Cottage Food and IP Laws: Special Considerations for Montana Food Producers

January 2017

Roughly one year ago, Montana joined the bandwagon of states that have passed so-called "cottage food" laws. This, coupled with Montana's leadership in the brewery, winery and distillery industries, will help lay the groundwork for a healthy and diverse economy that takes full advantage of our agricultural resources. According to the Montana Department of Agriculture, agriculture is Montana's number one industry, with over 28,000 farms and ranches across the state. Some of Montana's largest crops include wheat, sugar beets, and pulse crops, but Montanans also produce bread, jellies and jams, pasta and other specialty food products. Some of these products are manufactured in industrial kitchens, but many of them are made at home.

The Montana Department of Agriculture publishes an annual directory of Farmers Markets throughout the state; the 2016 directory is here. Currently, there are more than 50 Farmers Markets taking place from May to October. (By contrast, according to our research, Oklahoma has approximately half this number.) Each market has its own unique character; the Livingston market features local artists, and the Billings market always has several Hutterite tables replete with colorful vegetables. Vendors who sell their wares at Farmers Markets should be aware not only of cottage food laws but also potential intellectual property issues.

Montana's cottage food law, codified at Mont. Code Ann. § 50-50-102 et seq., defines a "cottage food operation" as one in which food products are prepared in a kitchen of a domestic residence and sold directly to consumers within the state of Montana. These products must be labeled with contact information for the cottage food operation; the name of the cottage food product; the ingredients of the cottage food product, in descending order of predominance by weight; the net quantity, weight, count, or volume of the cottage food product; allergen labeling as specified by federal and state labeling requirements; if a nutritional claim is made, an appropriate label if required by federal law; and the following statement, printed in at least the equivalent of 11-point font size in a color that provides a clear contrast to the background and is conspicuously placed on the principal label: "Made in a home kitchen that is not subject to retail food establishment regulations or inspections." Cottage food operations are not subject to licensure or inspection requirements. All cottage food operations must be registered with the State pursuant to Mont. Code Ann. § 50-50-117. Violations of the cottage food laws may result in criminal and civil penalties.

Our firm represents both large and small players in the food production industry, ranging from national companies like Rosen's Diversified Inc. and Tabatchnick Fine Foods, Inc., to relative start-ups like Wayfare Inc. of Bozeman, to long-established niche companies like Becky's Berries of Absarokee and Montana Tamale Company of Billings. Vassallo Foods, Inc. of Kalispell, whom we also represent, sells its Country Pasta® egg noodles on and at Costco, Sam's Club and Walmart. Timeless Seeds offers the country's only gourmet line of heirloom organic lentils and specialty grains. Our firm has helped all of these companies build their trademark portfolios and take action against infringers when necessary.

Trademark protection is particularly important in the food industry because consumers are flooded with competing products, and consumer safety (which is directly tied to the consumers' perception of the quality of the brand) is foremost in our minds when it comes to things that we ingest. Although food patents are harder to come by, primarily because recipes—in and of themselves—are not usually patentable, we have advised numerous clients in the food industry as to the patentability of their products and processes. Please click here for our previous article on food patents.


Amicable photo of Toni

Antoinette M. Tease, P.L.L.C.