By: Brianna Johnson-King and Vrushab Gowda, FLPC students
Selling homemade food – from baked goods to complete meals – provides an opportunity for millions of people in America to support their families and share their culture with others. Currently, forty-nine states and Washington, DC have in place cottage food laws, allowing for the sale of low-risk foods like bread, tortillas, popcorn, or coffee beans. Their requirements vary, with some requiring operators to obtain a permit or limit their annual sales to a certain dollar amount. Of these forty-nine states, two, California and Utah, take one step further and permit individuals to sell full meals through what they call “microenterprise home kitchens”(Utah’s law to allow such operations was signed by its governor just this year). Two others, Wyoming and North Dakota, offer home cooks even broader flexibility via “food freedom” laws.
Cottage food operations, microenterprise home kitchens, and food freedom laws support culturally distinct foods and create economic opportunities for residents. Many individuals possess the skills and knowledge to make foods that may not be available in common grocery stores, but are nonetheless valued by their community. These laws not only support individuals in sharing their culinary traditions, but also provide them with income streams. This has become especially important during the COVID-19 pandemic, which caused millions of Americans to lose their jobs, resulting in a record high unemployment of 14.7 percent in April 2020. Restaurant workers were among those hardest hit by unemployment during the pandemic, but also among those most likely to have skills applicable to making and selling home foods. These laws would allow individuals to make healthful foods from their own kitchens and generate means of supporting their families.
State legislators across the United States are increasingly recognizing the need to expand available permits for sales of home-produced foods. In the current legislative cycle (as of April 2021), forty-four bills have been introduced in twenty-nine states to either expand on existing state cottage food laws or to allow microenterprise home kitchens. More than half of these bills broaden the list of cottage foods that can be sold and over a third allow individuals to sell foods requiring temperature control for safety, sometimes called potentially hazardous foods, such as meat, dairy, and eggs.
In addition to trends toward increasing the types of foods that can be produced in a home kitchen, two other patterns are prevalent: states expanding the method of permitted sales and raising the annual sales caps. Over a third of introduced bills would allow cottage food operators to sell their foods online, over the phone, or through the mail. These provide sellers with significant flexibility and increase the volume of potential customers, as most states previously only allowed sales of cottage foods via in-person transactions at farmers’ markets, charitable functions, or bake sales, as well as deliveries by the producer to the consumer. A recent Massachusetts bill would permit all of the above, and additionally exempt cottage food operations from further restrictions by the state department of health, municipalities, and local zoning boards. A New York proposal would moreover permit sales through third-party delivery services, such as UberEats or Postmates. States have also increased or removed the gross annual sales caps for cottage foods altogether. For example, a bill in New Hampshire would remove the state’s $20,000 ceiling, while other states, like Florida, would increase the gross annual sales limit to as much as $250,000.
As noted above, beyond cottage foods, some states seek to establish Food Freedom laws, while others allow home cooks to sell full meals prepared in home kitchens, via microenterprise home kitchens. These allow residents to sell almost any homemade food without inspection, licensing or permitting restrictions. Five states have introduced Food Freedom laws, including Arkansas, Iowa, Minnesota, Mississippi, and Oklahoma. These states would join others who have enacted such laws earlier, including Wyoming and North Dakota. Additionally, four states have introduced microenterprise home kitchen bills, including Washington, Utah, New York, and California. Prior to 2021, California was the only state to have passed a microenterprise home kitchen bill. This year it has introduced legislation amending labeling and advertising regulations for its microenterprise home kitchens, and Utah became the second state to pass a microenterprise home kitchen bill. These states lead the country in empowering public choice while supporting local economies.
The forty-four bills introduced this cycle highlight a shift in legislators’ views of homemade foods. Selling low risk products or even higher risk products in the small volumes produced in a home kitchen do not pose significant safety concerns, but allow legislators to support their constituents at a time when economic opportunity is crucial. In particular, these bills can help immigrants, women, people of color, and others who have historically faced barriers to launching businesses or accessing equitable economic opportunity. These groups have suffered disproportionately from COVID-19 and would stand to gain from expanded cottage food and microenterprise home kitchen laws. Their benefits will continue to be felt for years, far beyond the current pandemic. Young entrepreneurs seeking to open a small business, parents spending time at home with children, or elderly individuals desiring to stay at home can all gain from these laws to support themselves and their families, all while expanding local food options for their community.
Food Law & Policy, Commentary
A grounding legal education in the Food Law and Policy Clinic
May 18, 2023