Could the U.S. learn from other countries?In Korea, Japan and China, fermented foods and drinks are common, yet regulations are minimal.

“There’s a cultural aspect there… not necessarily advocating eliminating regulations but saying that a culture — and no pun intended in this case — but a culture that’s been used to eating fermented foods for years and had no negative impact. Is there some education to be learned from that?” questions Neal Vitale, the moderator and executive director of TFA.

“We should not be as regulators in a position of trying to jam fermentation processes… into a mold where they all look the same — because they don’t,” Wheeler says. “Educate me as how you want that process to look.”

“Human civilization simply would not have been possible without fermented foods and beverages…we’re here today because fermented foods have been popular for humans for at least 10,000 years,” says Bob Hutkins, professor of food science at the University of Nebraska (and a recent addition to TFA’s Advisory Board). 

Hutkins was the opening keynote speaker at FERMENTATION 2021, The Fermentation Association’s first international conference. His presentation explored the history, definition and health benefits of fermented foods.  

Cultured History

The topic of fermentation extends to evolution, archaeology, science and even the larger food industry. 

“The discipline of microbiology began with fermentation, all the early microbiologists studied fermentation,” Hutkins says. 

Louis Pasteur patented his eponymous  process, developed to improve the quality of wine at Napoleon III’s request. The microbes studied back then — lactococcus, lactobacillus and saccharomyces — remain the most studied strains.

“What interested those early microbiologists — namely how to improve food and beverage fermentation, how to improve their productivity, their nutrition — are the very same things that interest 21st century fermentation scientists,” Hutkins says. 

Hutkins is the author of one of the books considered gospel in the industry, “Microbiology and Technology of Fermented Foods.” He says that fermented foods defined the food industry. In its early days, it was small-scale, traditional food production that “we call a craft industry now.” At the time, food safety wasn’t recognized as a microbiological problem.

Today’s modern food industry manufactures on a large-scale in high throughput factories withmany automated  processes. Food safety is a priority and highly regulated. And, thanks to developments in gene sequencing, many fermented products are made with starter cultures selected for their individual traits. 

“But I would say that there’s been kind of a merging between these traditional and modern approaches to manufacturing fermented foods, where we’re all concerned about time sensitivity, excluding contaminants, making sure that we have consistent quality, safety is a vital concern and extensive culture knowledge,” Hutkins says.

Defining & Demystifying

Fermentation — “the original shelf-life foods” — is experiencing a major moment. “Fermented foods in 2021 check all the topics” of popular food genres: artisanal, local, organic, natural, healthy, flavorful, sustainable, entrepreneurial, innovative, hip and holistic. “They continue to be one of the most popular food categories,” Hutkins continues.

Interest in fermentation is reaching beyond scientists, to nutritionists and clinicians. But Hutkins says he’s still surprised to learn how many professionals don’t understand fermentation. To address  the confusion, a panel of interdisciplinary scientists created a global definition of fermented foods in March 2021

“Fermentation was defined with these kind of geeky terms that I don’t know that they mean very much to anybody,” he says. 

The textbook biochemical definition of fermentation that a microbiologist learns in Biochemistry 101 doesn’t work for a nutritionist or clinician focusing on fermentation’s health benefits. The panel, which spent a year coming to a consensus, wanted a definition that would simply illustrate “raw food being converted by microbes into a fermented food.” The new definition, published in the the journal Nature and released in conjunction with the International Scientific Association for Probiotics and Prebiotics (ISAPP), reads: “Foods made through desired microbial growth and enzymatic conversions of food components.” 

Fermentation in 2022

Hutkins predicts 2022 will see more studies addressing whether there are clinical health benefits from eating fermented foods. The groundbreaking study on fermented foods at Stanford was important. It found that a diet high in fermented foods increases microbiome diversity, lowers inflammation, and improves immune response. But research like this is  expensive, so randomized control trials are few.

Fermented foods could also make their way into dietary guidelines.

“Fermented foods, including those that contain live microbes, should be included as part of a healthy diet,” Hutkins says.

Analyzing the microbiome of a fermented food will help manage product quality and identify the microbes that make up the microscopic life. Though diagnostic techniques are still developing, they’re getting cheaper and faster.

“Why should we measure the microbial composition of fermented foods? If you can make a great batch of kimchi or make awesome sourdough bread, who cares what microbes are there,” says Ben Wolfe, PhD, associate professor at Tufts University. “But when things go bad, which they do sometimes when you’re making a fermented food, having that microbial knowledge is essential so you can figure out if a microbe is the cause.” 

Wolfe and Maria Marco, PhD, professor at University of California, Davis, presented on Measuring and Monitoring Fermented Food Microbiomes during a TFA webinar. Both are members of the TFA Advisory Board. During the joint presentation, the two gave an overview on microbiome analysis techniques, such as culture-dependent and culture-independent approaches.

Measuring Microbial Composition

Wolfe says there are three reasons to measure the microbial composition of fermented foods: baseline knowledge, quality control and labelling details.

“Just telling you what is in that microbial black box that’s in your fermented food that can maybe be really useful for thinking about how you could potentially manipulate that system in the future,” he says.

What can you measure in a fermented food? First there’s structure, which can determine the number of species, abundance of microbes and the different types. And second is function, which can suggest how the food will taste, gauge how quickly it will acidify and help identify known quality issues. 

Studying these microorganisms — unseen by the naked eye — is done most successfully through plating in petri dishes. This technique was developed in the late 1800s

“This allowed us to study microorganisms at a single cell level to grow them in the laboratory and to really begin to understand them in depth,” Marco says. “This culture-based method, it remains the gold standard in microbiology today.”

However, there’s been a “plating bias since the development of the petri dish,” she says. Science has focused on only a select few microbes, “giving us a very narrow view of microbial life.” Fewer than 1% of all microbes on earth are known. 

The microbes in fermented foods and pathogens have been studied extensively.“Over these 150 years we have now a much better understanding of the processes needed to make fermented foods, not just which microbes are these but what is their metabolism and how does that metabolism change the food to give the specific sensory safety health properties of the final product,” she says

Marco and Wolfe both shared applications of these testing techniques from research at their respective universities.

Application: Olives

At UC Davis, Marco and her colleagues studied fermented olives. Using culture-based methods, they found that the microbial populations in the olives change over time. When the fruits are first submerged for fermentation, there’s a low number of lactic acid bacteria on them — but within 15 days, these microbes bloom to 10-100 million cells per gram.

Marco was called back to the same olive plant in 2008 because of a massive spoilage event. The olives smelled and tasted the same, but had lost their firmness.

Using a culture-independent method to further study what microbes were on the defective olives, she discovered a different microbiota than on normal ones, with more bacteria and yeast. 

The culprit was a yeast.“Fermented food spoilage caused by yeast is difficult to prevent,” Marco says. “New approaches are needed.”

Application: Sourdough

At Tufts, Wolfe was one of the leaders on a team of scientists from four different universities that studied 500 sourdough starters with an aim to determine microbial diversity. Starters from four continents were examined in the first sourdough study encompassing a large geographic region.

The research team identified a large diversity among the starters, attributed to acetic acid bacteria. They also found geography doesn’t influence sourdough flavor.

“Everyone talks about how San Francisco sourdough is the best, which it is really great, but in our study we found no evidence that that’s driven by some special community of microbes in San Francisco,” Wolfe said. “You can find the exact same sourdough biodiversity based on our microbiome sequencing in San Francisco that you can find here in Boston or you could find in France or in any part of the world, really.” 

Wolfe and Marco will return for another TFA webinar on July 14, Managing Microbiomes to Control Quality

Thanks to lactic acid — which kills harmful bacteria during fermentation — fermented foods are arguably among the safest foods that humans eat. But if critical errors are made, there is the  risk of food safety hazards.

“When we talk about fruit and vegetable ferments, there is a very long history of microbial safety with traditionally fermented fruits and vegetables,” says Erin DiCaprio, extension specialist at University of California, Davis, Department of Food Science and Technology. “While outbreaks associated with fermented fruits and vegetables are rare, vegetable and fruit fermentation is not without risk.”

DiCaprio, a food safety expert, detailed proper food safety protocols during a webinar for EATLAC, a UC Davis project putting scientific knowledge and research behind fermentation. DiCaprio shared two documented instances of fermented foods causing a foodborne illness, both from small-scale batches of kimchi. But she emphasized that, when all food safety concerns are mitigated, fermented foods do not pose a risk.

“From the food microbiology standpoint, bacteria really are the most important group of microorganisms because bacteria, certain types of bacteria, are a food safety concern,” she adds. “There are many different types of bacteria that contribute to food spoilage and, of course, there are specific types of bacteria that are used beneficially for fermentation.”

What happens during fermentation that makes food safe? Lactic acid bacteria are created, which convert sugars into lactic acid, acetic acid and CO2. Those antimicrobial compounds help fight off pathogens, competing with other microbes for nutrition sources.

Biological hazards — bacteria, viruses and parasites that can cause foodborne illnesses — are the biggest concerns. Botulism, E. coli and salmonella are the main hazards for fermented foods. Botulism can form in oxygen-free conditions if a fermentation is not successful and acid levels are too low. E. coli and salmonella form when sanitation practices are not followed.

“Commercially, when someone is developing a valid fermentation process, they are typically going to be looking to see that sufficient acid is produced during fermentation, to inactivate some of these acid tolerant (bacteria),” DiCaprio says. “Our traditional vegetable fermentations — things like fermented cucumber, sauerkraut, kimchi — they’ve all been shown to produce sufficient acid to inactivate the sugar toxin producing e-coli, so from a safety standpoint, sufficient acid production is the critical control point for ensuring the safety of a fermented fruit or vegetable. “

There are seven critical factors to keep a ferment safe:

  1. High-quality, raw ingredients. “If there are a high number of spoilage microorganisms to start with, it will be really difficult for the lactic acid bacteria to dominate the fermentation,” DiCaprio says.
  • Research-based recipe. Following a tested recipe ensures the proper balance of ingredients to keep the food safe.
  • Proper sanitation. Cleaning of all utensils and surfaces ensures no pathogens will contaminate the food. This mitigates cross-contamination risk, too.
  • Preparation of ingredients. Food particles should be uniform in size, either cut in small slices or shredded. Smaller pieces release more water and nutrients, promoting the growth of lactic acid bacteria.
  • Salt concentration. Lactic acid bacteria thrive in a salt brine. The key amount: anywhere from 1-15% salt brine by weight of the ferment.
  • Appropriate temperature. A temperature between 65-75 degrees fahrenheit is ideal to keep spoilage microorganisms at bay.
  • Adequate time. “It takes a while for significant acid to be produced, so be patient and follow the directions in the recipe,” DiCaprio advises. Most fruit and vegetable ferments take 3-6 weeks to be completed.

By August, any manufacturer labeling their fermented or hydrolyzed foods or ingredients “gluten-free” must prove that they contain no gluten, have never been through a process to remove gluten, all gluten cross-contact has been eliminated and there are measures in place to prevent gluten contamination in production.

The FDA list includes these foods: cheese, yogurt, vinegar, sauerkraut, pickles, green olives, beers, wine and hydrolyzed plant proteins. This category would also include food derived from fermented or hydrolyzed ingredients, such as chocolate made from fermented cocoa beans or a snack using olives.

Read more (JD Supra Legal News

Every year, the nation’s 50 state legislatures pass dozens of new laws that have an impact on fermenters. For example, some states amended alcohol laws to allow drink sampling for craft wineries, while others repealed outdated cottage food laws to help small producers operate and more loosened take-out restrictions to help small restaurants survive the pandemic. 

Indicative of this year’s focus on the pandemic, laws were introduced but never debated  as lawmakers focused on more pressing issues surrounding the coronavirus. The most common new laws passed in 2020 revolved around helping businesses survive — states called special sessions to aid restaurants, stop price gouging of high-demand products and provide emergency grants to small businesses. 

Read on for key food, beverage and food service laws passed this year, most taking effect in 2021.

California 

AB82 — Prohibits an establishment with an alcohol license from employing an alcohol server without a valid alcohol server certification.

AB3139 — Establishments with alcoholic beverages licenses who had premises destroyed by fire or “any act of God or other force beyond the control of the licensee” can still carry on business at a location within 1,000 feet of the destroyed premise for up to 180 days.

Delaware 

HB 237 — Eliminates old requirements that movie theaters selling alcohol must have video cameras in each theater, and that an employee must pass through each theater during a movie showing.

HB275 — Permits beer gardens to allow leashed dogs on licensed outdoor patios.

HB349 — Permits any restaurant, brewpub, tavern or taproom with a valid on-premise license to sell alcoholic beverages for take-out or drive through food service, so long as the cost for the alcohol did not exceed 40% of the establishment’s total sales transactions. 

Hawaii

SR84 — Creates a Restaurant Reopening Task Force to help restaurants in Hawaii safely reopen that were closed during the COVID-19 pandemic. 

SR94 — Urges restaurants to adopt recommended best practices and safety guidelines developed by the United States Food and Drug Administration and National Restaurant Association in response to the COVID-19 pandemic.

Idaho

HB343 — Amends existing law to require licensing to store and handle wine as a  wine warehouse.

HB575 — Allows sampling of alcohol products at liquor stores, which was formerly forbidden under law.

SB1223 — Eliminates obsolete restrictions on food products, to match federal standards. It repeals requiring extra labels on some imported food products, and repeals using enriched flour in bread baking. 

Illinois

HB2682 — Amends Liquor Control Act of 1934. Allows a cocktail or mixed drink placed in a sealed container at the retail location to be sold for off-premises consumption if specified requirements are met. Prohibits third-party delivery services from delivering cocktails or mixed drinks. 

HB4623 — Amends Food Handling Regulation Enforcement Act, regulating that public health departments provide a certificate for cottage food operations, which must be displayed at all events where the licensee’s food is being sold.

Iowa

HB2238 — Amends code regarding food stands operated by a minor. Bans a municipality from enforcing a license permit or fee for a minor under the age of 18 to sell or distribute food at a food stand.

Kentucky

HB420 — Implements Food Safety Modernization Act, authorizing a department representative to enter a covered farm or farm eligible for inspection.

SB99 — Amends alcohol laws for state’s distillers, brewers and small wineries. Eliminates the sunset on local precinct elections to grant distilleries, and allows distillers to sell other distiller’s products.

Louisiana

HR17 — Allows third-party delivery services to deliver alcohol. 

HB136 — Makes adulterating a food product by intentional contamination a crime.

SB455 — Increases the size of containers of high-alcoholic beverages.

SB508 — Gives restaurants protection from lawsuits involving COVID-19. The public will be unable to sue restaurants for COVID-19-related deaths or injuries, as long as the restaurant complies with state, federal and local regulations about the virus. 

Maine

LD1167 — Encourages state institutions to serve Maine food and Maine food products, increasing the visibility of the state’s local food producers. 

LD1884 — Amends current laws regarding businesses that hold dual liquor licenses, which authorized retailers to sell wine for consumption both on- and off-premise. Retailers with the dual license can now sell with just one employee at least 21 years of age present, and adds that wine can be sold for take-out if food is part of the transaction.

Maryland

HB1017 — Allows cottage food businesses to put their phone number and business ID on their food label, rather than their address as currently required by the Maryland Department of Health.

SB118 — Expands definition of “alcohol production” and “agricultural alcohol production.” The new definitions aim to give Maryland farmers and producers the ability to sell beer, wine and spirits to increase agritourism.

Massachusetts

SB2812 — Expands alcohol take-out and delivery options during COVID-19 pandemic. Allows restaurants to sell mixed drinks in sealed containers alongside other take-out and delivery food orders.

Michigan

HB5343 — Revises regulations on brewpubs and microbreweries, increasing the quantity of beer a microbrewer is permitted to deliver to a retailer during a year from 1,000 barrels to 2,000 barrels. 

HB5345 — Amends the Michigan Liquor Control Code to delete the Michigan Liquor Control Commission (MLCC) $6.30 tax levied on each barrel of beer manufactured and sold in Michigan.

HB5354 — Amends the Michigan Liquor Control Code to delete the requirement that a brewpub cannot sell beer in Michigan unless it provides for each brand or type of beer sold a label that truthfully describes the content of each container.

SB711 — Establishes new limited production brewer license for microbreweries at cost of $1,000 for license.

HB5356 — Amends the Michigan Liquor Control Code to ban the required $13.50 cent-per-liter tax on all wine containing 16% or less of alcohol by volume sold in Michigan.

Minnesota

HB5 — Authorizes emergency, small-business grants and loan funding for businesses affected by COVID-19.

HB4599 — Extends period of mediation for Minnesota farmers suffering economic difficulties to keep their farm.

Mississippi

HB326 — Amends outdated code to increase the maximum annual gross sales for a cottage food operation (from $20,000 to $35,000) before the producer would need to pay food establishment permit fees. Authorizes a cottage food operation to advertise products over the internet. 

New Jersey

AB2371 — Requires large generators of food waste (like restaurants and supermarkets) to recycle food garbage rather than send it to incinerators or landfills. 

AB3865 — Limits return of food from retail food stores during a public emergency.

SB864 — Prohibits sale of single-use plastic carryout bags, single-use paper carryout bags and polystyrene foam food service products, and limits single-use plastic straws. 

SB1591 — Allows alcoholic beverages to be consumed from open containers in the Atlantic City Tourism District. 

SB2437 — Limits service fees charged to restaurants by third-party food takeout and delivery applications during COVID-19 pandemic.

New Mexico

SB3 — Enacts the Small Business Recovery Act of 2020, which provides loans for small businesses suffering during the coronavirus pandemic. 

New York

SB8225 — Authorizes issuing a retail license for on-premise consumption of food and beverage within 200 feet of a church, synagogue or other place of worship. 

AB8956 — Allows a licensed brewery or farm brewery to provide no more than four beer samples not exceeding four fluid ounces each. 

SB1472 — Requires hospitals to offer plant-based food options to patients upon request.

SB7013 — Authorizes the manufacture and sale of ice cream or other frozen desserts made with liquor.

North Carolina

SB290 — The Alcoholic Beverage Control Regulatory Reform Bills, it allows distilleries the same serving privileges as wineries and craft breweries and reduces regulation on out-of-state sales.

Ohio

HB160 — Aid for the restaurant industry to recover from COVID-19 pandemic, the bill doubles the maximum number of Designated Outdoor Refreshment Areas (DORAs) that can be created in a municipality or township. Also allows Ohio’s small wineries to sell prepackaged food without regulation from the Ohio Department of Agriculture, creates bottle limits for micro-distilleries and permits license holders to sell alcoholic ice cream.

South Carolina

HB4963 — Amends state alcohol code, allows licensed retailers to give wine samples in excess of 16% alcohol, cordials or distilled spirits, as long as they don’t exceed a total of three liters a year.

SB993 — Amends state alcohol code to allow a permitted winery to be eligible for a special permit to sell wine at off-premise events. Also increases the amount of beer a brewery can sell to an individual per day for off-premise consumption.

South Dakota

HB1073 — Authorize special event alcohol licenses for full-service restaurant licensees.

HB1081 — Allows colleges to teach brewing beer and wine classes on South Dakota campuses to students age 21 or older. Brewing must be held off campus as the education institution is not deemed a licensed manufacturer.  Any distilled spirits, malt beverage, or wine produced under this section may only be consumed for classroom instruction or research and may not be donated or sold. 

Tennessee

SB2423 — Allows alcohol sales at the Memphis Zoo.

SB1123 — Encourages farmers who produce raw milk to complete a safe milk-handling course. 

Utah

HB134 — Legalizes the sale of raw butter and raw cream in Utah;

HB232 — An agri-tourism bill that allows farms and ranches to host events that include food that would not need to be prepared in a commercial kitchen. Farmers must apply for a food establishment permit to use their private home kitchen.

HB399 — Changes to the Alcohol Beverage Control Act, prohibits advertising that promotes the intoxicating effects of alcohol or emphasizes the high alcohol content of an alcoholic product.

HB5010 — The COVID-19 Cultural Assistance Grant Program, which appropriates $62 million for struggling arts, cultural and recreational organizations and businesses across the state. 

HB6006 — In response to the coronavirus pandemic, the bill amends the Alcohol Beverage Control Act, delaying the expiration date of the retail licenses set to expire in 2020 for places selling alcohol. Also permits alcoholic beverage licensees at international airports to change locations if needed.  

Vermont

SB351 —  A coronavirus relief bill which authorizes $36 million for agriculture and forestry sectors.  

Washington

HB2217 — An update to Cottage Food Law eliminates the requirement that a home address must be put on a food label. 

HB2412 — Increases amount of additional retail licenses for a domestic brewery or microbrewery from two to four, and directs health department to adopt rules allowing brewery owners to allow dogs on brewery premise

SB5006 — Allows sale of wine by microbrewery license holders.

SB5323 — A bill eliminating single-use, plastic carry-out bags

SB5549 — Modernizing resident distillery marketing and sales restrictions. Allows distilleries to sell products off-premise, similar to breweries and wineries. 

SB6091 — Continues work on the Washington Food Policy Forum, including support for small farms and increasing the availability of food grown in the state.

West Virginia

HB4388 — Removes outdated restrictions on alcohol advertising, limiting the Alcohol Beverage Control Commissioner’s authority to restrict advertising in certain advertising mediums, such as at sporting events and highway billboards. 

HB4524 — Making the entire state “wet,” permitting the off-premises sale of alcoholic liquors in every county and municipality in the state.

HB4560 — Permits licensed wine specialty shops to sell wine with a gift basket by telephonic, electronic, mobile or web-based wine ordering. Establishes requirements for lawful delivery.

HB 4697 — Removes restriction that a mini-distillery use raw agricultural products originating on the same premises

HB4882 — Allows unlicensed wineries not currently licensed or located in West Virginia to provide limited sampling and temporary, limited sales for off-premise consumption at fairs, festivals and one-day nonprofit events “in hopes that such wineries would eventually obtain a permanent winery or farm winery license in West Virginia.”

Wisconsin

HB1038 — Bans customers from returning food items during a health pandemic or emergency, dissuading people from stocking up on too many supplies.

SB83 — Increases sales volume of alcohol by retail stores from four liters per transaction to any quantity.  

SB170 — Allows minors to operate temporary food stands without a permit or license.

Wyoming

HB82 — Authorizes a microbrewery to operate at more than one location. The local licensing authority may require the payment of an additional permit fee not to exceed $100.00.

HB84 — Authorizes the sale of certain homemade food items that do not require time or temperature control. These include but are not limited to: 

but is not limited to, jams, uncut fruits and vegetables, pickled vegetables, hard candies, fudge, nut mixes, granola, dry soup mixes excluding meat based soup mixes, coffee beans, popcorn and baked goods that do not include dairy or meat frosting or filling or other potentially hazardous frosting or filling;

“non-potentially hazardous” (no dairy, quiches, pizzas, frozen doughs, foods that require refrigeration and cooked meat, cooked vegetables and cooked beans). Allows someone other than the producer to sell the food, as long as food is not sold in a retail location or grocery store where similar food items are displayed or sold. Food must be labeled with “food was made in a home kitchen, is not regulated or inspected and may contain allergens.”

HB158 — Allows microbreweries to make malt beverages at multiple locations rather than one as deemed in current law.

Introduction to HACCP

Creating a HACCP plan — a management system to control food preparation risk — can overwhelm food producers. But Charlie Kalish, food safety consultant and trainer, emphasizes HACCP (Hazard Analysis Critical Control Points) is  vital  to food safety.

“This is just as important as trying to understand, when I ferment things, why do I ferment? What are the things that get you excited about why you get the flavors that you get or the textures that you get (when you ferment)? The food safety thing, it’s really going to help you in the long run if you approach it with the same excitement because, if you don’t, it’s going to be a lot of work and it will drag you down,” Kalish says during the recent TFA webinar Introduction to HACCP. “I see a lot of people get bitter about (HACCP). ‘It’s such a drain on my resources and what I do!’ But it can help your product get better, it can help you get into new markets. And it is a different language, a different world. Even if you’re not going to get a PhD to understand the basic science underlying the mechanisms, having a strong control of HACCP, food safety, what the expectations are, it’s really going to help you.”

HACCP was originally created for the space program in the ‘60s. NASA needed a high level of assurance that food was going to be safe during missions in space, but traditional food models did not have enough preventive food safety controls. That plan was later adopted by the USDA and FDA to regulate food products. 

“HACCP shifted the focus away from recalling food and trying to do damage control with outbreaks to preventing those things from happening in the first place,” Kalish says. “HACCP, in summary, is a systematic approach where we consider all of our ingredients, we consider every process step from when we receive our raw materials or ingredients all the way to the shipping out of our final product, it considers all reasonable and foreseeable hazards.”

Kalish points out HACCP controls for things with a high probability of occuring, like an E. Coli outbreak in lightly fermented food. And a good  HACCP plan begins with a solid foundation, basic practices like regular hand washing, sanitizing surfaces and maintaining a comprehensive food safety employee training program.

“Common sense is an excellent guide to get you started for food safety, but I would further suggest to learn as much as you can: the science of the system you’re working with, the microbiology, pH, what it is, how you measure it,” says Fred Breidt, PhD, a microbiologist with the Agriculture Research Division of the USDA. Breidt joined Kalish during the webinar along with moderator Dave Ehreth, president of Sonoma Brinery; both are TFA advisory board members.

Luckily for fermenters, fermentation is a critical control point. In one study on kimchi by Breidt and his USDA colleagues, they found pH level is critical for food safety, a factor controlled by fermentation.

Though the internet can be a wonderful resource to find information on food safety, “you have to be judicious about your sources,” Breidt says. Kalish says to look for guidance from government  sources, scientific literature, process authorities, university extension specialists, industry groups and publications or consultants.

Food producers need to budget for HACCP in their financial plan, Kalish advises. Ehreth agrees, and encourages producers still unsure of the process to pay a professional for help “to understand what potential biological hazards could be in that jar of food.”

“The modern food manufacturer is not only a food manufacturer, he is a protector and is entering into a bond of trust with his customers. And that bond of trust says ‘If you buy what I make, you’re not going to die as a result,” Ehreth adds. Though he notes it sounds like extreme advice, it’s a necessity for food producers to keep that creed at the forefront of their production.

There’s a void in scientific knowledge of fermented and pickled vegetables, and scientists are just starting to scratch the surface.

“We have a wealth of chemical compositions that we still don’t fully understand,” says Dr. Ilenyz Pérez-Díaz, PhD, a microbiologist with the USDA-ARS. Perez-Diaz presented on “Development of Pickling Technologies & Products” during a webinar hosted by TFA. “I honestly think there is still a lot to do in regards to the richness of the biological functions that are present in these systems. Every vegetable is different. … It will be fantastic to be able to comprehensively understand what’s really there and how we can use it for the benefit of not only processing but also for the benefit of human health.” 

The purpose of the USDA-ARS is to find solutions for agricultural challenges, domestically and globally. In 2019, the 8,000 employees of the USDA-ARS researched 660 agricultural projects, filed 85 new patents, issued 65 new patents, received 51 new licenses and wrote 3,816 peer-reviewed journal articles. 

Pérez-Díaz is assigned to the food science and market quality and handling research unit. There the team develops state-of-the-art, science-backed methods that improve the post-harvest processes, food preservation, food quality and safety and, ultimately, introducing nutritious products into the food system. 

“What I love about the research that she’s doing is that pickling and fermentation are these ancient, traditional technologies that people have been using for hundreds and hundreds of years, and she’s really thinking about ways that we can advance those technologies using all the amazing sequencing and all the microbiology we have today,” says Ben Wolfe, PhD,  associate professor of biology at Tufts University, and the TFA Advisory Board member who moderated the webinar. 

Pérez-Díaz shared the USDA’s latest technologies to reduce food waste, lessen environmental impacts, improve water/energy demand and add more health value to preserved vegetables. Here are highlights from the research presented, focused on addressing two key problems:

Eliminate Salt in Cucumber Fermentation

PROBLEM: Sodium chloride is essential to fermentation, but the salt-rich (and sometimes preservative-filled) brine shipped from overseas producers can get into local freshwater supplies. There are no growers of small cucumbers (gherkins) in the U.S., so food projects that require small cucumbers must use overseas produce. But, in order for the cucumbers to be transported, they must be fermented or pickled. High amounts of salt, acid and sometimes preservatives are added, and these potentially can damage the water supply.

SOLUTION: USDA-ARS tested fermenting pickles using three popular spices: dill, cinnamon and mustard seed. But, though salt was reduced or eliminated, “the indigenious microbiota is always there,” Pérez-Díaz explains. “The salt is modulating the activity within this population. It tends to favor the lactic acid bacteria. But what I’ve learned is it is not the main factor modulating that microbiota. The ph and the production of that lactic acid and or acetic acid is really the factor in excluding the non desirable microorganisms and favoring the fermentative microbiota.” 

Reduce Food Waste by Creating Foods

PROBLEM: In the U.S., between 30-70% of fresh vegetable produce is wasted. “Those are alarming numbers,” says Pérez-Díaz. “Even though they are estimates, it is necessary to look at ways to resolve the impact of such waste.”

SOLUTION: The USDA developed small-scale fermentation systems for use in restaurants, farmer’s markets and grocery stores. These vessels make fermenting excess food more manageable by allowing easy fermentation of smaller batches. 

“We can  convert what was waste or surplus or defective vegetables into a value-added product,”  Pérez-Díaz says. “It will be a probiotic product, it will be fermented vegetables auxiliaries that can be used as sources of flavor, colors, ingredients in a number of recipes or even dehydrated for different applications.”  [This project was near completion before the pandemic and is expected to pick-up soon.]

Fermentation, she emphasized, is needed to sustain a modern food system.

“These fermentations, if applied properly, they are very powerful eliminating the organisms that are not desirable or the organisms that are not of health significance,” Pérez-Díaz says. “I think fermentation will truly be an important component as we move forward to that new era.” 

Just because vegetables were fermented does not make them immune to harmful bacteria like E. coli. Though fermentation improves food safety, the quality of the raw vegetable before it’s fermented is extremely important. 

“The issue of fermentation safety is one that comes up a lot. People are getting excited about the fermentation world these days, fermentation is increasing in popularity…(but) the wheels can fall off if you’re not careful,” says Fred Breidt, PhD, a USDA microbiologist. Breidt spoke during a recent webinar hosted by The Fermentation Association, “The Science Behind the Safety of Fermented Vegetables.” “The moral of the story: if the vegetables were safe to eat before you ferment them, they’re going to be safe to eat after you ferment them. If they’re not, you’ve got to ferment them for a long time to make sure they’re safe.”

An outbreak of dangerous bacteria in fermented vegetables, “it’s going to be pretty rare that that happens,” Breidt stresses. But, without proper sanitation protocol and vegetable quality control, pathogenic “bad guys” can flourish, like E. coli, salmonella and listeria. E. coli is more common in vegetables because it’s extremely acid resistant, and can survive for long periods of time at low pH levels and cold temperatures. 

“Just washing the surface (of the vegetable) isn’t always going to do the trick,” Breidt says. “You don’t have to eat very much to get sick.”

An E. coli outbreak in kimchi made 230 Korean school children sick in 2013. The children, from seven different schools, all ate fermented kimchi made by the same manufacturer.

“If the folks had eaten the cabbage that this kimchi was made out of, they would have gotten sick as well,” Breidt says. “Was the cabbage improved in the sense of maybe it had fewer E. coli on it because of fermentation? Yes. But there was still enough when this was eaten to make a lot of people sick.”

“You can’t rely on salt for safety is the point,” he adds. “It does encourage the lactic acid bacteria and it helps them grow and it will increase overall the safety of your fermentation.”

David Ehreth, president and founder of Alexander Valley Gourmet, parent company of Sonoma Brinery, moderated the webinar. Ehreth first met Breidt when Sonoma Brinery made a few tons of sauerkraut that became infected with yeast. Ehreth says “I called Ghostbusters, and that’s Fred Breidt.” Though yeast is different from a pathogen like E. coli, Ehreth said Sonoma Brinery has managed to control yeast over the years by careful management of production techniques and improved sanitation methods.

To the food and drink industry, regulators can sometimes feel like “the bad guys.” But to scale a fermentation brand, sell artisanal products at a farmers market, or serve dishes with fermented ingredients in a restaurant, producers need regulators to be friends or colleagues, says Jeremy Umansky, owner of Larder Deli and author of “Koji Alchemy.”  

“As a fermented food producer, it’s a frustrating and almost difficult, like an intimidatingly difficult place to be in. Because there’s really no great resources of where to start, how to get going, how to do what you’re going to do in the safest manner possible while also maintaining a specific quality standard which is so important for us,” says Umansky. “We need to have open, honest conversation (with regulators). If your local regulators aren’t willing to work with you or just want to shut it down because they don’t understand, go up to the next level. Go up to the county, to your state or even reach out to federal. Because people are producing these foods all over the country, so there is regulation for them.”

Umansky spoke with Drew Anderson, CEO of Cleveland Kitchen, during a Fermentation Association webinar titled “Coping with Regulations (and Regulators).”

When Anderson started Cleveland Kitchen with his brother and brother-in-law, “the regulators didn’t really know how to handle fermented food.” They decided to become close with their representative from the Ohio Department of Agriculture and call her first when they moved to bigger facilities or added onto the facility. “She is fantastic. You involve the regulators into your process.”

“You’ve got to understand, when (regulators) go out, they know people don’t like them, they know they’re the enemy when they walk in that kitchen,” Anderson adds. “So if it’s a pleasure to work with you and they can see that they’re actually helping someone, that always helps. Food is still a people business. I think it’s important to be close.”

“It’s funny because the human race has been doing this for thousands of years and we never worried about it before. But now, in this modern age, everything has to be pasteurized.”

Fermenting was common in America before the 1920s, when electricity and refrigeration became a standard in homes. Today, with current food safety laws, “our regulation is more or less a mess,” Umansky notes.

“Anywhere you go in the world, for the most part, fermented foods are the crux at the root of any cuisine,” Umanksy says. “People have relied on these foods and the methods of making them for so, so long. And it’s interesting now that we have so much fear and intimidation and kind of unknowing about (fermented food) production and how they’re made and if they’re safe or not when we’ve kind of proven that society would not  exist as it does if it weren’t for these foods prior to refrigeration.”

Both Cleveland Kitchen and Umansky’s Larder Deli are based in Cleveland. However, because Larder and Cleveland Kitchen produce and sell fermented foods differently, they are regulated by different associations. Larder is overseen by the city health department, and Cleveland Kitchen is overseen by the state health department.

“From locale to locale and oversight body to oversight body, things are different,” he says. “We’re both producing fermented foods, but because of how we’re producing them, where we’re producing them, and where we’re selling them, we have different sets of regulations. Same foods, different sets of regulations. And when you talk to different people, you get different answers.”

“Where is the regulation? It’s a mess. It’s almost impossible to keep up on it,” Umansky says.

There is not a standardized food code in all 50 U.S. states. Rules for retail food production varies from cities, counties and states. At the extreme opposite is Japan, where open-air food markets sell fermented foods with little government oversight over food producers.

“We have to be able to address this issue of there not being cohesion and they’re not being easily accessible information for those of us producing these types of food,” Umansky says. “It begs the question – why haven’t we taken a model from the Japanese or the Chinese? Or Scandinavian cuisine is very, very fermentation forward, Eastern European cuisine. Why haven’t we looked at their regulations?”

HACCP is another regulation setback for fermented food and drink producers. Hazard Analysis Critical Control Points (HACCP) are required plans that monitor food safety. But HACCP requires producers to make one thing the same way all the time. There is no room for variances in ingredients. It works for big, commercial producers.

“For smaller restaurants and craft producers, it’s essentially improbable,” Umansky says.

If there’s a menu change at a restaurant or a new ingredient source for a craft producer, technically a new HACCP plan is required.

Umansky recommends, when filing a HACCP, producers should pick one thing on the menu that will never change or that is always in stock. At Larder, it’s the pastrami sandwich with sauerkraut. Then, when it’s time to meet with a regulator, request someone familiar with craft food and come prepared with a HACCP covering the unchanged menu dish or stocked item.

“Your regulators will be so socked that you’ve already taken that step and they haven’t had to have this conversation with you,” he said. “The great thing is, in non-pasteurized fermented foods, I don’t even think there’s any reported cases of botulism associated with fermented foods. It can’t survive. There’s salt and acid.”

Check out the full video link here.