The Arkansas Food Freedom Act and Kombucha: What the Law Says and Where It Gets Complicated

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Arkansas Gives Home Producers More Latitude Than Almost Any Other State

Arkansas made a significant legislative move in 2021 that distinguishes it from most states. Act 1040 of 2021, the Arkansas Food Freedom Act, allows the sale of homemade non-time/temperature control for safety food without it being processed in a certified and inspected kitchen. It replaced Arkansas’s old Cottage Food law and significantly expanded what home producers can sell, including that acidified or fermented beverages can be a Non-TCS food depending on their acidity levels.

This is meaningfully different from states like Alaska, where kombucha is explicitly excluded from cottage food by name, or Washington, where anything requiring refrigeration is categorically out. Under the Arkansas Food Freedom Act, if your product qualifies as a homemade Non-TCS food, it is exempt from state licensure, certification, health department inspection, and packaging and labeling requirements that would otherwise apply to commercial food products. There is no annual revenue cap or sales limit written into the Act, which is another distinction from many other states’ cottage food frameworks.

The Act also preempts counties, municipalities, and other local governments from prohibiting or regulating the production and sale of homemade food or drink products covered by the Act, meaning if a city or county tries to require a local permit or impose additional inspections, the state law overrides those local rules. For Arkansas producers operating in jurisdictions with historically active local health enforcement, this preemption provision matters.

But the key question for any kombucha producer considering this pathway is not whether the Food Freedom Act is broad, it clearly is, but whether kombucha as a product actually qualifies as a Non-TCS food under the Act’s specific definition, and the answer is more conditional than the general permission language suggests.

Whether Kombucha Qualifies as Non-TCS Under the Food Freedom Act

The Food Freedom Act’s coverage turns on a single, precise concept. Homemade Non-TCS Food is food or drink products that do not require refrigeration to prevent the growth of disease-causing microorganisms and are processed at the private residence of the producer. The Act allows acidified or fermented beverages to qualify, but only when they genuinely meet the Non-TCS standard, meaning the product’s acidity level has been confirmed to be sufficient that it does not require refrigeration or temperature control for safety.

For foods where safety depends on pH, examples in food safety practice include foods with a water activity greater than 0.91 or a pH greater than 4.5 being treated as TCS foods requiring control, while a final pH below 4.6 may allow classification as Non-TCS. For a fermented beverage like kombucha, this threshold matters, but pH alone does not settle the question for a product that continues actively fermenting after production.

Here is where kombucha’s specific biology creates a genuine complication. A properly fermented kombucha batch reaching pH 4.2 or below is acidic enough that pathogen growth is inhibited. But kombucha is not a static product. Active yeast and bacteria in the culture continue producing carbon dioxide and alcohol after bottling, particularly in an unpasteurized product. The main food safety hazard in bottled kombucha is acid-resistant pathogens, and bottling at pH 4.2 or below will prevent pathogen growth. Another hazard is bottling an actively fermenting kombucha beverage: carbon dioxide builds up inside the container, and as pressure exceeds the container’s capacity, bottles can explode, forming projectile hazards. There is also a shelf life concern where alcohol can build up to 0.5 percent or above.

This ongoing fermentation means the classification of your kombucha as Non-TCS is not just a question of pH at the point of bottling. It is a question of whether the product remains genuinely safe and stable without refrigeration throughout its shelf life. An unpasteurized kombucha that tests at pH 3.8 at bottling but continues developing alcohol in a home pantry for several weeks after sale is not clearly a Non-TCS food in the way that a shelf-stable jam or a properly acidified pickle is, and the ADH’s own guidance on the Food Freedom Act recommends contacting ADH regarding the risks in the Exceptions column for products where the classification is not straightforward.

The Federal TTB Layer That Applies Regardless of State Law

Even if a specific Arkansas kombucha product qualifies as Non-TCS under the Food Freedom Act at the state level, the federal alcohol threshold operates entirely independently of that classification. Any kombucha that reaches 0.5 percent ABV at any point during production, bottling, or after bottling on a shelf is classified as an alcohol beverage subject to federal TTB regulation, regardless of how the product is classified under Arkansas law.

For products that may approach alcohol beverage territory, the Arkansas Food Freedom Act Guidelines specifically direct producers to contact the Arkansas Alcoholic Beverage Commission. This is an explicit recognition in the state’s own guidance that fermented beverages with alcohol production potential exist at the intersection of food safety regulation and alcohol beverage regulation, and producers need to address both layers before going to market.

For a home producer selling kombucha directly to consumers under the Food Freedom Act, the practical risk is that unpasteurized product placed in a sealed bottle will continue fermenting after sale, potentially crossing the 0.5 percent ABV threshold in the buyer’s possession. Whether that risk is adequately managed without pasteurization depends entirely on your specific fermentation process, your culture characteristics, and how quickly the product is consumed, factors that vary in ways that make a definitive blanket answer impossible without knowing the specific product.

When You Need a Fully Permitted Facility Instead

Once your kombucha operation moves beyond the limits of the Food Freedom Act, whether because the product does not genuinely qualify as Non-TCS, because you want to sell through retailers or restaurants rather than only to individual informed end consumers, or because you want to scale beyond direct-to-consumer sales, you step into the full commercial licensing pathway.

Arkansas Department of Health’s Wholesale and Manufactured Foods program conducts plan review, pre-opening inspections, annual routine inspections, and necessary follow-up inspections for food manufacturers and distributors in the state, evaluating the condition of product, the equipment, the manufacturing process, hygienic practices, sanitation, and labeling of product. This program is your regulatory contact for commercial kombucha production going into wholesale distribution.

Products that need to be approved and made in a facility inspected and permitted as a Manufactured and Wholesale Food Establishment by ADH include Non-TCS foods above the required pH level, which are excluded from the Food Freedom Act. A kombucha producer whose product does not reliably achieve Non-TCS status through pH alone, or who wants to sell to grocery stores or food service accounts rather than only directly to individual consumers, needs an ADH-permitted commercial facility and the associated HACCP plan for the fermentation process as a specialized process under the FDA Model Food Code.

Any food sold to the public that requires temperature control to remain safe must be permitted by the Arkansas Department of Health. All raw, ice, beverages, or ingredients for sale in whole or in part for human consumption must be prepared in a facility licensed and inspected by ADH. A kombucha sold refrigerated in a grocery store is, by virtue of being refrigerated, acknowledging that temperature control is involved in keeping it safe, which is a strong signal that the product falls under the licensed facility requirement rather than the Food Freedom Act exemption.

The Critical Control Points That Apply in Any Arkansas Commercial Kombucha Operation

Whether you are a licensed commercial producer or a Food Freedom Act producer who needs to demonstrate Non-TCS status through pH, the same core food safety controls define your process.

The fermentation step in which pH drops from approximately 5 to 4.2 or below is the only step critical for preventing the potential for acid-resistant pathogens. The critical limit is pH 4.2 or lower, monitored using a calibrated digital pH meter for each batch. This is your primary CCP, and for a Food Freedom Act producer, it is also the specific measurement that determines whether your product qualifies for the home production exemption in the first place. Every batch must be tested, the result recorded, and your pH meter calibrated with known buffer solutions, with that calibration documented alongside batch results.

Alcohol content management is the second CCP, and it is where the practical distinction between pasteurized and unpasteurized kombucha production matters most in the Arkansas context. A pasteurized product that halts active fermentation before bottling achieves a more stable, definitive safety profile than an unpasteurized product relying on refrigeration and rapid consumer turnover to manage the ongoing fermentation risk. For any producer selling into retail channels or to consumers who may store the product for extended periods, pasteurization provides meaningfully more certainty that the product remains within safe parameters throughout its shelf life.

SCOBY health and culture documentation is the third control point, particularly relevant for Food Freedom Act producers who lack the formal HACCP inspection system that would otherwise catch culture contamination through routine oversight. A living culture producing unexpected flavor profiles, off-colors, or mold growth is a safety concern that consumer-facing producers under the Food Freedom Act are responsible for identifying and addressing entirely through their own process controls, since no inspector is reviewing their operation.

What the Commercial Pathway Looks Like in Practice

For producers choosing the fully licensed ADH Manufactured and Wholesale Food Establishment pathway, the process begins with a plan review submission to ADH. To become a permitted facility, the establishment must first be approved by ADH. A plan review is required if the facility is new or being remodeled, and information on plan review can be obtained from your local county health unit.

Your plan needs to address your complete fermentation process from tea brewing through SCOBY addition, primary fermentation, secondary fermentation if applicable, pH verification, bottling, and storage, identifying your critical control points and the specific controls you apply at each. ADH’s Wholesale and Manufactured Foods program conducts pre-opening inspections verifying that your physical facility and documented process meet requirements before you begin production, and annual routine inspections thereafter.

Effective September 7, 2019, Arkansas rules for Retail Food Establishments require that all facilities have at least one employee with supervisory and management responsibility and the authority to direct and control food preparation and service who has passed a test that is part of an accredited Certified Food Protection Manager program. This CFPM requirement applies to retail food establishment operations and is part of the baseline expectation for any licensed food facility in Arkansas.

Staying Honest About Where the Food Freedom Act Applies

The temptation for an Arkansas kombucha producer is to read the Food Freedom Act’s broad language, note that fermented beverages are mentioned, and assume the exemption covers their operation. The more careful reading is to ask whether your specific product, with its specific fermentation profile, alcohol development characteristics, and storage and distribution model, genuinely qualifies as Non-TCS throughout its actual shelf life and sales channel.

A freshly fermented, well-acidified kombucha sold directly to a consumer who drinks it within a few days is a different risk profile from the same product sitting on a grocery store shelf for three weeks in a warm warehouse before a customer picks it up. The Food Freedom Act’s Non-TCS classification is a product characteristic, not just a process one, and it needs to hold true across the full range of conditions the product will actually experience after it leaves your hands.

ADH guidance specifically notes that products in the Exceptions category warrant direct contact with ADH before assuming coverage. Fermented beverages with ongoing alcohol production potential are exactly the kind of product where that conversation is worth having before building a business model around a specific regulatory assumption.

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Bottom line

Arkansas’s Food Freedom Act is one of the most permissive home food production laws in the country, and it specifically allows acidified or fermented beverages as Non-TCS foods if they genuinely do not require refrigeration for safety. Whether any specific kombucha product qualifies depends on whether the product’s pH, water activity, and ongoing fermentation profile actually support a stable, non-refrigerated shelf life, not just whether the batch tested at pH 4.2 at the point of bottling. Unpasteurized bottled kombucha with continuing post-bottling fermentation raises genuine questions about Non-TCS classification that ADH guidance recommends resolving through direct contact before assuming coverage. Producers selling through retail channels, food service accounts, or any distribution pathway beyond direct-to-informed-consumer sales need an ADH-permitted Manufactured and Wholesale Food Establishment with a HACCP plan for the fermentation process as a specialized process. The federal TTB 0.5 percent ABV threshold applies regardless of how the product is classified under Arkansas law.

FAQ

  • Can I make and sell kombucha from my home in Arkansas? Possibly, under the Arkansas Food Freedom Act, which allows sale of acidified or fermented beverages if they qualify as Non-TCS foods that do not require refrigeration for safety. Whether your specific kombucha product meets this standard depends on your fermentation process, your product’s pH and water activity, and whether it remains genuinely stable without refrigeration throughout its shelf life. ADH guidance recommends contacting the department directly for products where this classification is not straightforward.
  • Does the Arkansas Food Freedom Act cover wholesale or retail distribution of kombucha? No. The Food Freedom Act covers direct sales to an informed end consumer only, meaning the last person to purchase the product who does not resell it. Selling kombucha to grocery stores, restaurants, or any other business requires an ADH-permitted Manufactured and Wholesale Food Establishment license and a HACCP plan for the fermentation process, regardless of whether the product otherwise meets Non-TCS standards.
  • What pH does my Arkansas kombucha need to reach? The critical limit recognized in HACCP-based guidance for kombucha is pH 4.2 or below at the completion of fermentation, the threshold at which acid-resistant pathogen growth is reliably inhibited. This is also the pH level most directly relevant to whether a fermented beverage qualifies as a Non-TCS food under the Food Freedom Act framework. Every batch should be tested with a calibrated digital pH meter and the result documented.
  • Does the federal alcohol rule apply to kombucha sold under the Arkansas Food Freedom Act? Yes. Federal TTB rules apply regardless of state-level classification. Any kombucha that reaches 0.5 percent ABV at any point during production, bottling, or after bottling is regulated as an alcohol beverage by TTB. Arkansas’s own Food Freedom Act guidelines specifically direct producers with products approaching alcohol beverage territory to contact the Arkansas Alcoholic Beverage Commission, recognizing that state and federal frameworks operate independently on this question.
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