New York’s Making It Easier for Makers to Start Selling from Their Home Kitchens

Originally published by Edible Brooklyn on September 27, 2018. Written by Lisa Held.

What do the founders of Early Bird Granola, Pilot Kombucha, and Hungry Bird Eats have in common?

They started baking oats, fermenting tea and rolling crackers at home before turning their kitchen habits into food businesses.

It’s a story that’s so common it’s become a trope: Cool Brooklynite makes innovative food for friends. Friends urge him or her to sell said food. Food becomes top seller at Whole Foods.

However, there are many factors that influence how successful makers are at moving through that timeline, and a new report from Harvard Law School’s Food Law and Policy Clinic digs into one that doesn’t get a lot of attention: state laws that regulate the sale of small-batch foods made outside commercial kitchens.

“Cottage Food Laws in the United States” provides a comprehensive overview of how states create legislation and regulations related to cottage foods, common elements from state to state (like which foods are allowed and sales limits) and recommendations to strengthen laws.

It’s an important resource for makers in Brooklyn (and across the country) who are just starting out and may find it difficult to navigate issues like which foods they can make and where they can sell.

The team at food incubator Pilotworks, for example, said that it was common for students in its Launchpad program to experiment with production and sales from home kitchens before moving into a production facility like theirs, and that helping makers understand regulations is a critical role they fill. “We have to be deeply knowledgeable about federal, state and local regulations and how they apply to all types of food companies, large and small.”

In terms of findings (and especially given Brooklyn’s reputation as a maker mecca), how did New York’s cottage food law stack up against others across the country?

Emily Broad Leib, director of the Food Law and Policy Clinic and one of the authors of the report, said that New York’s law is generally supportive of cottage food producers and has eliminated most big barriers. “For example, New York is one of only a dozen states that allows for some wholesale sales of cottage food products, and one of 17 states that explicitly allow for online sales, which 13 states explicitly prohibit. It is also more permissive than many states by not setting an annual gross sales limit,” she said. “Further, New York meets one of our most important recommendations to provide easy-to-follow guidance, so cottage food producers are able to take advantage of the exemptions and know where to find relevant information.” (That information is available through the Department of Agriculture.)

The one area that the state could improve upon, Broad Leib said, is expanding the kinds of cottage foods that are allowed, since they are restricted to a specific list. State laws tend to allow for what they consider low-risk foods (like baked goods, jam and shelf-stable sauces) in terms of food safety concerns, since these small-batch businesses are often not required to adhere to the food safety regulations of bigger companies. (High-risk foods include dairy, meat, fish, eggs and so forth that require time and temperature controls to prevent the growth of microorganisms and the production of toxins.)

Another big finding from the report is that, nationwide, more states are introducing cottage food laws. Every state except New Jersey now has one, compared to 42 states in 2013, and a few states (like Wyoming) have introduced new “food freedom” laws that essentially allow almost any foods to be sold to an “informed consumer.” “Many states that allowed some cottage foods in 2013 have also broadened their laws to allow more types of sales,” Broad Leib added.

The authors of the report see this shift as overwhelmingly positive and write that making it easier for small-batch food producers to get started supports local food economies. Evidence on the impacts of the laws, however, is basically nonexistent, and Broad Leib sees it as an area ripe for research.

“What we do know is that there is a lot of consumer interest in purchasing food from their neighbors and from within their own communities, whether or not this food follows safety regulations, and that there are many producers interested in using cottage food production as an avenue to start a small business, or at least to test out their markets before building a more traditional food business,” she said. “To the extent that cottage food laws allow these new market opportunities to take place without any costs to the state, they bring a lot of benefit.” In other words, other states likely want in on the Brooklyn maker phenomenon, too.