Fondant Cupcake Toppers - FDA approval

As I sort through all the legal confusion here in NY I am now investigating the legalities of selling fondant cupcake toppers.

Do these need to be FDA approved ?

I was informed by the inspector for the Dept. of Ag. last year that they would be allowed seeing as I was producing them with commercially prepared fondant and gum paste ( Satin Ice ) and not manufacturing the fondant in my home kitchen. I was told as long as my packaging met FDA requirements, that I was good to go and it did not fall under the Home Processor Exemption.

Now, I have conflicting info.

I have read where I do need to be FDA inspected to sell cupcake toppers and I need to apply to them for approval.

BUT, I just found the following info online that confirms what my inspector told me. 

'Food manufacturing facilities must be registered with the FDA and certified for inspection before foods can be sold at market. If food manufacturing occurs in a residential kitchen, the residential kitchen will not need to be registered with the FDA. The FDA expressly states, however, that if manufacturing occurs on a residential property but not in the home (i.e., the garage), registration is required....

Confirm the ingredients of your food product. The FDA does not require pre-approval of many food items. Basic food ingredients that are regarded as traditionally safe (i.e., flour, sugar, eggs) do not need pre-approval....

Confirm whether the packaging that you will use on your food product requires pre-approval. Food packaging is considered a food additive for regulation by the FDA as it can transfer chemical compounds to food. Some food packaging such as wax paper, plastic cling wrap or foil do not require FDA approval.'

Does anyone know what is correct? 

I am getting so frustrated trying to wade through the conflicting info I was given from last year to this year.

Help!

I'm just trying to be a legal eagle.

Update: ( for anyone with questions on producing marketing fondant cupcake toppers ).

I just spoke spoke with an agent with the FDA in Maryland / DC ( wherever the main office is ).

These toppers , made in a home kitchen with commercially produced fondant sourced from an FDA approved vendor are OK.

She said if they are being produced in a home kitchen the FDA does not need to inspect.

Also important is that the fondant and gum paste is not adulterated. 

If you add color, flavor, or add any other substance to the commercially produced fondant you would have to be registered with the appropriate department in your state. Here it's the Department of Ag.

She also recommends keeping good records of the lot # from the fondant container used for each order should someone become sick from your topper it can be traced back to the correct source.

I was informed as long as I am registered with the sales and taxation dept. in my state and collecting sales tax on retail sales and reporting my income to the IRS these can be sold to the public.

So, this confirms what the inspector told me last year and disproves the info I was given yesterday.

It amazes me how confused these agencies are when it comes to policies and laws.

The agent I spoke with sounded confused when I explained the product to her so

I will be calling our local FDA department to verify the info the national office gave me before moving ahead with  sales because I'm finding you must get the best out of 3 answers to CYA.

Thanks! I'm glad this helps.

The first call I made to the FDA the agent had no clue and just referred me to the website, which I had already spent enough time trying to navigate. 

I hung up , called back and got someone MUCH more knowledgable.

What Red tape though, Our Department of Ag, says I cannot sell fondant toppers to the public. it's "unauthorized internet use" and violates the Home Processor Exemption.

The FDA says I can sell them as long as I am using commercially prepared , unadulterated fondant. They say the Dept of Ag. is wrong and out of bounds as it's not being produced in my kitchen and "only a cupcake coming out of my oven should be their concern."

Not even calling the Dept. of Ag. back because they will just tell me the FDA is wrong.

They sure don't make doing things right very easy...