Via The Center for Health Law and Policy Innovation
By: Amy Hoover
Amy Hoover was a FLPC summer intern and Cottage Food Laws in America report co-author.
An innovative bill on the verge of being signed into law in California could create a new frontier in the state laws that allow cooks to sell food made in home kitchens. Building on the success of cottage food laws, which allow food producers to sell certain low-risk homemade foods, this new law would open up sales opportunities for entrepreneurs selling a wider array of foods, including hot meals, made in their homes.
Cottage food laws are now commonplace across the United States. In the timespan between FLPC’s 2013 report on cottage foods and our new report released last month, cottage food laws passed in seven additional states and the District of Columbia, bringing the total of states with cottage food laws to 49. Furthermore, many states have updated their cottage food rules to expand the types of products or scale of production that is allowed under their cottage food provisions.
Although cottage food laws vary tremendously from state to state in their details (just check out our 50-state appendix for an interesting snapshot of federalism at work), most have traditionally followed a fairly standard basic structure. These laws typically allow home cooks to sell limited types or categories of foods that pose low food safety risks when held at room temperature, subject to certain sales limits. Higher-risk food items that require time and temperature control for safety, such as meats, cooked vegetables, and premade meals, are not allowed under these cottage food laws.
All cottage food laws followed this basic pattern until 2015, when Wyoming broke away from the typical cottage food law with its food freedom law. In contrast to other cottage food laws, Wyoming’s law removes almost all limitations on what types of foods home producers can sell. It requires only that cottage food producers sell directly to “informed end consumers” for home consumption. Within these limits, home food producers’ actions are not regulated by the state. Since Wyoming’s food freedom law passed, North Dakota and Illinois have also passed laws based on this model (although with more constraints than Wyoming’s law).
Another new frontier in homemade foods is now on the horizon in California, where a coalition of food advocates is on the verge of securing enactment of A.B. 626. If (or at this point, perhaps when) A.B. 626 becomes law, in addition to making low-risk foods under the state’s existing cottage food law, home producers will have another, more expansive option: the proposed law would allow home cooks to sell almost any foods, including hot prepared meals. Within the proposed law’s oversight and food safety framework, home cooks in California would be able to make and sell foods that need time and temperature control for safety—exactly what almost every cottage food law forbids.
Although both California and Wyoming have sought to broaden the types of foods that home producers can sell, A.B. 626 innovates in a very different way from Wyoming’s food freedom law. Wyoming’s law exempts homemade food producers from any state oversight. In contrast, the California bill allows home cooking but subjects “microenterprise home kitchens” to a new set of regulations. The bill’s permitting and licensing requirements (more than for cottage food producers; less than for commercial food operations) are designed to create a new avenue of economic opportunity for home cooks while ensuring food safety.
Alongside its innovative elements, A.B. 626 retains several of the features that have helped cottage food laws successfully balance food entrepreneurship and food safety. It allows only direct sales, on the theory that a personal interaction between cook and consumer can create a relationship that reduces the need for government oversight. It also limits annual gross sales, number of meals sold, and number of employees, meaning that only micro-scale operations are allowed under the proposed law. But even these small operations can help home cooks make some extra money and test the market before they scale up and face the costs of complying with the full array of food safety regulations for commercial operations.
With overwhelming bipartisan support, A.B. 626 is well on its way to becoming law. It passed California’s Assembly on January 29th, and just recently, on August 28th, it passed California’s Senate. Now, Governor Jerry Brown has until September 30th to sign the bill into law. Its enactment can provide a new model for homemade food sales and may well set the stage for future shifts in cottage food laws nationwide.
In California and other states across the nation, food entrepreneurs, lawmakers, and regulators are innovating and experimenting to open up new opportunities for safe and delicious homemade foods. To learn more about the recent trends in cottage food laws nationwide, check FLPC’s new definitive guide, Cottage Food Laws in the United States.
Filed in: Legal & Policy Work
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