(a) Notwithstanding any provision of chapter sixteen of this code or any rules promulgated pursuant to that chapter to the contrary, a farmer’s market vendor may apply for a microprocessor permit to sell certain foods at a farmer’s market. A home, farm, community or commercial kitchen may be used by a microprocessor. The microprocessor permit is required in addition to the farmer’s market vendor permit.

(b) A majority of all produce from a microprocessor’s products shall be from his or her farm or garden. The microprocessor is required to keep production and food source records for a period of two years. The food shall be labeled in compliance with the West Virginia Department of Agriculture labeling standards and provide information about its content and sources. The label shall include the words “MADE IN A WV ______ KITCHEN – NOT FOR RESALE/ PROCESSED AND PREPARED WITHOUT STATE INSPECTION” in capital, bold, 10-point type or larger, with the blank space to state whether the product was made in a home, farm, community or commercial kitchen. The label shall also include:

(1) The name and address of the home-based processing operation;

(2) The common or usual name of the food product;

(3) Product ingredients that include potential food allergens such as, but not limited to, milk, eggs, peanuts, tree nuts, wheat and soy;

(4) The date the product was processed.

(1) Canned acidified foods, such as pickled products, sauces and salsas. Acidified foods are low-acid foods to which acid or acid foods are added with a water activity of greater than .085 and a finished equilibrium of pH 4.6 or below; and

(2) Frozen fruits and vegetables, which are not permitted to be vacuum-sealed.

(d) Nonpotentially hazardous foods, and those already exempted, do not require a microprocessor permit but require registration with the local health department. These include, but are not limited to:

(1) Breads, cakes and candies;

(2) Honey, maple syrup, apple butter and molasses;

(3) Standardized nondietary jams and jellies;

(4) Fermented products;

(5) Whole or chopped tomatoes, tomato sauce and tomato juice having a finished equilibrium of pH 4.6 or below;

(6) Exempted condiments; and

(7) Dehydrated fruits and vegetables.

(e) To qualify for a microprocessor permit, the applicant shall:

(1) If the microprocessor makes acidified foods, they are required to complete either a training program from the Better Control Process School for acidified foods, an approved program set up by the West Virginia University Extension Service or an approved training course approved by the Department of Agriculture;

(2) Pass a pre-opening permit inspection conducted by the local health department at the microprocessor’s kitchen. The local health department may conduct at least one annual operational inspection during the processing season at the microprocessor’s kitchen or when warranted. The local health department has the right to suspend operations or recall products for disease outbreaks, or violations of rules or regulations. Any inspection by a local health department shall be in compliance with rules promulgated by the West Virginia Department of Health and Human Resources pursuant to section four of this article;

(3) Possess a valid food handler’s permit from the local health department, if required;

(4) Use a USDA or West Virginia University pre-approved and tested recipe; and

(5) Pay an annual permit fee of not more than $40 to the local health department issuing the microprocessor permit.

(f) A person may not offer for sale microprocessed products over the Internet or in interstate commerce;

(g) A person who purchases a product made by a microproducer shall not resell the product;

(h) Microprocessors shall not sell more than three thousand units per year in the aggregate;

(i) The following prohibitions shall apply to persons microprocessing food for sale at a farmer’s market pursuant to a permit granted by the provisions of this section:

(1) No animals are permitted in the microprocessor’s kitchen or storage area at any time during the production, preparation, processing or packing of products;

(2) Smoking is not permitted in any portion of the microprocessor’s home which is used for preparation, packaging, storage or handling of food and related ingredients or equipment while food is being prepared, packaged, stored or handled.”