Jay Wheeler wants to make you pickles. He even wears an AstroTurf green shirt that has “I’m a man and I can” printed above a drawing of a stylized mason jar. “Hot garlicky dill pickles have been made by generations of my family and I want to share those,” he tells me, as he re-pots tomato plants into larger Styrofoam cups. We are sitting in the balmy greenhouse at the Red Tractor Farm discussing city, county, and federal policy as it relates to farmers developing products like jam and pickles. “These pickles taste incredible—not like the Vlassic with that flat vinegar-salty flavor. These have layers of flavor. Garlicky, hot, with apple cider vinegar,” he mashes the soil around the tomato plant to make his point. 

Jay grew up in Durango in a house with an oversized back porch outfitted with an outdoor kitchen designed for mass production.Stoves, freezers, refrigerators, and tables were all set to efficiently produce chow-chow, pickled beets, sauerkraut, gooseberry jam, chokecherry jam, green and red chile, and even ravioli. Each item was made in season by a rotating cast of women. Beena Huffman came for ravioli and Pita Gomez came for chile. There was lots of talking but there was also a seriousness to the work, with exclamations like, “Oh no, Myrna, don’t do it that way!” and careful attention to the craft of food preservation. It was hot work, sweat circles collected under the apron, but come dinner the family savored thin cuts of roast beef that had been bubbled to perfection under the broiler and wrapped around garlicky dill pickles. 

The preserves Jay’s family and friends made were not sold; everyone went home with a batch to share with their families. The integrity of the product depended on the integrity of the canning process.  However, if they had sold a jar to someone it would have been an easy transaction; money for food. It was not until 1973 that the federal government developed strict regulations for low-acid foods after botulism outbreaks from canned foods.

These days if you want to make and sell pickles, you better get cozy with the Food and Drug Administration’s Code of Federal Regulations, Title 21, Part 113: Thermally processed low acid foods packaged in a hermetically sealed container (21CFR113). To try to understand these regulations, I spoke to Dr. Nancy Flores, Extension Food Technology Specialist at New Mexico State University. Dr. Flores takes these regulations, and the safety aspects of pickling, very seriously because “a lot can go wrong.” She explained to me that all pickles in the United States that are intended for sale to the public must be processed in a commercial kitchen or processing facility, adhere to the regulations outlined in 21CFR113, and be registered with the FDA. “The pickler has a lot of responsibility to get it right,” a point she makes on the phone and I’m sure she reiterates at Better Process Control School, a course for processors of acidified and low acid foods that she co-teaches. The course is four days, costs $575 and is required per the federal regulations. The primary purpose of this training is to ensure that products are safe from deadly organisms like botulinum toxin (the cause of botulism), which in our grandmothers’ time had a seventy percent fatality rate. If you think botulism is a thing of the past, Dr. Flores can tell you about the twenty-year-old New Mexican who died a “painful, terrible death” from a jar of canned red chile given to her by a family friend. Now botulism is very rare, and when contracted is fatal in only about two percent of cases. The regulations play the role of modern stern grandmothers, helping us keep our products safe.

Angie Rodriguez and Maria Gamboa of Valley Gurlz Goods can tell you all about the approval process. They developed a pickled green bean product and from concept to shelf it took them seven months to navigate the process. The twists and turns included submitting their recipes and canning process to NMSU for approval, permitting paperwork with the county, permitting paperwork with the state, and registering with the FDA. It turns out they did it relatively quickly, owing to their persistence. “I can see how people get discouraged,” Maria says, “but we wouldn’t give up.” 

For Maria and Angie this meant partnering with the South Valley Economic Development Center (SVEDC), which provides facilities, resources, and training for new and expanding small businesses, with an eye to job creation and fostering the economic revitalization of Albuquerque’s South Valley community. SVEDC is like a sophisticated older sister, providing mentorship on food preparation, guidance on the approval processes, and offering their commercial kitchen at an hourly rate. Going out of their way to help food entrepreneurs, their commercial kitchen is available twenty-four hours a day. They even help their clients get their product on the shelves of local markets. Maria and Angie found SVEDC’s help vital but as the first picklers using SVEDC there were a few bumps in the road. No one told them about the Better Process Control School and their first application to the county was denied because of another miscommunication. Fortunately, they succeeded and La Montanita Co-op, La Tiendita at SVEDC, and the Downtown Growers Market all carry their crunchy, Soccorro-grown pickled green beans.

Like Valley Gurlz, Jay and his business partner, Dory Wegrzyn of Red Tractor Farm, also want to make pickles, and other products like jams. Drawing from his family legacy, Jay is serious about food safety. He is also perplexed by the myriad of rules that govern the process. “Now if I want to make jam there is an entirely different approval process than pickles,” he says. He is right. If Jay, or any other farmer or citizen, wants to make and sell a product, like apricot jam, then yet another process prevails. As an “acid” food, jams and jellies fall under a separate federal law, 21CFR114, and are generally considered a less risky product to process. In fact, they are so much less risky that in most of New Mexico a citizen can request a permit to make jam to sell to the public from a home kitchen.

In 2010 there was a rule change to 7.6.2 NMAC Food Service and Food Processing Regulations allowing citizens to apply for a permit from the New Mexico Environment Department to make certain “non-potentially hazardous foods” such as jams, jellies, certain baked goods, tortillas, candy and fudge, and dry mixes, from their home kitchen. The process includes a rigorous application, a  hundred dollar fee, proof of permitted wells and septic systems, and an inspection of the home kitchen. The product must be labeled “Home Processed” and can only be sold directly to the consumer at outlets like farmers’ markets and fiestas. Neither Bernalillo County nor Albuquerque chose to adopt a home processing option. Officials from both municipalities say the state approach is not in accordance with the definition of a “food establishment” as laid out in the FDA Food Code* and that they wish to maintain a higher degree of public safety. As a result, they require even non-potentially hazardous items to be prepared in a commercial kitchen.

Lorie Stoller from the City of Albuquerque Environmental Health Department also points out that if they adopted the state approach, it would require a whole host of regulatory changes, including zoning laws. She is also concerned about the civil rights aspect of inspecting homes since all of their inspections are unannounced (what is 8am like at your house?). Not to mention that it is hard for her to envision adding home inspections to the over 1,000 food permit inspections each of her staff do a year. Interestingly, data from the New Mexico Environment Department indicates that there probably would not be an avalanche of inspections to carry out. Only fifty home-processing permits have been issued statewide since the regulations changed in 2010. The city has decided that it is okay if a citizen from another county brings their yummy plum jam (or any permitted home processed item) and sells it at a farmers’ market within city limits.

Both Albuquerque and Bernalillo County officials point to high standards of food safety and the FDA Food Code as their reason for not allowing home processing, but over thirty states currently have home processing, “cottage” food laws. In at least one of these states, South Dakota, a permit can be obtained to home-process pickles, sauerkraut, and chutney, for direct sale to consumers. Let’s assume all these states are not gleefully neglecting public safety and willfully ignoring the FDA Food Code. In my discussion with Dr. Flores she acknowledged, “there is room for interpretation” when it comes to the FDA Food Code and other food regulations.

Dory finds it frustrating and unfair that some New Mexico citizens, but not all, can process non-potentially hazardous items in a home kitchen. “I can sell tomatoes for three dollars a pound but if I could take two tomatoes, make tomato jam and sell that for six dollars, that little bit of value-added extra farm income can make or break my business. Why shouldn’t we have the same opportunity for economic development as the rural areas?” she asks. 

As our country moves back toward locally grown and prepared foods, folks like Jay, Dory, and Valley Gurlz need support to pave the way for others. For New Mexico, part of the solution lies in more commercial kitchens staffed like SVEDC. Recently four New Mexico communities approached SVEDC and offered up commercial kitchen space if SVEDC could develop a program for food entrepreneurs. They worked with the legislature and easily passed a $300,000 bill through this last session but the program was line item vetoed by the governor. Tim Nisly, chief operation officer of the SVEDC, was clearly frustrated. “This was a shovel-ready economic development project that would have provided real economic development possibilities in these communities,” he said. If funded, the bill would have resulted in a network of centers, supporting each other and their clients. Another option is that schools, senior centers, and churches, which already have approved commercial kitchens, open them up to food entrepreneurs. 

Most government officials I spoke to were truly helpful, but when pressed about why the processes were so confusing and time consuming to navigate, there was a collective cry of “the public’s health!” Government of the people, by the people, for the people should mean more transparent and supportive structures. Each level of government could develop easy-to-understand websites and handouts that translate the federal bureaucrat-ese into something even our canning foremothers could have followed. NMSU makes the best stab at this and has several handouts on the topic. NMSU and SVEDC offer orientation classes that cover the permitting process but it would be helpful if new food entrepreneurs had access to mentorship for encouragement and to answer questions. Maria and Angie would be there, “We’d love to help others out.”  And if thirty states allow some form of home processing maybe Albuquerque and Bernalillo County should look into it. I think our grandmothers would like that. 

*The FDA Food Code is a guidance document that the FDA suggest municipalities and states adopt but does not require them to do so. The city of Albuquerque has adopted the 2009 FDA Food Code and the County of Bernalillo has adopted the 2005 FDA Food Code. They plan on adopting the 2013 FDA Food Code.

Photo by Dory Wegrzyn

WANT TO IMPACT THE RULES, GO TO THESE UPCOMING TOWN MEETINGS:

Commissioner Debbie O’Malley, District 1 and Commissioner Art De La Cruz, District 2 Want Your Input On Home-Based Food Processing

If you are interested in processing food in your home for sale at farmers markets and craft fairs, you’re invited to attend a public meeting to share ideas and information. Bernalillo County health protection staff will be present to discuss current regulations affecting home-based food processing and listen to your ideas and concerns about this subject.

The public meetings will be held on the following dates:
Monday, July 29, 2013
Raymond G. Sanchez Community Center
9800 4th Street NW
Albuquerque, NM
6:30 – 8:00 p.m.

Monday, August 19, 2013
South Valley Economic Development Center
318 Isleta Boulevard SW
Albuquerque, NM
6:30 – 8:00 p.m.

Stephanie Cameron

Stephanie Cameron

Edible celebrates New Mexico's food culture, season by season. We believe that knowing where our food comes from is a powerful thing. With our high-quality, aesthetically pleasing and informative publication, we inspire readers to support and celebrate the growers, producers, chefs, beverage and food artisans, and other food professionals in our community.
Stephanie Cameron

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