Can I sell eggs in South Dakota?

Do I need a license to sell eggs in South Dakota?

Not an egg dealer license, on the statute’s words, if you sell and deliver your own production exclusively to consumers. No person may “engage in the business of buying, selling, processing, candling, grading, packing, or distributing eggs in South Dakota” without a license, “except: … Producers selling and delivering their own production exclusively to consumers” (SDCL 39-11-2(2)), and a “consumer” is “any person who purchases eggs for his use, but not for resale” (39-11-1(1)). SDSU Extension, written with the director of the Department’s State Dairy Lab, says the same: a license is not required for “Producers selling and delivering their eggs exclusively to customers, such as selling eggs to a neighbor or co-worker.”

The license the law does provide is Class A, for “producers who pack and sell eggs produced only by their own flock,” $10 a year per business location (39-11-5(1)), expiring each February 28 (39-11-6). The rule issues it “after inspection and approval of premises and equipment by an egg inspector” (ARSD 12:26:02:02) to “producers who pack eggs produced only by their own flock into South Dakota consumer grades and sell to retail stores, or institutional consumers, or both” (12:26:02:08). A natural person who candles or grades eggs needs a $10 candler/grader license too (39-11-5). The Department’s form page says a new license takes a call, “as there are additional criteria to be met prior to issuing a new license,” and Extension describes an open-book examination, an inspection and a candling demonstration.

Where the sources part is who needs it. Extension’s egg page says the Class A license and a candler/grader license are “Required for selling eggs at the farmer’s market, foodservice establishment, or retail outlet,” including “Selling eggs produced from his/her own flock,” and its farmers market page says “The marketing of farm fresh eggs to the general public at farmers markets requires egg producers to obtain a Class A Egg-Dealer Candling/Grader license.” The statute’s exception names no venue, and the rule ties Class A to sales to stores and institutional consumers. What a farm selling only to households, at home or at a market, needs is not settled. Ask the Department.

A health license is a separate question, and the sources are silent. A “food service establishment” includes a “roadside stand” or similar “place in which food or drink is prepared for sale or for service to the public,” and must be licensed by the Department of Health (SDCL 34-18-1(5), 34-18-9). The licensing chapter excuses “whole, intact fresh fruits or vegetables” at a farmer’s market or roadside stand (34-18-34) and certain food “prepared at a residence” (34-18-35), and neither names an egg. The Department of Health’s farmers market guidance lists eggs among “Products under jurisdiction of other state or federal agencies” that its cottage food rules do not cover. No source read says whether a farm’s own egg stand is a food service establishment, and nothing calls a health license required or optional. Ask the Department of Health.

Source: SDCL ch. 39-11, ARSD art. 12:26, DANR, South Dakota Egg Program, DANR, Egg Dealer License application, SDSU Extension, Selling and Distributing Eggs in South Dakota, SDSU Extension, Food and Product Regulations for the Farmers Market, SDCL ch. 34-18 and DOH, Farmers Market Guidance.

How many eggs can I sell without a license in South Dakota?

None is in the statute or the rules read. The exception in 39-11-2(2) has no hen or dozen line, and the Class A license has none either. The line that does appear is the buyer: a sale “exclusively to consumers,” meaning buyers who do not resell (39-11-1(1)). The rules call a “wholesale dealer” one who buys from producers or other wholesalers and sells to retailers, institutional consumers or other wholesalers “in lots greater than three cases or ninety dozen” (ARSD 12:26:01:01(14)); that defines a dealer class, and no source says it limits a producer.

The federal line is separate: a shell egg producer with “3,000 or more laying hens at a particular farm that does not sell all of your eggs directly to consumers” (21 CFR 118.1). A violation of the chapter is a petty offense (SDCL 39-11-15), and the Department may issue a stop-sale order on eggs in violation (39-11-16).

Source: SDCL ch. 39-11, ARSD art. 12:26 and 21 CFR 118.1.

Can I sell eggs at a farmers market in South Dakota?

The statute names no venue, and a person who buys eggs at a market for their own use is a “consumer” on its face (SDCL 39-11-1(1)). The Department’s own pages say nothing about markets. SDSU Extension, though, says two things: an egg dealer license “is not required” for a producer “selling and delivering their eggs exclusively to customers,” and the Class A and candler/grader licenses are “Required for selling eggs at the farmer’s market.” Extension adds that a market license “is posted at the farm/business (not at the market stall),” though a market may ask for a copy. Which of the two holds for an own-flock seller is not said. Ask the Department.

The health side treats eggs as another agency’s. The Department of Health says its cottage food laws let a seller sell listed foods directly to the consumer “from a home, farmers market, or similar venue,” and its guidance names “eggs” among the “Products under jurisdiction of other state or federal agencies” that those laws do not cover. Whether an egg stall at a market needs a health license is not said. Ask the Department of Health.

Selling by online request and pickup is not addressed by any source read on eggs. The Department of Health’s guidance calls an internet sale of home-processed food an “indirect” sale that “would require a state license,” but it says this of the foods its cottage laws cover, and eggs are not among them. See the listing question under cartons.

Source: SDCL ch. 39-11, SDSU Extension, Selling and Distributing Eggs in South Dakota, SDSU Extension, Food and Product Regulations for the Farmers Market, DOH, Farmers Markets and DOH, Farmers Market Guidance.

Can I sell eggs to a restaurant, a store or someone who resells them in South Dakota?

Not on the license-free footing above, on the words read. The exception covers a sale “exclusively to consumers,” and a consumer buys “for his use, but not for resale” (SDCL 39-11-1(1), 39-11-2(2)). A store buys to resell. A restaurant falls under a separate term, an “institutional consumer,” meaning any “food service establishment … or other institution or place in which eggs are prepared as food for customers” (39-11-1(4)). The rule then names both buyers for the Class A license: it goes to producers who pack their own flock’s eggs into South Dakota consumer grades “and sell to retail stores, or institutional consumers, or both” (ARSD 12:26:02:08).

That license brings the rules’ conditions for eggs sold to those buyers. A seller to retailers and institutional consumers gives the buyer an invoice with name and address, date, number of eggs, and grade and weight class, and keeps a copy 90 days (12:26:03:01). Graded eggs for retail sale carry the exact grade and weight class in letters at least three-sixteenths inch high, “keep refrigerated,” an “EXP” date within 30 days of pack (or a use-by date within 45), and a handler code, plant name and address or code number registered with the secretary, and loose pack may not be offered (12:26:10:01). Eggs below Grade B may not be sold in retail stores or bought by institutional consumers (12:26:10:04), and eggs held for sale by retailers or for use by institutional consumers stay at or below 45°F (12:26:06:04).

No Department page read walks through a farm’s sale to a store or restaurant, and this page reads the statute and rule together rather than an agency’s answer. Whether the restaurant or store also needs anything from the Department of Health is not said. Ask the Department of Agriculture and Natural Resources.

Source: SDCL ch. 39-11, ARSD art. 12:26 and DANR, Egg Dealer License application.

Do I need to grade or label my eggs in South Dakota?

For graded eggs offered to consumers, the rule asks for the exact grade and weight class in letters at least three-sixteenths inch high, “keep refrigerated” on the face of the carton, an “EXP” date no more than 30 days after pack (or a use-by date no more than 45), and the handler code, plant name and address or registered code number; loose pack graded eggs may not be offered (ARSD 12:26:10:01). SDSU Extension lists the same in plainer words: the producer, grade and weight of the egg, an expiration date 30 days from packing, and the safe handling statement “To prevent illness from bacteria: keep refrigerated, cook eggs until firm, and cook foods containing eggs thoroughly.” Federal rules put the "Safe Handling Instructions" statement on every carton of shell eggs (21 CFR 101.17(h)).

Reusing cartons: the rule says “Only clean, sound, dry flats and fillers and new cartons may be used” (12:26:06:02), and Extension says “Reusing old egg cartons is not allowed.”

Whether a seller who falls under the exception must do this is not said. Rule 12:26:10:01 speaks to a person “exposing or offering graded eggs for sale to consumers,” and the sources do not say when an own-flock egg is “graded.” The rules define “nest run eggs” as “packed as they come from the production facilities without having been washed, sized, or candled for quality,” but the sections read give a nest run seller neither a rule nor an excuse. Ask the Department.

A listing that shows a price per dozen, on this site or elsewhere: “No person may advertise by sign, placard, or otherwise the price at which eggs are offered for sale without marking or denoting the full and correct designation of grade and weight class of the eggs” with the price (12:26:10:03). No source read says whether an online listing is such an advertisement, or how it applies to a seller under the exception. Ask the Department.

Source: ARSD art. 12:26, SDSU Extension, Selling and Distributing Eggs in South Dakota and 21 CFR 101.17(h).

Do eggs have to be refrigerated to sell in South Dakota, and at what temperature?

The rules say 45°F: eggs “held for sale by retailers or held for use by institutional consumers shall be stored or refrigerated at a temperature not to exceed 45 degrees Fahrenheit or 7 degrees Celsius” (ARSD 12:26:06:04); eggs awaiting shipment from a dealer are stored “below 45 degrees Fahrenheit” with a thermometer in each area (12:26:06:01); and eggs are carried in enclosed vehicles with internal temperature “at or below 50 degrees Fahrenheit” (12:26:06:05). Extension says eggs are “washed and then stored in the refrigerator at 32 to 45 degrees F.”

Whether a producer selling straight to a household is a “retailer” or a “dealer” under these lines is not said: the rules define a “retail store” as “a place of business that offers for sale shell eggs” (12:26:01:01(13)) and never define a retailer. Ask the Department.

Source: ARSD art. 12:26 and SDSU Extension, Selling and Distributing Eggs in South Dakota.

Can I sell duck, quail or other eggs in South Dakota?

The egg chapter defines “eggs” as “eggs in the shell of a domesticated chicken, turkey, duck, goose, or guinea” (SDCL 39-11-1(2)), so duck eggs are inside it. Quail are not named, and no source read says whether the chapter, its exception or its license reaches quail eggs, or how the rules’ chicken-style grades apply to any of these birds. Ask the Department.

Selling the birds or hatching eggs is a different matter: SDSU Extension says vendors “distributing (selling or giving away) live poultry under five months of age and hatching eggs must acquire a permit through the SDAIB,” the Animal Industry Board.

Source: SDCL ch. 39-11 and SDSU Extension, Food and Product Regulations for the Farmers Market.

Do I have to wash or candle eggs to sell them in South Dakota?

Washing is regulated when eggs are cleaned: “Eggs which require cleaning may be cleaned by either manual or mechanical means,” with potable water only, washed eggs “spray-rinsed with warm, potable water which contains at least 50 parts per million and no more than 200 parts per million of a chlorine sanitizing compound,” and washed eggs “dry before placing in cartons or cases” (ARSD 12:26:12:01). Extension says the Department “will provide information for cleaning eggs” and that excessively dirty eggs should be discarded.

Candling: “Any natural person who candles or grades eggs shall be licensed,” at $10 a year (SDCL 39-11-5), and a buyer of eggs delivered by producers must candle them before full payment (39-11-9). The rule sets the methods for whoever candles (12:26:05:02). No source read says whether a producer selling under the statute’s exception must wash, candle or grade at all, or whether an own-flock seller who candles needs the candler/grader license Extension pairs with Class A. Ask the Department.

Source: SDCL ch. 39-11, ARSD art. 12:26 and SDSU Extension, Selling and Distributing Eggs in South Dakota.