Fresh meals, cooked proteins, soups, and refrigerated foods are TCS — and TCS foods cannot be produced or sold under New Mexico's Homemade Food Act. Here is what that means, why it exists, and what your options are if prepared food is your passion.
New Mexico's Homemade Food Act covers only non-TCS (non-time-and-temperature-control-for-safety) foods — foods that are fully shelf-stable and do not require refrigeration. Cooked meals, soups, fresh proteins, dairy-based dishes, casseroles, and most prepared entrees are TCS by nature. Producing or selling them from your home kitchen is not permitted under the Act. Doing so without a commercial permit from NMED can result in fines and a stop-sale order.
This is not a technicality or a grey area — it is the core operating rule of New Mexico's home food seller framework. The law was specifically designed to permit low-risk, shelf-stable foods while leaving the regulation of higher-risk prepared foods to the commercial kitchen and permitting system. If prepared meals are the heart of your food business, there is a clear path to doing it legally — it just requires a commercial kitchen and an NMED permit. That path is covered at the bottom of this page.
TCS stands for Time/Temperature Control for Safety. A food is TCS when its composition — specifically its available moisture, protein content, and pH — creates conditions where harmful bacteria can multiply to dangerous levels if the food is not kept at a safe temperature. The danger zone for bacterial growth is between 41°F and 135°F. TCS foods must stay below 41°F (refrigerated) or above 135°F (hot holding) to remain safe.
Three factors combine to determine whether a food is TCS. Any food with moderate-to-high levels of all three is likely TCS and not permitted under New Mexico's Homemade Food Act.
Water activity above 0.85 provides sufficient free moisture for bacterial growth. Fresh meats, cooked grains, and dairy products all have high water activity.
Proteins are the primary nutrient source for bacteria. Foods high in animal or plant proteins — meats, eggs, dairy, cooked legumes — support rapid bacterial growth at unsafe temperatures.
Most bacteria thrive at pH 4.6–7.5. Unlike high-acid foods (jams, vinegar pickles), cooked meals and fresh proteins have a neutral or near-neutral pH — ideal for bacterial growth.
In the temperature danger zone, harmful bacteria like Salmonella, Listeria, and Staphylococcus aureus can double in number every 20 minutes. A freshly cooked pot of soup left at room temperature for two hours can reach levels of contamination that cause serious illness — with no visible, smell, or taste warning. This is why refrigeration and temperature monitoring are non-negotiable for prepared foods, and why producing them in an uninspected home kitchen presents risks that the Homemade Food Act was not designed to cover.
The categories below reflect the most common prepared food products that home sellers ask about. The left column covers foods that are clearly prohibited under the Homemade Food Act. The right column covers categories that have a legal path to market in New Mexico — just not from your home kitchen under the HFA.
If prepared meals, fresh food, or TCS products are central to your business vision, New Mexico has a clear regulatory path — it just runs through NMED's commercial permitting system rather than the Homemade Food Act. Here is how to get started.
You will need access to an NMED-permitted commercial kitchen — either a shared kitchen (sometimes called an incubator kitchen or commissary), a rented restaurant kitchen during off-hours, or your own commercial kitchen space. NMED's district field offices can help you identify permitted facilities in your area. Contact NMED at food.program@state.nm.us or visit env.nm.gov/foodprogram.
The manufactured food permit covers production of packaged food products for sale to other businesses. The retail food permit covers direct-to-consumer sales at a food establishment. The annual fee for a manufactured food permit is $200, with annual NMED inspections. Download the application at env.nm.gov/foodprogram/retail-food-application.
While a food handler card is sufficient for Homemade Food Act sellers, commercial operations typically require a licensed food manager on every shift — someone with a Certified Food Protection Manager (CFPM) credential from an ANSI-ANAB accredited program such as ServSafe. This is a higher-level certification than the food handler card, typically requiring an 8-hour course and proctored exam.
If you want to sell TCS foods at a specific festival or event, NMED offers a temporary food event permit. This allows you to prepare and sell fresh food at a specific location for the duration of the event. The temporary food event permit application is available at NMED's food program page. Contact your nearest NMED district office to confirm local requirements and lead time for approval.
Not every prepared food idea requires a commercial kitchen. If you can create a shelf-stable version of your product — for example, a dry soup mix, a spice blend for a specific dish, or a shelf-stable hot sauce — those can often qualify under the Homemade Food Act. New Mexico sellers have built thriving businesses around green chile powder, red chile sauce mixes, posole spice kits, and other shelf-stable interpretations of beloved New Mexican food traditions. Think creatively about your product concept before committing to the commercial kitchen path.
If you pursue the commercial kitchen path and produce TCS foods, temperature control becomes the core of your food safety system. These are the fundamental requirements that apply to any food business handling TCS products in New Mexico.
All TCS foods must be stored and transported at 41°F (5°C) or below. This applies to finished products, raw ingredients, and any intermediate stage of production. Use a calibrated thermometer to verify refrigerator temperatures daily. When transporting, use insulated coolers with ice or ice packs sufficient to maintain temperature.
If you are selling hot prepared foods at events or through a food booth, all TCS foods must be maintained at 135°F (57°C) or above during service. Foods that fall below this temperature and are not reheated to 165°F within two hours must be discarded. Plan your production, transport, and service logistics carefully to stay out of the danger zone.
When cooling TCS foods after cooking, the FDA Food Code requires moving from 135°F to 70°F within 2 hours, then from 70°F to 41°F within an additional 4 hours (6 hours total). Rapid cooling methods — shallow pans, ice baths, blast chillers — are required for commercial operations. This is one of the most common sources of foodborne illness in food businesses that are not careful.
Describe your product and get a TCS classification with New Mexico-specific guidance — so you know whether your recipe qualifies under the Homemade Food Act or requires a commercial kitchen.
Create Free Account to Use This Tool →While prepared meals require a commercial kitchen, New Mexico gives home sellers extraordinary freedom with shelf-stable products. SellFood.com helps you list, label, and sell — with the required New Mexico disclaimer pre-filled on every label.