Selling home-cooked food is getting easier, thanks to pandemic-fueled deregulation

Originally written by Emily Heil and published by The Washington Post.

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Martha Rabello is ready to start baking again. The mother of three from Fanwood, N.J., had seen her dream of someday owning a storefront bakery slip away.

Rabello started a cookie company a few years back, and then the rent for the commercial kitchen she needed to legally produce the treats she once sold to neighbors and friends eventually became too much for her to justify.

But last week, new regulations took effect in New Jersey allowing home bakers to sell their wares. It is the last state in the country to give up its ban on “cottage food,” products such as baked goods and jams made in home kitchens and sold at farmers markets and by hand delivery, and advertised though online portals, social media or simply word of mouth.

Now Rabello, who hopes to build up her business at home before setting up a bricks-and-mortar shop, is planning to use her kitchen to produce her signature cookies in two flavors that she says are designed to pair well with a cup of espresso: one with cornmeal and fennel seeds, inspired by cakes her grandmother made when she was growing up in Brazil; and another with espresso and dark chocolate.

“I have everything all planned out in my head,” Rabello says.

Cooks like her across the country are increasingly taking advantage of loosening laws allowing them to make and sell baked goods — from cupcakes to cocoa bombs — from their homes. While every state has dropped its outright ban on such businesses, many still have varying levels of restrictions. Some require permits or food-safety training, and many set caps on how much income a home cook can bring in.

The pandemic accelerated the trend toward deregulation of all kinds of homemade-food sales. Amid lockdowns, many people were out of work, particularly in the restaurant business, and looking for ways to make a little cash. And consumers, wary of supermarkets and restaurants, embraced delivery and takeout like never before.

In New Jersey, regulators had come under pressure by a lawsuit from the New Jersey Home Bakers Association, of which Rabello is a member. Elsewhere over the past year, a dozen other states loosened laws on sales of home cooking. Those ranged from modest moves in Arkansas, which expanded the kinds of shelf-stable foods people could sell and permitted them to sell online and to retailers, to more sweeping changes in such states as Montana, which now allows people to sell almost all kinds of foods and meals — with the exception of certain meats — directly to consumers.

The rollback of such restrictions across the country is due in part to the disparate political forces that it brings together. “I think that’s the magic sauce that has gotten a lot of these bills passed,” says Emily Broad Leib, deputy director of the Center for Health Law and Policy Innovation at Harvard Law School. “It’s a unique opportunity to cut across traditional lines.”

Many of the legal challenges to various regulations and statutes have been brought by the Institute for Justice, a libertarian-leaning law firm. In addition to small-government advocates, the effort to allow more sales of home-cooked fare draws support from more liberal people because of its emphasis on helping women, particularly low-income, minority and immigrant women.

Women make up 83 percent of cottage-food-makers, according to a 2018 survey by the Institute for Justice, which also found that the demographics skewed to low-income women living in rural areas.

Rabello’s story helps explain why the cottage food industry appeals to so many women, who are disproportionately responsible for child-care and housekeeping duties. She plans to bake while her kids are at school or at night after their bedtimes, she says. “There’s nothing like an empty kitchen,” she says. That’s the kind of flexibility she didn’t have at the commercial space she rented — many rentals offer cooks set hours when they can access the space.

Many of the women Rabello met through the bakers’ association and its lobbying efforts — the group had also pushed for a bill in the state legislature, but it stalled — were in similar need of a more accommodating setup, she says.

“So many people just needed to supplement their income for a while, maybe for a prescription,” Rabello says. “Some were disabled and could only work from home. Some were military spouses.”

And some advocates want to push further, making it legal for home cooks to not only produce and sell baked goods, but full meals as well. That’s legal in a handful of states: Montana, Utah, Wyoming, Oklahoma and North Dakota allow some kinds of these sales. And last year, California adopted a law allowing counties to opt in to legal home-food sales. So far, a number of districts, including the city of Berkley and Alameda County, Calif., have legalized them.

Erica Smith Ewing is a senior attorney for the Institute for Justice, which is overseeing lobbying and litigation in a number of states aimed at allowing what the group calls full “food freedom.” Ewing says that the pandemic experience of loosening food laws underscores the economic empowerment it offers.

“We’re seeing that this is a huge opportunity for people to support themselves and their families and their farms,” she says. “It’s what people want and it’s what they need.”

Alvin Salehi, a co-founder of the Shef, an online platform for home cooks, also sees this as a moment to seize. He calls the passage of the new rules in New Jersey, and the fact that cottage food sales are legal in all 50 states, “an inflection point.”

“It’s a signal that a shift to making income at home is here to stay,” he says. And now that all states have some kind of regulatory framework for at-home cooking, the question, he says, is simple. “Now it’s just a matter of, can we adjust and update them to be more permissive to enable people to cook more foods from home?”

His company — which functions a little like Uber for people looking to sell homemade food — operates differently in the different markets it serves. In some areas, sales of home-cooked foods are allowed, and in others, Shef offers cooks access to commercial kitchens to prepare their meals.

Not everyone is onboard with such changes, though. Local health departments and traditional food retailers have often been wary of proposed changes. In New Jersey, a group of grocers complained to regulators that cottage food makers would be operating under different standards than they do.

But home cooks have long contended that their food — the kind they’ve always served friends and neighbors and offered at bake sales and school events — is safe. And advocates say the small businesses aren’t a meaningful threat to existing venues.

And some note that with the proliferation of online platforms that allow people to market and sell all kinds of goods and services, such as Facebook Marketplace, Nextdoor and Instagram, home cooks are already selling their wares, whether it’s legal or not. Broad Leib says public officials aren’t necessarily creating new markets when they legalize more home-food sales, they’re just getting ahead of the curve: “In a lot of places,” she says, “legislators and regulators are thinking, ‘how much of this is going on anyway, so we might as well put in place guardrails.’ ”