Cottage Food Label Requirements in South Dakota (2026)

Cottage food rules in South Dakota — the whole program

Who can sell homemade food in South Dakota

South Dakota has no 'cottage food licence' and no cottage food registry. What it has is a licensure exemption carved out of the food service establishment licensing chapter, S.D. Codified Laws ch. 34-18. The chapter's baseline is SDCL 34-18-9: it is a Class 2 misdemeanour 'to maintain, conduct or operate a lodging establishment, campground or food service establishment in this state unless a valid license, issued by the department, is in the possession of the owner and posted in a conspicuous place'. 'Food service establishment' is defined at SDCL 34-18-1(5) so broadly that a home kitchen selling to the public would otherwise be caught: 'any fixed restaurant; coffee shop; cafeteria; short-order cafe; luncheonette; grill; tearoom; sandwich shop; soda fountain; tavern; bar; cocktail lounge; night club; roadside stand; catering kitchen; delicatessen; bakery; grocery store; boardinghouse; or similar place in which food or drink is prepared for sale or for service to the public on the premises or elsewhere with or without charge'. Note 'roadside stand' and 'bakery' sitting inside that definition, and note 'with or without charge' — without the exemption, even a free roadside stand would be a licensable establishment. The exemption is built from two sections read together. SDCL 34-18-35 ('Sale of homemade foods and food products') switches the licensure provisions off by product category: 'Except as otherwise provided in § 34-18-38, the licensure provisions of this chapter do not apply to a person selling: (1) Non-temperature-controlled food prepared at a residence; (2) Home-processed canned goods; (3) Baked goods prepared at a residence; or (4) Any food product prepared at a residence and authorized under § 34-18-36 or 34-18-36.1.' SDCL 34-18-38 then sets the conditions that keep the exemption alive: 'A person selling food prepared at the person's primary residence, in accordance with § 34-18-35, is exempt from the licensing and license fee provisions of this chapter if: (1) The food meets the requirements of § 34-18-37; (2) The food is sold in the seller's physical presence at: (a) The seller's primary residence; (b) A farmer's market; (c) A roadside stand; or (d) Other temporary sale venue; and (3) The seller, or a person residing at the seller's primary residence, personally delivers the food to the buyer at the completion of the sale.' Four eligibility facts follow, and each of them is a trap for someone reading a generic 'cottage food' article. (1) There is no application, no approval, no registration number and no state list you appear on. You are eligible by operation of law the moment your product, your venue and your label all qualify — and you are outside the exemption the moment any one of them stops qualifying. Nobody tells you either way. This is the single most important structural fact about the South Dakota programme and it is what makes the label and the venue rules load-bearing rather than administrative. (2) The producer must be a natural person selling from 'the person's primary residence' (34-18-38). The statute is written around a person and a residence, not around an entity, a farm, a club or a commercial kitchen. Renting time in a licensed commercial kitchen does not make you a cottage producer; it makes you someone operating out of a licensed establishment, with that establishment's obligations. Nothing in ch. 34-18 stops you from holding your business in an LLC for liability and tax purposes, but the physical-presence and personal-delivery conditions are written about a human being: the seller, or 'a person residing at the seller's primary residence'. An employee who does not live in your house cannot lawfully hand the product over for you under 34-18-38(3). (3) 'Prepared at a residence' is the production test. 34-18-35 uses 'a residence' for the production side and 34-18-38 uses 'the person's primary residence' for the selling side. Read together, and as the Department of Health reads them in its Farmers Market Guidance, the practical rule is: you make it in your home kitchen and you sell it yourself, direct. There is no square-footage rule, no separate-kitchen rule, no pets-out-of-the-kitchen rule, no water-testing rule and no home inspection written into the chapter. South Dakota is unusually light here; what it puts in place of a facility standard is the disclaimer at 34-18-37(9) that tells the buyer, in so many words, that this did not come from a commercial kitchen. (4) There is a second gate for anything perishable. The 2022 act (below) created a class of homemade foods that DO require time and temperature control and that you may nonetheless sell — but only if you have first satisfied the food safety training requirement of 34-18-36. Training is not a general cottage food requirement in South Dakota; it is the key that unlocks canned goods, fermented foods, custard and cream products, sauces and pesto, and frozen fruit and produce. Plain non-TCS baked goods and dry goods need no training at all.

What you may and may not sell

Allowed:

• Non-temperature-controlled food prepared at a residence — SDCL 34-18-35(1). This is a category test, not a list. Anything that does not require time or temperature control for safety and is made in a residence is inside the exemption. In practice this is the broadest of the four doors and it is what covers dry mixes, spice and seasoning blends, cocoa and drink mixes, home-ground flour, granola, intact grains, roasted coffee beans, nuts, seeds and hard candies (SD DOH Farmers Market Guidance, June 2022 product table).
• Baked goods prepared at a residence — SDCL 34-18-35(3), with no qualifier of any kind. Cookies, rolls, cakes, muffins, breads, lefse, confectionaries, pies. Since the 2022 amendment the word 'baked goods' in 34-18-35(3) is unqualified; before 2020 the whole exemption spoke only of 'non-temperature-controlled baked goods'.
• Home-processed canned goods — SDCL 34-18-35(2), subject to the hard chemistry limit in 34-18-36: 'No canned good may be sold unless the pH level is 4.6 or less or the water activity level is .85 or less.' Jams, jellies, fruit sauces, applesauce, syrups, pickled and acidified products (salsas, dill pickles), BBQ sauce. Canned goods additionally require the five-year food safety training OR a third-party processing authority letter (see 'training').
• Non-heat-processed fermented food — SDCL 34-18-36.1(1), 'provided the food is consistently maintained at a temperature that is at or below forty-one degrees Fahrenheit'. DOH lists kombucha, kimchi and sauerkraut as the common examples. Available only to a producer who 'verifies compliance with the food safety training requirements set forth in accordance with § 34-18-36'.
• Kuchen and TCS baked goods — SDCL 34-18-36.1(2), verbatim: 'Kuchen and baked goods that require time and temperature control for safety, including soft pies, cheesecake, and baked goods having a custard or cream filling, and sauces and pesto that require time and temperature control for safety, provided the food is consistently maintained at a temperature that is at or below forty-one degrees Fahrenheit.' This is South Dakota's signature provision and it is genuinely unusual: cheesecake, cream pies, custard-filled pastry and pesto are prohibited outright in most states. Kuchen is the South Dakota state dessert, which is not a coincidence — the 2022 bill was written to legalise the church-and-market kuchen trade. Training required.
• Sauces and pesto that require time and temperature control for safety — same subdivision, 34-18-36.1(2), same 41 °F condition, same training requirement. Note the statute conditions on the food 'requiring' TCS; a shelf-stable acidified BBQ sauce travels instead under the canned goods door at 34-18-36.
• Home-processed frozen fruit and produce — SDCL 34-18-36.1(3), 'provided the food is consistently maintained at a temperature that is at or below zero degrees Fahrenheit'. DOH reads this to cover freeze-dried sliced fruit and produce and frozen bagged fruit and produce. Training required. Note the colder threshold: 0 °F, not 41 °F, and not 'frozen solid'.
• Fresh, whole, uncut fruits and vegetables — not a cottage food question at all but the neighbouring exemption at SDCL 34-18-34: 'No person selling whole, intact fresh fruits or vegetables at a farmer's market, roadside stand, or similar venue is required to be licensed pursuant to this chapter.' DOH requires no label for these.
• Intact salad greens and herbs, dried or fresh, including mixed greens with leaves, microgreens and shoots — DOH Farmers Market Guidance product table, 'State License Required: NO'. Sprouts are treated differently and are NOT exempt (see prohibited foods).
• Small promotional or educational food samples at a farmers market — DOH Farmers Market Guidance: 'Yes no license is needed, we ask that you follow food sampling requirements found at the SDDOH website.' The Department's published sampling minimums are: samples prepared on site, single-use containers or bite-sized portions, cold held at or below 41 °F and hot held at or above 140 °F, clean and sanitised utensils and single-use gloves, sneeze guards or plastic coverings, and a handwashing station with potable water, soap and paper towels.

Not allowed under the program:

• Home canned foods with pH above 4.6 or water activity above .85 — low-acid canning. SDCL 34-18-36 is absolute: 'No canned good may be sold unless the pH level is 4.6 or less or the water activity level is .85 or less.' No training, letter or waiver moves this line. DOH's examples of the forbidden side: canned peas, beans, tomatoes, corn, beets, squash, soups, meats, and nut butters. A state licence is required for these.
• Any TCS food not listed in 34-18-36.1. The 2022 act opened a closed list of three subdivisions, not a general 'you may sell perishables if you keep them cold' rule. Ice cream and frozen dairy desserts, cut and bagged salads, cooked meat dishes, dips with a dairy or vegetable base outside the pesto/sauce wording, and anything else needing refrigeration for safety fall outside the exemption even if you own a thermometer and a cold case.
• Fresh-cut fruit and produce that is not frozen, and sprouts — DOH Farmers Market Guidance product table, 'State License Required: YES'. Sliced melon, shredded lettuce, diced tomatoes, tossed salad. The frozen door at 34-18-36.1(3) is the only way cut produce becomes exempt, and it requires 0 °F.
• Juices and ciders — licence required (DOH table). These also carry federal juice HACCP exposure at 21 C.F.R. part 120 once sold other than direct-to-consumer at retail.
• Take-and-bake products — doughs, unbaked pizzas, unbaked fruit pies. Licence required (DOH table). The exemption is for 'baked goods'; an unbaked good is not one.
• Other prepared food and drink — sandwiches, casseroles, hot dishes, stews, smoothies, potato and other salads, garlic and flavoured oils, meat sauces. Licence required (DOH table). Garlic-in-oil deserves its own mention: it is a classic botulism vehicle and DOH lists it explicitly.
• Meat and meat food products. Outside ch. 34-18 entirely; jurisdiction sits with the meat inspection chapter SDCL ch. 39-5 and, for most sales, with USDA FSIS. SDCL 39-5-11 exempts on-farm slaughter and custom slaughter for the owner's own use, which is not a licence to sell. DOH: 'Products under jurisdiction of other state or federal agencies include (but are not limited to); meat, poultry, jerky, fish, dairy products, honey, eggs, and non-food items such as home-made soap or lotions.'
• Poultry — same answer. The 2025 attempt to add home-processed poultry exempt under 9 C.F.R. § 381.10(c) to the cottage list (HB 1187) was killed in committee. Federal small-producer poultry exemptions are a separate regime with their own conditions and do not travel through 34-18-36.1.
• Jerky and dried meat — explicitly listed by DOH as outside the cottage laws, notwithstanding that jerky is shelf-stable and might look 'non-temperature-controlled'.
• Fish and seafood — outside the cottage laws (DOH list); state and federal fish-processing rules apply.
• Dairy products — milk, cheese, butter, yoghurt. Outside ch. 34-18; South Dakota dairy law and the frozen desserts chapter SDCL ch. 39-8 govern. There is no raw-milk cottage door here.
• Eggs — outside the cottage laws per DOH's own list, even though eggs are the archetypal farmers market item. Egg sales are governed by South Dakota's egg law and federal egg regulation rather than by 34-18-35. Do not assume your farmers market booth's cottage status covers the egg cooler next to it.
• Honey — listed by DOH as under another agency's jurisdiction. This surprises people, because honey is shelf-stable and is exempt in many states' cottage laws. Ask DOH before treating honey as a cottage product.
• Non-food items — home-made soap, lotions and cosmetics. Not food, not covered by ch. 34-18, and subject to the federal FD&C Act cosmetic provisions and MoCRA instead.
• Alcoholic beverages. Nothing in ch. 34-18 touches South Dakota's alcohol licensing regime at SDCL title 35; home fermenting for sale is a separate and much harder question. Kombucha is exempt as a fermented food under 34-18-36.1(1) only while it stays below the federal 0.5% ABV line.
• Cannabis and hemp-infused edibles. No cottage door; separate statutory regimes.
• Anything at all sold outside the venue and delivery conditions of 34-18-38 — which converts an otherwise-allowed food into an unlicensed food service operation rather than into a prohibited food. The distinction matters: the product was never the problem, the channel was.

How much you may sell

None. There is no dollar limit on South Dakota cottage food sales, and the Department of Health says so in terms: 'There are no monetary limits on the amount of sales.' (SD DOH Farmers Market Guidance, June 2022.) This is a repeal, not an omission, and the history is worth knowing because stale articles still quote the old number. Until 2020, SDCL 34-18-38 conditioned the exemption on '(3) The total gross receipts from the sale of non-temperature-controlled baked goods from the person's own primary residence does not exceed five thousand dollars in a calendar year'. House Bill 1125 of the 2020 session (SL 2020, ch. 143, § 2) struck that subdivision in its entirety and replaced it with the venue list. So the $5,000 annual cap that appears in older write-ups of South Dakota has been dead since 1 July 2020. What replaced the cap is a channel restriction, and it bites harder than a dollar figure would. Your ceiling is now the practical one: how much you can sell face to face, in your own physical presence, handing the goods over yourself. There is no cap on revenue and no cap on volume; there is a cap on how you may reach a buyer. Two consequences people miss. First, crossing any revenue threshold does not push you into a licence — there is no threshold to cross. A South Dakota cottage producer doing $200,000 a year in kuchen at markets is as exempt as one doing $2,000, provided every sale is direct and in person. Second, the absence of a state cap says nothing about federal or tax thresholds: sales tax applies from the first dollar (see sales_channels), and income tax and self-employment tax obligations are federal and unaffected. South Dakota levies no personal state income tax.

Where you may sell

• The seller's primary residence — SDCL 34-18-38(2)(a). Selling from your own front door, driveway or yard is the first authorised venue and is what the original 2010 law was about.
• A farmer's market — SDCL 34-18-38(2)(b). Added by HB 1125 in 2020. The statute does not define 'farmer's market', does not require the market to be organised, permitted or seasonal, and does not require the market manager to verify anything. In practice market managers do check labels and training certificates, because DOH's guidance is written to them as much as to you: 'Ultimately, failure to comply with state law may result in a notice of closure for the vendor, prohibiting the further sale of their food item(s).'
• A roadside stand — SDCL 34-18-38(2)(c). Note the interaction with 34-18-1(5), which lists 'roadside stand' as a species of food service establishment: without 34-18-38 your stand would need a licence. It is the exemption, not the absence of regulation, that makes the stand lawful.
• 'Other temporary sale venue' — SDCL 34-18-38(2)(d). The elastic clause: craft fairs, church bazaars, community events, pop-ups, holiday markets. The operative word is temporary. A permanent booth inside a retail store is not a temporary sale venue, and DOH treats sales from a retail store as indirect and therefore licensable.
• Physical presence is mandatory in every one of these venues — 34-18-38(2) opens 'The food is sold in the seller's physical presence at'. An honour box, an unattended cooler on the porch, a vending machine or a market table minded by a friend all break the exemption. DOH: 'Goods are to be sold in the seller's physical presence (direct).'
• Personal delivery at the completion of the sale is equally mandatory — 34-18-38(3): 'The seller, or a person residing at the seller's primary residence, personally delivers the food to the buyer at the completion of the sale.' This is the provision that authorises home delivery: you may drive an order to a customer, and so may someone who lives with you. Nobody else may, and a courier certainly may not. DOH: 'The seller, or a person residing at the seller's primary residence may personally deliver home processed foods to the buyer at the completion of the sale.'
• NO shipping, by mail or by carrier. SDSU Extension states it flatly: 'This law does not allow one to ship products via mail or carrier.' Nothing in 34-18-38 permits handing the product to a third party for transport, and doing so defeats both the physical presence and the personal delivery conditions. Interstate shipment would in any case pull you into federal FDA registration territory under the Food Safety Modernization Act.
• NO internet sales as a channel. DOH is explicit: 'The home processed foods must be properly labeled and cannot be sold wholesale (indirect). Examples of indirect sale may include sales from a retail store or via the internet. Indirect sales would require a state license.' The practical line most producers care about — whether you may ADVERTISE online, take an order and a payment online, and then complete the sale hand to hand — is not resolved by the statutory text, which regulates the completion of the sale rather than the solicitation of it. This point is unsettled; if your model depends on it, ring the Office of Health Protection at 605-773-4945 and get the answer in writing.
• NO wholesale, and no third-party retail. You may not sell to a grocery, a coffee shop, a gift shop or a co-op for resale. The 2025 bill that would have permitted third-party vendor sales with a segregated display and a sign (HB 1179) died in committee.
• Sales tax applies. South Dakota imposes state sales tax on retail sales of food, and municipalities add their own; a producer making retail sales needs a South Dakota sales tax licence from the Department of Revenue (dor.sd.gov, 1-800-829-9188). Two specifics from DOR's Special Events tax fact (September 2025) matter to market sellers: 'Tourism tax does not apply at farmers markets', and no separate temporary licence is needed for ordinary special events — but the Sturgis Rally and the State Fair each require their own temporary South Dakota sales tax licence and their own special event return, even if you already hold a sales tax licence.
• Scales. If you sell by weight, the Office of Weights and Measures requires an NTEP-approved legal-for-trade scale, certified every other year, with a $28.00 certification fee (SD DOH Farmers Market Guidance, Weights and Measures section; scheduling on 605-773-3697).

Permit, registration and fees

South Dakota requires no state permit or registration for a cottage food operation.

1. Step 0 — understand that there is no step. Nothing in SDCL 34-18-35 to 34-18-38 requires you to register, notify, apply, pay, or obtain a number before selling. The exemption is self-executing. Do not go looking for a South Dakota cottage food permit; it does not exist, and a website that sells you one is selling you nothing.
2. Classify the product first. Run it through the four doors of 34-18-35 in order: is it non-TCS food prepared at a residence? a baked good? a home-processed canned good within the pH 4.6 / aᵤ .85 limits? or one of the three items authorised by 34-18-36.1? If it is none of these, stop — you need a food service establishment licence, and the fee schedule at SDCL 34-18-11 runs from ninety dollars for an establishment with no seating up to two hundred twenty-five dollars for one hundred one or more seats, renewable annually on or before 31 December under 34-18-10.
3. If your product is a canned good, prove the chemistry before you sell. 34-18-36 is a sale prohibition, not a labelling rule: pH 4.6 or less, or water activity .85 or less. Test, or work from a recipe validated by a processing authority. Salsas and acidified pickles are exactly where home recipes drift over the line.
4. If your product is a canned good, a fermented food, a TCS baked good, a TCS sauce or pesto, or frozen fruit or produce, complete the training route or the processing authority route BEFORE the first sale, and keep the paperwork — 34-18-36 requires that 'The producer shall retain records verifying the timely completion of such training.' See the training field for what is approved and what it costs.
5. Build the label to all nine subdivisions of 34-18-37, with the disclaimer word for word. This is the only mandatory compliance artefact the state gives you and it is the one thing an inspector or a market manager will actually look at.
6. Pick a lawful venue and a lawful hand-over: primary residence, farmer's market, roadside stand or other temporary sale venue; in your physical presence; delivered by you or by someone living at your primary residence. Build the business model around this before you build it around a website.
7. Register with the Department of Revenue for a sales tax licence before your first sale (dor.sd.gov / 1-800-829-9188). This IS a registration, it is just not a health registration. If you will vend at the Sturgis Rally or the State Fair, obtain the separate temporary licence for each.
8. If you sell by weight, buy an NTEP-approved legal-for-trade scale and have it certified ($28.00, every other year, 605-773-3697).
9. Check the layer the state does not check for you: your city or county. Zoning, home occupation permits, signage and any local business licence are outside ch. 34-18 (see local_rules).
10. Consider product liability insurance and keep production records. Neither is required by South Dakota law. Both are what stand between you and a complaint, given that the statute's whole design is to put the buyer on notice and then leave you unsupervised.

Fee: $0 to the Department of Health. There is no cottage food application fee, no permit fee and no renewal fee, because there is no permit: 34-18-38 exempts a qualifying seller 'from the licensing and license fee provisions of this chapter'. The real costs are elsewhere and they are small: the SDSU Extension 'South Dakota Cottage Home Processing Food Safety' online course carries a $40 registration fee, and it is only needed once every five years and only for the canned/fermented/TCS/frozen categories. The processing authority alternative is free — SDSU Extension performs product reviews at no charge via its Process and Ingredient Review Form. Scale certification, if applicable, is $28.00 every other year. A Department of Revenue sales tax licence is free to obtain. For comparison, if you fall out of the exemption, SDCL 34-18-11 sets the food service establishment licence at $90 (no seating), $120 (1-50 seats), $180 (51-100 seats) or $225 (101+ seats), and SDCL 34-18-17 sets a temporary food service licence at thirty-eight dollars.

Renewal: Nothing to renew with the Department of Health, because nothing was issued. The only recurring compliance clock in the exemption is the training cycle at 34-18-36: 'a producer selling canned goods under this section shall, every five years, complete food safety training approved by the department.' Diary that five-year date, keep the certificate, and note that the obligation is on you to retain the verifying records. Producers using the processing authority route instead maintain a written verification per recipe — which means a new verification each time you change a recipe, not every five years. Separate clocks that do renew: the Department of Revenue sales tax licence and returns, and scale certification every other year. If you ever do need a food service establishment licence, that one renews annually on or before 31 December (SDCL 34-18-10).

Food safety training

South Dakota's training rule is conditional, and getting the condition right is worth real money. There is NO training requirement for the plain cottage categories: non-temperature-controlled food prepared at a residence and baked goods prepared at a residence are exempt under 34-18-35(1) and (3) with no course, no certificate and no food handler card. Cookies, breads, dry mixes, hard candies, ground flour, granola — nothing to take, nothing to keep. Training becomes mandatory the moment you touch canned goods or anything under 34-18-36.1. SDCL 34-18-36, second paragraph, verbatim: 'Except as otherwise provided in this section, a producer selling canned goods under this section shall, every five years, complete food safety training approved by the department. The training must be available online. The producer shall retain records verifying the timely completion of such training.' Two design choices in that sentence are unusual and helpful: the legislature required the department's approved training to be available online, so there is no travel-to-Pierre problem; and the five-year cycle is far longer than the two- or three-year cycles common in other states. SDCL 34-18-36.1 then bolts the same requirement onto the perishable categories by reference: 'Any producer who verifies compliance with the food safety training requirements set forth in accordance with § 34-18-36, may sell the following: (1) Any non-heat-processed fermented food...; (2) Kuchen and baked goods that require time and temperature control for safety...; and (3) Home-processed frozen fruit and produce...'. So one course opens four product families at once: canned goods, fermented foods, TCS baked goods plus TCS sauces and pesto, and frozen fruit and produce. The Department restates this in its own words: 'A producer selling these foods shall, every five years, complete an approved food safety course.' THE APPROVED COURSE. SDSU Extension delivers the Department-recognised programme, 'South Dakota Cottage Home Processing Food Safety' — a self-paced online course carrying a $40 registration fee, with a certificate on completion, registered through Eventbrite (course code MC-04104). SDSU describes it as 'South Dakota Department of Health-certified online training once every five years'. Its syllabus is the syllabus of the risk the statute is trying to manage: general canning principles, canning equipment, acid foods, acidified foods, low acid foods, freezing foods, drying foods, and pH testing. SDSU also states that its Master Food Preserver or Home Food Preservation course 'may serve as equivalent training'. Because the statute delegates approval to the department rather than naming a provider, confirm with DOH before relying on any other course. THE ALTERNATIVE ROUTE — PROCESSING AUTHORITY. SDCL 34-18-36, third paragraph, verbatim: 'A producer selling home-processed goods under this section may, in lieu of the requirement for food safety training, maintain verification of each recipe from a third-party processing authority. The third-party processing authority must have knowledge of the thermal processing required of food in hermetically-sealed containers and shall verify the method of processing and that the pH or water activity threshold levels are met. The processing authority shall provide verification in writing to the producer.' Read the words 'each recipe'. This route is per-recipe and per-product, not per-producer: it suits someone selling two jams for years, and suits nobody who reformulates constantly. The verification must be written, and you keep it. WHO THE PROCESSING AUTHORITIES ARE. The Department's Farmers Market Guidance names two by name and address: Curtis Braun, SDSU Extension Food Safety Specialist, 2001 E. 8th St., Sioux Falls, SD 57103, 605-782-3290 ext. 265, Curtis.Braun@sdstate.edu; and Jayne Stratton, Ph.D., University of Nebraska-Lincoln Food Innovation Center, Lincoln, NE 68588, 402-472-2829, jstratton@unl.edu. SDSU Extension offers free product reviews through its Process and Ingredient Review Form. Free review by a named state specialist is an unusually generous piece of infrastructure and it is the single most underused thing in the South Dakota programme. TEMPERATURE CONTROL IS A CONTINUING DUTY, NOT A ONE-OFF QUALIFICATION. The training unlocks the category; the temperature clause governs every hour afterwards. 34-18-36.1 says the food must be 'consistently maintained' at or below 41 °F (fermented, TCS baked goods, TCS sauces and pesto) or at or below 0 °F (frozen fruit and produce). 'Consistently maintained' has no grace period written into it and no allowance for transport, market setup or a hot August afternoon in Sioux Falls. The statute does not name a thermometer, but you cannot evidence 'consistently maintained' without one: carry a calibrated probe thermometer, keep the product in mechanical refrigeration or a well-iced insulated unit with a monitored ambient thermometer, log temperatures at load-out, at market open and at market close, and be ready to show the log. Note also that 41 °F is the same number DOH uses for cold-held samples in its farmers market sampling requirements, and 0 °F for frozen is colder than 'frozen solid' — a domestic chest freezer running at 5 °F does not comply. Finally, nothing in the chapter requires a food handler card, a ServSafe manager certificate, an allergen course or a home kitchen inspection for cottage producers. Those belong to the licensed world.

Inspection

There is no routine inspection of a South Dakota cottage food operation and no right of entry into an exempt home kitchen written into ch. 34-18. The inspection and enforcement machinery of the chapter — the notice-of-deficiency and closure-order power at SDCL 34-18-26, the summary suspension power for a hazardous condition at 34-18-27, the contested-case hearing right at 34-18-28 — is drafted throughout in terms of a 'lodging establishment, campground, food service establishment, temporary food service establishment, or mobile food service establishment'. An exempt seller is by definition none of those. Likewise the rulemaking mandate at 34-18-22, under which the Department sets the minimum public health and safety requirements, runs to those same licensed categories. That is the legal position. It is not a promise that nothing will happen to you, and the Department's guidance says so in the first paragraph: 'It's important to note that all vendors are required to produce safe, wholesome food products in a sanitary manner whether licensed or not.' And again: 'Please be aware that the law only provides license exemption for specific types of food items. The law does not provide an exemption for all food products and all regulations.' WHAT ACTUALLY HAPPENS IN PRACTICE, and it is worth being precise because the informal enforcement is real: 1. Market-level checking. Farmers market managers are the front line, and the Department's guidance is addressed to them ('For Market Managers & Vendors'). Expect a manager to ask to see your label and, for canned or perishable goods, your training certificate or processing authority letter. A market can and does refuse a vendor on this basis, which is a commercial sanction long before it is a legal one. 2. Sanction by closure notice. The Department's stated consequence for non-compliance is blunt: 'Ultimately, failure to comply with state law may result in a notice of closure for the vendor, prohibiting the further sale of their food item(s).' Note the mechanism — the argument the Department makes is that a producer who has stepped outside 34-18-35/38 has lost the exemption and is therefore an unlicensed food service establishment, at which point the chapter's enforcement powers do reach them. 3. Criminal exposure. SDCL 34-18-9 makes operating without a required licence a Class 2 misdemeanour, and 34-18-32 makes any violation of the chapter or its rules a Class 2 misdemeanour, with 'each and every day of operation after serving the notice of closure' a distinct and separate offence. In South Dakota a Class 2 misdemeanour carries up to thirty days in county jail and a fine of up to five hundred dollars. This is a theoretical tail rather than a common outcome, but it is the tail that makes the venue rules worth respecting. 4. Outbreak investigation. Nothing in the exemption limits the Department's general communicable-disease and foodborne-illness investigation authority, which sits outside ch. 34-18. Tellingly, the failed 2025 HB 1179 proposed to spell out that 'Nothing in § 34-18-37 or section 2 or 3 of this Act prevents the department from investigating any report of foodborne illness' — a clarification the legislature did not think it needed to enact, not a power it withheld. 5. The product review that is not an inspection. SDSU Extension's free processing authority review looks at your recipe and process, not at your kitchen. It is voluntary, it is not a state approval, and — per SDSU's labelling guidance — you may not put the reviewing authority's name on your label or make any 'tested for safety' or 'approved' or inspection claim. Doing so converts a helpful review into a misbranding problem. 6. Precedence. SDCL 34-18-31 provides that the chapter's provisions 'shall have precedence over any other statutes relating directly to the safety and sanitary requirements, inspection and licensing of' the establishments it covers. That clause is about statutory conflict, not about municipal zoning — see local_rules. THE LABEL IS THE INSPECTION. Because South Dakota does not look at your kitchen, the entire compliance surface of the programme is SDCL 34-18-37: 'Food prepared at a residence may not be sold unless it has a label that includes the following information: (1) Name of the product; (2) Name of the producer; (3) Physical address of production; (4) Mailing address of the producer; (5) Telephone number of the producer; (6) Date the product was made or processed; (7) Ingredients; (8) In the case of food sold in accordance with § 34-18-36.1, a directive to keep refrigerated or frozen; and (9) A disclaimer that states: "This product was not produced in a commercial kitchen. It has been home-processed in a kitchen that may also process common food allergens such as tree nuts, peanuts, eggs, soy, wheat, milk, fish, and crustacean shellfish."' Four practical points. The disclaimer wording is prescribed verbatim and must be reproduced exactly, including the seven-plus-one allergen list; do not paraphrase it and do not edit it to say your kitchen is nut-free. No minimum point size is fixed in law — SDSU Extension's instruction is that the label be prominent, conspicuous and easy to read. The physical address of production is your home address, and there is no anonymity option: the 2020 bill as introduced would have created a Department-issued identification number to be used 'in lieu of the producer's physical address of production, mailing address, and telephone number', with a database at a proposed § 34-18-37.1, and the legislature struck that scheme before enactment. And item (7) says only 'Ingredients' — the statute imposes no order and no allergen call-out beyond the disclaimer, but SDSU Extension instructs producers to list in order of predominance, largest to smallest by weight, which is also what the failed 2025 HB 1179 would have codified. Follow the Extension practice. One genuine tension to be aware of: 34-18-37 says 'Food prepared at a residence may not be sold unless it has a label', with no packaging qualifier, while the Department's 2022 product table marks labelling for several categories as 'YES (if packaged)'. The safe reading is the statutory one — label everything.

What your city or county may add

South Dakota's cottage food sections contain no express preemption clause. SDCL 34-18-35 to 34-18-38 disapply 'the licensure provisions of this chapter' and exempt a qualifying seller 'from the licensing and license fee provisions of this chapter'. Both formulations are self-referential: they speak to ch. 34-18 and to nothing else. Read that as an absence rather than as a grant. A state licensure exemption is not a municipal permission slip. The one section that looks like preemption is SDCL 34-18-31: 'The provisions of this chapter shall have precedence over any other statutes relating directly to the safety and sanitary requirements, inspection and licensing of lodging establishments, campground, food service establishments, temporary food service establishments, and mobile food service establishments.' Note what it does and does not do. It resolves conflicts between STATUTES, not between the chapter and a city ordinance; and it is framed around the licensed establishment categories, which an exempt cottage seller is not. It is not a shield against a zoning officer. WHAT LOCAL GOVERNMENT CAN STILL DO TO YOU, in rough order of how often it actually bites: 1. Zoning and home occupation rules. This is the real constraint in Sioux Falls and Rapid City. Municipal zoning ordinances typically limit home occupations by customer traffic, employees, signage, deliveries, outdoor storage and hours — all of which a residence-based food business with a steady stream of pickup customers can breach without ever touching a food regulation. The state exemption gives you no zoning rights whatsoever. Ask your city planning or zoning office, not the Department of Health. 2. Homeowners' association covenants and lease terms. Private law, entirely outside ch. 34-18, and the most common reason a home-based food business in a subdivision stops. A covenant prohibiting commercial activity binds you regardless of what SDCL 34-18-38 permits. 3. Municipal business licences and local sales tax registration. Most South Dakota municipalities impose their own sales tax on top of the state rate, and some license particular activities. Municipal tax is reported through the state return but it is a real additional cost you must build into your price. 4. Farmers market rules. Markets set their own vendor agreements, fees, insurance minimums, product mix rules, and grower/producer requirements. A market may lawfully demand more than the state does — proof of training even for plain baked goods, a certificate of liability insurance, a specific label format. This is contract, not regulation, and there is no appeal to the Department. 5. Event and vendor permits. County fairs, festivals and city-run events routinely require a vendor permit, a booth fee or proof of insurance, independently of ch. 34-18. And note the interaction with the definition at SDCL 34-18-1(2) and (15): a county fair or a temporary food service establishment at a fair, carnival, circus or public exhibition is its own licensed category under the chapter, with a thirty-eight dollar temporary licence under 34-18-17. If you are cooking to order at a fair rather than selling packaged home-processed goods, you may be in that category instead of the cottage exemption. 6. Roadside stands and right-of-way. A stand on or near a public road may need a county or municipal encroachment or sign permit, and state highway right-of-way rules apply regardless of 34-18-38(2)(c). 7. Septic, well water and building code. Unregulated by ch. 34-18 for cottage producers, but a substantial home kitchen build-out will draw a building permit and, on rural properties, county on-site wastewater review. 8. Tribal jurisdiction. South Dakota contains nine federally recognised tribal nations with substantial reservation lands. On trust land, tribal law and tribal health regulation may govern rather than, or in addition to, state law, and state jurisdiction over on-reservation commerce involving tribal members is a genuinely complicated question. If you produce or sell on a reservation, ask the tribal government; do not assume SDCL 34-18-38 is the whole answer. 9. Federal law does not go away. FDA's Food Safety Modernization Act facility registration is triggered by interstate commerce, which is one more reason the no-shipping rule matters; federal allergen labelling under FALCPA, acidified food regulation at 21 C.F.R. part 114 and juice HACCP at part 120 all sit above the state exemption for anyone who steps outside direct intrastate retail sale.

Program sources: SDCL 34-18-35, 'Sale of homemade foods and food products' — full current text read on the South Dakota Legislature statute service, source note 'SL 2010, ch 172, § 2; SL 2022, ch 106, § 1': https://sdlegislature.gov/Statutes/34-18-35 (machine-readable copy: https://sdlegislature.gov/api/Statutes/Statute/34-18-35) · SDCL 34-18-36, 'Canned goods––Requirements' — pH 4.6 / water activity .85 limit, five-year approved training, records retention, and the third-party processing authority alternative; source note 'SL 2010, ch 172, § 3; SL 2022, ch 106, § 2': https://sdlegislature.gov/Statutes/34-18-36 · SDCL 34-18-36.1, 'Food safety training––Authorized sales' — the three authorised temperature-controlled categories with the 41 °F and 0 °F conditions; source note 'SL 2022, ch 106, § 3': https://sdlegislature.gov/Statutes/34-18-36.1 · SDCL 34-18-37, 'Label requirements' — the nine mandatory label elements and the verbatim disclaimer; source note 'SL 2010, ch 172, § 4; SL 2020, ch 143, § 1; SL 2022, ch 106, § 4': https://sdlegislature.gov/Statutes/34-18-37 · SDCL 34-18-38, 'Exemption from licensure––Requirements' — the venue list, physical presence and personal delivery conditions; source note 'SL 2011, ch 158, § 1; SL 2020, ch 143, § 2; SL 2022, ch 106, § 5': https://sdlegislature.gov/Statutes/34-18-38 · SDCL 34-18-1, 'Definition of terms' — the food service establishment definition at (5) that the exemption carves out of, plus 'Department' (3), 'Nonprofit organization' (9), 'Secretary' (12) and 'Temporary food service establishment' (15): https://sdlegislature.gov/Statutes/34-18-1 · SDCL 34-18-34, 'Farmer's market fresh fruits and vegetables--Licensure exemption' — the separate whole-produce exemption: https://sdlegislature.gov/Statutes/34-18-34 · SDCL 34-18-9 (licence required, Class 2 misdemeanour), 34-18-10 (annual licence, renewal on or before 31 December), 34-18-11 (food service establishment fees $90/$120/$180/$225), 34-18-17 (temporary food service licence, thirty-eight dollars): https://sdlegislature.gov/Statutes/34-18-9 , /34-18-10 , /34-18-11 , /34-18-17 · SDCL 34-18-26, 34-18-27, 34-18-28, 34-18-31 and 34-18-32 — deficiency notice and closure orders, summary suspension, contested-case hearings, precedence over other statutes, and the Class 2 misdemeanour with each day a separate offence: https://sdlegislature.gov/Statutes/34-18-26 , /34-18-27 , /34-18-28 , /34-18-31 , /34-18-32 · 2020 House Bill 1125 (95th Legislative Session), 'revise conditions for selling non-temperature-controlled baked goods without license', enacted as SL 2020, ch. 143. Enrolled text: https://mylrc.sdlegislature.gov/api/Documents/69163.html . Introduced text with strike-and-underline, which is where the repealed $5,000 calendar-year cap and the abandoned §§ 34-18-37.1 / 34-18-37.2 identification-number scheme are visible: https://mylrc.sdlegislature.gov/api/Documents/64922.html . Bill record: https://sdlegislature.gov/Session/Bill/10325 · 2022 House Bill 1322 (97th Legislative Session), 'provide for the direct sale of certain home-produced or home-processed foods and food products', enacted as SL 2022, ch. 106 — the act that created 34-18-36.1 and the training regime. Enrolled text: https://mylrc.sdlegislature.gov/api/Documents/236086.html . Bill record: https://sdlegislature.gov/Session/Bill/23433 · 2025 House Bill 1179, 'clarify certain labeling and sales requirements for homemade food items' — introduced text (https://mylrc.sdlegislature.gov/api/Documents/279174.html) and action log showing 'Deferred to the 41st legislative day', House Commerce and Energy, 2025-02-10, 11-1 (https://sdlegislature.gov/api/Bills/ActionLog/25988). Did not become law. · 2025 House Bill 1187, 'authorize the sale of home-processed poultry and pork by producers who verify compliance with food safety training requirements' — introduced text (https://mylrc.sdlegislature.gov/api/Documents/279221.html) and action log showing 'Deferred to the 41st legislative day', House Agriculture and Natural Resources, 2025-02-13, 13-0 (https://sdlegislature.gov/api/Bills/ActionLog/26030). Did not become law. · 2021 House Bill 1121, 'establish criteria governing the sale of homemade food items' — action log showing 'Deferred to the 41st legislative day', House Local Government, 2021-02-23, 10-3: https://sdlegislature.gov/api/Bills/ActionLog/22277 . Did not become law. · South Dakota Department of Health, 'FARMERS MARKET GUIDANCE For Market Managers & Vendors', product table 'Updated 2022', document dated June 2022 — the licence/labelling product table, the FAQ ('There are no monetary limits on the amount of sales'; internet and retail-store sales are indirect and require a state licence; the list of products under other agencies' jurisdiction: meat, poultry, jerky, fish, dairy, honey, eggs, soap and lotion), the named processing authorities, and the Weights and Measures $28.00 scale certification: https://doh.sd.gov/media/jskjetg5/farmersmarketguideance.pdf · South Dakota Department of Health, Farmers Markets topic page — the cottage laws framing ('All vendors are required to produce safe, wholesome food products in a sanitary manner whether licensed or not') and the food sampling minimums (≤41 °F cold, ≥140 °F hot, single-use containers, gloves, sneeze guards, handwashing station): https://doh.sd.gov/topics/food-lodging-safety/farmers-markets/ · South Dakota Department of Health, Food and Lodging Licensure and Codes — online application at sddoh.safefoodinspection.com and the notice that 'Effective July 1, 2026, paper applications will no longer be accepted': https://doh.sd.gov/topics/food-lodging-safety/licensure-and-codes/ . Department contact: 600 East Capitol Avenue, Pierre, SD 57501-2536, 605-773-3361, DOH.info@state.sd.us; food product and farmers market questions 605-773-4945. · SDSU Extension, 'South Dakota Cottage Home Processing Food Safety' — the Department-recognised online course, $40 registration, self-paced, certificate on completion, Eventbrite course code MC-04104; syllabus covering canning principles and equipment, acid, acidified and low-acid foods, freezing, drying and pH testing; the statement that Master Food Preserver or Home Food Preservation may serve as equivalent training; and the free Process and Ingredient Review Form for processing authority review: https://extension.sdstate.edu/south-dakota-cottage-home-processing-food-safety · SDSU Extension, 'Labeling of Prepared and Processed Foods in South Dakota' — the instruction to list ingredients in order of predominance, largest to smallest by weight; the requirement that the label be prominent, conspicuous and easy to read (no numeric point size is set by law); and the prohibition on naming a processing authority or claiming that a product has been tested or approved for safety: https://extension.sdstate.edu/labeling-prepared-and-processed-foods-south-dakota · South Dakota Department of Revenue, 'Special Events' tax fact, September 2025 — 'Tourism tax does not apply at farmers markets'; no separate temporary licence for ordinary special events, but a temporary South Dakota sales tax licence and a special event return are required for the Sturgis Rally and for the State Fair; municipal sales tax and municipal gross receipts tax apply in addition to state tax. DOR 1-800-829-9188: https://dor.sd.gov/media/wo2bl1yu/specialevents.pdf · SDCL 39-5-11, 'Exemptions from inspection and preparation provisions' — the on-farm and custom slaughter exemptions in the meat inspection chapter, cited here only to show where meat jurisdiction sits and what the failed 2025 HB 1187 would have hooked into: https://sdlegislature.gov/Statutes/39-5-11 · National Agricultural Law Center, South Dakota cottage food compilation (reproduction of SDCL 34-18-35 to 34-18-38), used as a cross-check only; the operative texts above were read from the Legislature's own service: https://nationalaglawcenter.org/wp-content/uploads/assets/cottagefood/South-Dakota.pdf