60 Day Rule News

As I have been warning Guild members for the past few years, the FDA has now publicly announced that it will abandon the “60 Day Rule” allowing the sale and nationwide distribution of cheeses aged > 60 days.

In advance of this decision the FDA conducted pathogen testing aimed at raw milk cheeses produced by smaller cheese makers across the United States.

In announcing that the FDA would be revising the 60 Day Rule at this year’s ACS Conference, the FDA released the findings of their “swabathon” which found LESS than 1% contamination rate of finished products resulting in NO illnesses or deaths. Whether or not the FDA states this, it is an exceedingly low contamination rate that is most likely as low or lower than that found on cheeses made with pasteurized milk…it’s just unfortunate that the FDA overlooked the opportunity to conduct a parallel study on pasteurized milk cheeses for comparison. Oh snap.

I was about to send around the link to the FDA announcement, but then this dropped into my email box this morning (and if you haven’t already subscribed to Fletcher’s fun and informative newsletter, I’d recommend that you do so…). The link to the FDA statement is included along with Fletcher’s overview of the situation. (She was sitting in the audience along with Jessie and Jillian at the ACS Conference when Dr. Nega Beru, head of FDA’s Office of Food Safety, made the announcement.)

DO NOT ASSUME that this means raw milk cheese will be regulated out of existence, or even that the age of legal raw milk cheese will be lengthened. There has been a ton of scientific work among dairy scientists around the world in the last 10 years that show how many companies consistently produce safe raw milk cheeses of all ages. Organizations like the American Cheese Society have gathered up much of this scientific evidence for the FDA’s review, and federal legislators have publicly reminded the FDA of their promise to base all of their food safety rules on widely accepted scientific methods using public data, and pointed out several cases where they have not done that. In a best case scenario the regulation of raw milk cheeses will be process based (like the pasteurization rule) and not time based — cheesemakers using Best Practices processes (such as those regulated into law in Britain, and/or those currently being refined by ACS) will be able to sell any cheese whether it starts as raw milk or not.

Therefore this is one more reason for cheesemakers everywhere to participate in the public discussion, as well as to actively support those organizations (business and government) that are doing the work to make sure the FDA follows through on their promises. We must make our voice heard in this timely debate.

New Sales Tax Takeaway

As many of you already know Maine has substantially changed its sales tax rules regarding food. It’s no longer as straight-forward as groceries (non-taxable) and prepared food (always taxable). The legislature, in its infinite wisdom, now regards some groceries as taxable. The new name for non-taxable food is “grocery staples.”

At our meeting on January 12th one of the members asked how this affects cheese makers because she had heard different things from different people. I promised to look into the question and try to digest the information available.

Attached are two PDFs. One contains the five pages that apply to groceries among the entire revised Sales Tax Reference Guide (linked in its entirety here).

The other document is the revised Instructional Bulletin Number 12 (linked here) for Retailers of Food Products.

There is also a shorter FAQ type document (“Supplemental Information“) based on questions already submitted to the State about the changes.

I recommend reading the Instructional Bulletin and the Supplemental Information because they are more detailed and easier to digest. Be aware that there is now a taxation distinction between “grocery staples” that are altered by the retailer themselves. For example a dairy that mixes chocolate syrup into a bottle of milk to make chocolate milk is considered the SAME as a coffee shop that squirts coffee syrup into a cup of milk they poured from a carton.

There is a PowerPoint presentation meant to summarize the changes in Taxable Food Products (linked here — be warned that it is HUGE and may take a while to download).

Finally, because there is STILL some ambiguity in the Instructional Bulletin, I called the Maine Revenue Service (MRS) Sales Tax Division (207-624-9693). I spoke to Laura Larrabee who then consulted with her boss, Ed Lowell, to clarify the items below.

FYI: Sale Tax (where applicable) on grocery items are 5.5%; sales tax on Prepared Foods is now 8%. This review is meant to cover “Grocery Staples” that would be sold by a cheese maker. If you also sell Prepared Foods there is another Instructional Bulletin (27) that covers Prepared Food.
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