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Some states have embraced "food freedom" laws that exempt home producers from many food-safety laws.
This story was originally published by Stateline, an initiative of The Pew Charitable Trusts.
WASHINGTON — Jenny White made her first batch of chocolate truffles two decades ago, soon after she finished eating the last delicious ones—flavored with blood orange and ginger—she had carried home from a trip to France.
“Maybe I can recreate this,” she thought. Today, chocolate truffles flavored with blood orange and ginger are among the most popular items of Swoon Chocolates, White’s fledgling cottage-foods business.
White, a self-taught chocolatier, creates her treats in the kitchen of her apartment here and sells them at pop-up shops and public events around the nation’s capital.
Her day job is as a government contractor—“a perfectly respectable career choice,” she said, “but chocolate is more interesting.”
She is one of only two legal cottage-food producers in Washington, D.C., where a few years ago it was against the law to sell home-prepared foods to the public. Food had to be prepared in a commercial kitchen.
As more consumers shop at farmers markets and “eat local,” U.S. local food sales, including cottage-food sales, have soared from $5 billion annually in 2008 to a projected $20 billion this year, according to former U.S. Agriculture Secretary Tom Vilsack.
Every state except New Jersey now allows home-kitchen cooks to make and sell non-hazardous foods with a low risk of causing foodborne illness such as baked goods, jams, jellies and other items that do not require time and temperature controls for food safety.
Maine, North Dakota, Utah and Wyoming have gone further, enacting “food freedom” laws that exempt home producers from food-safety rules that apply to grocery stores, restaurants and other food establishments.
Advocates see food freedom as a matter of personal liberty and think informed consumers can make their own choices. The issue is a cause among those who want less government regulation.
“Some legislators just forget common sense. Sales of homemade foods have been going on for hundreds of years,” said Erica Smith, an attorney with the Institute for Justice, a constitutional rights law firm that successfully sued Wisconsin and Minnesota to allow cottage-food sales.
A lawsuit filed in December 2017 by the institute and the New Jersey Home Bakers Association challenges the constitutionality of New Jersey’s cottage-foods ban. No trial date has been set.
“I want to bake and earn some extra money on the side,” said Heather Russinko of Franklin, New Jersey, one of the plaintiffs and the single mom of a 15-year-old son.
After she took cake pops to her son’s school and sports groups, people wanted to order baked goods, but, she said, “I found out it was completely illegal.” So she gives away the treats.
‘Cottage Foods on Steroids’
Proponents say cottage foods are as safe as commercial foods, if not safer, because producers are cooking for their neighbors. But many health officials worry about food safety.
“We do not believe it is unreasonable to expect people who are making food to make it safely,” said Joe Corby, former executive director of the Association of Food and Drug Officials and a former director of food safety in New York’s Agriculture Department.
His association, based in York, Pennsylvania, issued guidelines in 2012 for cottage-food regulations, spelling out best practices, including which foods are safe to make at home, what labeling is necessary and where foods may be made — only in the kitchen of someone’s primary residence.
Each state has its own food-safety laws, and the federal government rarely intervenes. The federal government has authority over food in interstate commerce, but state law traditionally has regulated food produced for sale within state lines, according to “Cottage Food Laws in the United States,” updated in 2018 by the Harvard Law School Food Law and Policy Clinic.
However, when the Maine legislature passed a food sovereignty law in 2017 that allowed municipalities to set their own food-safety ordinances, the U.S. Department of Agriculture threatened to take over meat inspections in the state.
The Maine legislature clarified that localities must abide by federal meat and poultry regulations.
“Food freedom is pushing the envelope. It’s basically cottage foods on steroids,” said Doug Farquhar, program director for environmental health at the National Conference of State Legislatures. “It’s a pretty risky proposition.”
State legislatures this year have introduced at least 39 bills related to cottage food, including three food-freedom bills, NCSL’s Farquhar said.
New Mexico and West Virginia are considering food-freedom laws, while North Dakota legislators might clarify their intent in a 2017 law. A food-freedom bill in Mississippi died in committee in February.
During the 2017 and 2018 sessions, 12 cottage-food-related bills were enacted in 10 states, according to NCSL.
Fresh Banana Cream Pie
The Wyoming legislature adopted the nation’s first Food Freedom Act in 2015, after rejecting it five times in seven years. The measure finally sailed through after a provision was removed allowing the sale of raw milk and meat. The state law was expanded two years later to include raw milk and some meat products.
“Meat products were the most controversial,” said state Rep. Tyler Lindholm, the Republican sponsor, who introduced expansions in 2017 to include direct sales in-state of up to 1,000 chickens per farmer, as well as fish and rabbit.
The Wyoming law allows homemade food and drink to be sold directly to a consumer for home consumption without state license, inspection or regulation. Sales are exempt from state sales tax.
“As we suspected, small business is self-regulating,” Lindholm said. “When you’re at the farmers market in a town of a thousand people, you know where your products are coming from, and everybody knows it’s not an inspected product.”
He would like to add red meat to the food-freedom law, but meat inspection is required by the U.S. Department of Agriculture.
“Doing business in a small town, the farmer will spend more time inspecting the meat than the 2.7 seconds the USDA inspector spends,” he said.
In Wyoming, the least-populated state, with just under 580,000 residents, the Department of Health has not received any reports of foodborne illness from homemade goods, according to Tiffany Greenlee, an epidemiologist with the agency. “That doesn’t mean outbreaks aren’t happening, but they’re not reported,” she added.
When North Dakota passed a similar food-freedom law, the North Dakota Grocers Association opposed it as fostering unfair competition.
“It seemed unfair in a rural state like North Dakota with a lot of small, rural stores that we have to follow all these health regulations when the cottage-food people can do whatever they like,” said John Dyste, president of the grocers association.
Last year, the North Dakota Health Department started requiring that foods needing refrigeration be sold frozen if transported to a farmers market. The agency allows food to remain refrigerated if sold from the home.
“We want to be sure we provide safe food to the markets,” said Julie Wagendorf, director of the agency’s Division of Food and Lodging. “If they’re going to come and pick them up, it’s the consumers’ responsibility.”
But advocates for food freedom strongly objected, saying the law intended no rules. The requirement to freeze goods especially rankled advocates and other critics of the proposed rules.
“What happens if you have a fresh banana cream pie? It’ll ruin if it’s frozen,” said LeAnn Harner, a dairy goat farmer in Oliver County, North Dakota, who led the food-freedom fight in the legislature.
Harner says the law needs to be clarified, as does North Dakota state Sen. Jerry Klein, a Republican who sees himself as a referee. He introduced a bill to clarify that some regulations are acceptable.
“We don’t want to over-regulate, but we need some regulation,” said Klein, a retired grocer.
“The concern is, we don’t want them selling lasagna out of the trunk of their car,” he said. “That happens—then you’re in food service.”
D.C. More Restrictive
The nearly limitless cottage-food laws in North Dakota and Wyoming are far from what’s happening in Washington. The D.C. City Council passed a cottage-food act in 2013, but final rules were not issued until December 2017.
White received approval as a cottage-foods producer in November, shortly after Emily Annick, who was the first. Two other producers are in the application process.
On a Friday afternoon after work, Annick bends over the granite kitchen island in her condo and carefully pipes warm chocolate ganache into dozens of miniature jars to sell at a food festival the next day.
“I love it,” she said of her part-time business—440 Confections, named for her home address—but, she added, “There are a lot of restrictions in the District.”
Before Annick could sell a single jar of her “Chocolate Goo” ganache or White could sell her first chocolate truffle, both had to pass a certified food protection manager course. The local health department inspected their kitchens and observed Annick’s cooking.
Each had to submit a product for lab analysis, send in a list of the specific items for sale, obtain a business registry number and follow more rules, including limits on where the product can be sold. They must collect sales taxes and make no more than $25,000 in gross revenue annually, to make sure the operations stay small. Larger operations have different rules and license requirements.
“Honestly, in the District, you are very limited if you have a full-time job or family and can only sell at farmers markets or public events,” Annick said.
Still, she thinks her cottage business is a good first step toward her goal of someday opening a bakery.
Across the Potomac River in Alexandria, Virginia, Chad Breckinridge needed a diversion from his day job as a government attorney, so he started making bagels in his home kitchen to sell at a farmers market in 2015.
Virginia’s cottage-food law isn’t nearly as strict as Washington’s.
“It was quite easy,” Breckinridge said. “I had to assure the health department I wasn’t selling anything that required temperature control—and that was basically it.”
His Bagel Uprising business was so successful that two years later, he moved on to making and selling the bagels at a local cafe. Breckinridge recently signed a lease on a storefront in Alexandria and plans to open his first permanent Bagel Uprising shop this spring.
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