Requirements for Selling Food to Retail in South Dakota

Water Activity

Water activity is the partial vapor pressure of water in a substance divided by the standard state partial vapor pressure of water. This is frequently used as an indicator of pathogen growth in food. Although water activity can help predict things such as bacterial growth in food and spoilage caused by yeast and mold, it cannot be used to as a means to inactivate or destroy pathogens. Below, Table 1 shows how different organisms respond to differing water activity levels.

pH

pH is a scale used to determine the acidity or basicity of a product or solution on a scale of 1 to 14. Acidic solutions will have a higher concentration of H+ ions and will have a lower pH. Basic solutions will have a higher concentration of OH- and will have a higher pH. pH can be a very effective way to control the growth of pathogens in food. In some instances, such a low pH can actually create not only a bacteriostatic environment, or no growth, it can also create a bactericidal environment, or bacterial death. However, pH cannot always be considered a means to kill pathogens. Below, Table 1 shows how different organisms respond to differing pH levels.

Pathogens

The temperature, pH, water activity, atmosphere, presence of preservatives, food matrix, and much more can play a role in how a pathogen can survive and grow in any given food matrix. Table 1 is an illustration of the many factors that go into evaluating the growth and survival of pathogens in food. SDSU Extension and the SD DOH use such information about pathogens to help determine the food safety of products.

Time and Temperature

Time and temperature are also a hurdle technology to control, reduce, or eliminate pathogens to an acceptable level. The time and temperature needed to inactivate an organism can vary from food to food. Other characteristics can affect the time and temperature needed to inactivate an organism. For example, an organism with lower water activity may be more thermal resistance than if that same organism is in a product that has high water activity. Water activity, pH, the starting bio burden (initial micro load) can all impact the time and temperature necessary to inactivate pathogens. For this reason, it is important not to assume a time and temperature for a given product will apply to another product even if it is fairly similar.

Acidified Canned Foods

• Examples:
  • Salsa, dill pickles, dilled cauliflower.
• Guidance:
  • Must be reviewed and approved by a 3rd party processing authority according to law 34-18-36.
  • Obtain a SD food service license under the “Processor” category.
  • Labeled according to labeling law 34-18-37 and/or FDA Guidance.
  • Maintain all approved recipes/process(es) and any product testing documentation on file and available upon DOH inspection. Approved recipes are not to be altered or adapted in any way.
  • Provide a means to trace product using lot number or date code in event of recall/withdrawal.
  • These products must be processed out of a licensed kitchen.

Alcoholic Beverages (0.5% ABV alcohol by volume)

• Examples:
  • Beer, wine, possibly kombucha drinks.
• Regulatory Requirements:
  • South Dakota Dept. of Revenue alcohol licensing requirements. SD Dept of Revenue Alcohol License.

Barbeque Sauce and Similar Foods

• Guidance:
  • Obtain a SD food service license under the “Processor” category.
  • Labeled according to labeling law 34-18-37 and/or FDA Guidance.
  • Maintain all approved recipes/process(es) and any product testing documentation on file and available upon DOH inspection. Approved recipes are not to be altered or adapted in any way.
  • These products must be processed out of a licensed kitchen.
  • Provide a means to trace product using lot number or date code in event of recall/withdrawal.
  • Have the product tested for pH and evaluated for processing by SDSU.

Candies

• Examples:
  • Lollipops, candy canes, fudge, caramels, cotton candy, truffles, rock candy.
• Guidance:
  • Labeled according to labeling law 34-18-37 and/or FDA Guidance.
  • Provide a means to trace product using lot number or date code in event of recall/withdrawal.
  • Hard candies such as lollipops, candy canes, fudge, caramels, cotton candy, truffles, and rock candy have a low water activity, so no testing is required.
  • For chocolate covered fruits or other products such as cream-filled chocolates or fudge, the amount of moisture can vary so these foods should be tested for pH and water activity by the SDSU Food Safety Lab.

Canned, Shelf Stable Naturally High Acid Foods

• Examples:
  • Canned applesauce, canned fruits.
• Guidance:
  • Must be reviewed and approved by a 3rd party processing authority according to law 34-18-36.
  • Obtain a SD food service license under the “Processor” category.
  • Labeled according to labeling law 34-18-37 and/or FDA Guidance when sold.
  • Maintain all approved recipes/process(es) and any product testing documentation on file and available upon DOH inspection. Approved recipes are not to be altered or adapted in any way.
  • Provide a means to trace product using lot number or date code in event of recall/withdrawal.
  • These products must be processed out of a licensed kitchen.

Certain Cut Produce and Cut Herbs

• Examples:
  • Leafy greens (e.g. lettuce, cabbage), tomatoes, melons.
• Regulatory Requirements:
  • Obtain a SD food service license under the “Processor” category.
  • Labeled according to labeling law 34-18-37 and/or FDA Guidance (as applicable).
  • Maintain all approved recipes/process(es) and any product testing documentation on file and available upon DOH inspection. Approved recipes are not to be altered or adapted in any way.
  • Provide a means to trace product using lot number or date code in event of recall/withdrawal
  • These products must be processed out of a licensed kitchen.
  • Must be stored and sold ≤ 41F°.

Dairy Products; Milk

• Examples:
  • Milk, cheese, yogurt, etc. from cows, goats, other mammals.
• Regulatory Requirements:
  • Dairy products must be Pasteurized and processed at a manufacturing plant that has been licensed by the state of South Dakota Dept of Ag. Product should be labeled appropriately.

Dough

• Examples:
  • Refrigerated or frozen cookie dough, pizza dough, pie dough.
• Regulatory Requirements:
  • Obtain a SD food service license under the “Processor” category.
  • Labeled according to labeling law 34-18-37 and/or FDA Guidance.
  • Maintain all approved recipes/process(es) and any product testing documentation on file and available upon DOH inspection. Approved recipes are not to be altered or adapted in any way.
  • Provide a means to trace product using lot number or date code in event of recall/withdrawal.
  • Doughs must be processed out of a commercial kitchen and held at appropriate refrigeration and freezing temperatures when in storage or at point of sale.

Dry Baking Mixes

• Examples:
  • Cake mix, cookie mix.
• Guidance:
  • Labeled according to labeling law 34-18-37 and/or FDA Guidance.
  • Provide a means to trace product using lot number or date code in event of recall/withdrawal.
  • Low water activity product, but should consider including instructions not to eat raw.

Eggs

• Regulatory Requirements:
  • Labeled according to labeling law 34-18-37 and/or, USDA Guidance.
  • Provide a means to trace product using lot number or date code in event of recall/withdrawal.
  • Egg Dealer License and a Candler/Grader License must be obtained from the SD Dept of Agriculture on an annual basis.
  • Eggs must be labeled properly with producer, grade, and weight of egg, expiration date (which is 30 days from date of packing), and safe handling/preparation instructions: “To prevent illness from bacteria: keep refrigerated, cook eggs until firm, and cook foods containing eggs thoroughly.” Eggs must be sold at ≤45F°.

Fresh/Initial Cut (or Dried) Uncut Fruits, Vegetables, or Herbs (not cut beyond normal harvesting)

• Examples:
  • Beans, apples, tomatoes, cucumbers, strawberries.
• Guidance:
  • No Requirements.

Grain Products

• Examples:
  • Home-ground flour, cornmeal, popcorn, intact grain.
• Guidance:
  • Labeled according to labeling law 34-18-37 and/or FDA Guidance.
  • Provide a means to trace product using lot number or date code in event of recall/withdrawal.
  • Low water activity product, but should consider including instructions not to eat raw.

Home-Canned Fruit Jams and Jellies

• Examples:
  • Fruit jams and jellies.
• Guidance:
  • Must be reviewed and approved by a 3rd party processing authority according to law 34-18-36.
  • Obtain a SD food service license under the “Processor” category.
  • Labeled according to labeling law 34-18-37 and/or FDA Guidance.
  • Maintain all approved recipes/process(es) and any product testing documentation on file and available upon DOH inspection. Approved recipes are not to be altered or adapted in any way.
  • Provide a means to trace product using lot number or date code in event of recall/withdrawal.
  • These products must be processed out of a licensed kitchen.

Homemade Dried Pasta

• Examples:
  • Dried egg noodles
• Regulatory Requirements:
  • Obtain a SD food service license under the “Processor” category.
  • Labeled according to labeling law 34-18-37 and/or FDA Guidance.
  • Maintain all approved recipes/process(es) and any product testing documentation on file and available upon DOH inspection. Approved recipes are not to be altered or adapted in any way.
  • Provide a means to trace product using lot number or date code in event of recall/withdrawal
  • Must be processed out of a commercial kitchen.

Honey

• Regulatory Requirements:
  • Labeled according to labeling law 34-18-37 and/or FDA Guidance.
  • Provide a means to trace product using lot number or date code in event of recall/withdrawal.
  • State law (SDCL) 38-18 requires that all apiaries must be registered with the SD Dept of Ag. The vendor must be in compliance with all Apiary laws set forth by the SD Dept of Ag. The honey must be produced by bees kept by the vendor (Visit the SDDA Apiary Program website for more information).

Intact/Initial Cut Salad Greens (not cut beyond normal harvesting)

• Examples:
  • Mixed greens with only intact leaves, includes microgreens and shoots (not cut beyond normal harvesting practices).
• Guidance:
  • No Requirements.

Juice

• Examples:
  • Orange juice, apple juice
• Regulatory Requirements:
  • Obtain a SD food service license under the “Processor” category.
  • Labeled according to labeling law 34-18-37 and/or FDA Guidance.
  • Maintain all approved recipes/process(es) and any product testing documentation on file and available upon DOH inspection. Approved recipes are not to be altered or adapted in any way.
  • Provide a means to trace product using lot number or date code in event of recall/withdrawal.
  • Juice would need to be processed out of a commercial kitchen and consult SD DOH. See Selling Juice in South Dakota article.

Meat

• Examples:
  • Beef, sheep, goats, deer
• Regulatory Requirements:
  • Labeled according to labeling law 34-18-37 and/or FDA Guidance.
  • Maintain all approved recipes/process(es) and any product testing documentation on file and available upon DOH inspection. Approved recipes are not to be altered or adapted in any way.
  • Provide a means to trace product using lot number or date code in event of recall/withdrawal.
  • Must be processed at a SD State Inspected facility that has been approved by the South Dakota Animal Industry Board or by a federally inspected facility. The meat must be properly labeled and stored at appropriate refrigeration or frozen temperatures. See Regulatory Requirements for Selling Meats at Farmer’s Market.

Naturally Fermented Canned Foods

• Examples:
  • Sauerkraut, kimchi, Kombucha.
• Regulatory Requirements:
  • Obtain a SD food service license under the “Processor” category.
  • Labeled according to labeling law 34-18-37 and/or FDA Guidance.
  • Maintain all approved recipes/process(es) and any product testing documentation on file and available upon DOH inspection. Approved recipes are not to be altered or adapted in any way.
  • Provide a means to trace product using lot number or date code in event of recall/withdrawal.
  • Must be reviewed and approved by a 3rd party processing authority according to law 34-18-36.
  • These products must be processed out of a licensed kitchen.

Non-Temperature Controlled Baked Goods

• Examples:
  • Cookies, breads, cakes, cinnamon rolls, muffins, scones.
• Guidance:
  • Obtain a SD food service license under the “Processor” category.
  • Labeled according to labeling law 34-18-37 and/or FDA Guidance.
  • Provide a means to trace product using lot number or date code in event of recall/withdrawal.
  • These products must be processed out of a licensed kitchen.

Nut Butters

• Examples:
  • Almond nut butter, cashew nut butter, pecan nut butter
• Regulatory Requirements:
  • Obtain a SD food service license under the “Processor” category.
  • Labeled according to labeling law 34-18-37 and/or FDA Guidance.
  • Maintain all approved recipes/process(es) and any product testing documentation on file and available upon DOH inspection. Approved recipes are not to be altered or adapted in any way.
  • Provide a means to trace product using lot number or date code in event of recall/withdrawal.
  • These products must be processed out of a licensed kitchen.
  • Review of whether nuts are pasteurized and all other ingredients are considered Ready to Eat (RTE).
  • If nuts are raw but there is a thermal step, there needs to be a validated kill step either by literature or by a challenge study.
  • Test for water activity.

Peanuts, Nuts

• Examples:
  • Almonds, pecans, walnuts, cashews.
• Guidance:
  • Obtain a SD food service license under the “Processor” category.
  • Labeled according to labeling law 34-18-37 and/or FDA Guidance.
  • Maintain all approved recipes/process(es) and any product testing documentation on file and available upon DOH inspection. Approved recipes are not to be altered or adapted in any way.
  • Provide a means to trace product using lot number or date code in event of recall/withdrawal.
  • These products may need to be processed out of a licensed kitchen.
  • Consideration of how the raw commodity has been treated to ensure pathogens likely to occur in the environment are reduced, controlled, or eliminated to an acceptable level.

Poultry <20,000 birds/year

• Examples:
  • Chicken, duck, goose, turkey, etc.
• Regulatory Requirements:
  • Labeled according to labeling law 34-18-37 and/or FDA Guidance.
  • Provide a means to trace product using lot number or date code in event of recall/withdrawal.
  • Growers selling <20,000 birds/year must ensure that they meet all the criteria by the Package Labeling of Poultry processed under PPIA. Ensure compliance with FSIS and USDA.
  • The poultry must be processed out of a commercial kitchen and stored at proper refrigerated or freezing temperatures.
  • See the Selling Poultry at a Farmer’s Market in South Dakota article for more information.

Spices (Commercially Available Spices)

• Examples:
  • Nutmeg, cinnamon, cloves, turmeric, cumin, dry rubs.
• Guidance:
  • Provide a means to trace product using lot number or date code in event of recall/withdrawal.
  • Labeled according to labeling law 34-18-37 and/or FDA Guidance.

Sprouts

• Examples:
  • Alfalfa sprouts, bean sprouts
• Regulatory Requirements:
  • Requires SDDOH approval.

Temperature Controlled Baked goods

• Examples:
  • Cheesecake, cream filled cupcakes or donuts, cream cheese-based frostings or fillings, cream or meringue pies, custards, pumpkin pie.
• Regulatory Requirements:
  • Obtain a SD food service license under the “Processor” category.
  • Labeled according to labeling law 34-18-37 and/or FDA Guidance.
  • Maintain all approved recipes/process(es) and any product testing documentation on file and available upon DOH inspection. Approved recipes are not to be altered or adapted in any way.
  • Provide a means to trace product using lot number or date code in event of recall/withdrawal
  • These products must be processed out of a licensed kitchen and stored at appropriate refrigerated temperatures.