Food Freedom

Health Departments Continue to Sabotage Home Cooks Across the Country

New "cottage food" reforms haven't yet increased freedom.


Home cooks try samples of dried fruit during at a cottage food workshop in Modesto, Calif. Credit: Joan Barnett Lee/ZUMA Press/Newscom

Shelli Eng lives in Erie, Illinois, a village about 100 miles due west of Chicago. For years, Eng, known as the "Bread Lady," has sold baked goods at a local farmers market and two other locations. But then county regulators, red tape in hand, came calling. Now her business is in jeopardy.

But it really shouldn't be, because Illinois has a law that's meant to protect folks like Eng. Adopted in 2011, and later expanded, the state's "cottage food" law allows home cooks to make and sell low-risk foods without using a commercial kitchen. These laws lower the barriers to entry for countless home cooks. As I noted in 2013, they "help budding culinary entrepreneurs escape often crushing regulations faced by restaurants and other food sellers."

But the true potential of these laws haven't been realized, as I write in my recent book, Biting the Hands that Feed Us: How Fewer, Smarter Laws Would Make Our Food System More Sustainable. That's largely due to the fact many cottage food laws kinda stink (or, as I put it in more delicately my book, are "still too strict"). And state and local health departments are often to blame.

That brings us back to Eng.

To placate the state's health department, which opposed the cottage food law, Illinois lawmakers forced Eng and others to rely on the benevolence of their local health inspectors. These local lords have veto power over whether their respective jurisdictions will adopt the law.

Unfortunately for Eng, she sells her baked goods in Whiteside County, where the local health inspector vehemently opposes cottage food entrepreneurs like her. According to, the county health department administrator, Beth Fiorini, "does not want a cupcake law in her county[.]" Fiorini cites a litany of food-safety concerns. But such claims haven't held up, as I told The Economist in 2015.

The county's stance has left Eng "crustfallen," notes. She's circulating a petition she hopes will push her county to change its law.

But Eng is hardly alone in dealing with a cottage food law that promises much more than it delivers. As I lamented in a 2011 Hit & Run post, "in spite of the good intentions behind [cottage food] laws, they sometimes merely create a parallel system of numbingly stupid regulations."

Forty-nine states currently feature cottage food laws. (New Jersey, among countless other demerits, is the only state that doesn't have such a law. That earned the state a big fat lawsuit to overturn the ban, which the Institute for Justice filed last month.)

North Dakota adopted a more permissive type of cottage food law, dubbed a "food freedom act," last year. That was spectacular news. But the state has so far botched implementing the law.

First, the state health department announced public hearings on rules to implement the law. Then supporters of the law said they were disappointed with the rules the health department had proposed. Facing a backlash over the rules, the health department cancelled the remaining public hearings and said they'd go back to the drawing board.

One North Dakota cottage food supporter said she was "delighted" that the health department had pulled the proposed rules, arguing they "'flew in the face' of what the Legislature had intended."

Other cottage food reforms are underway in states across the country. In Alaska, a bill currently making the rounds would expand that state's cottage food law. Maryland also appears likely to loosen its restrictive cottage food laws this legislative session. But the Maryland reforms would only go so far. For example, the current bill still wouldn't allow for retail food sales.

California's cottage food law is a pretty good one. A 2013 report on cottage food laws notes California's law allows sales to restaurants, retail establishments, and farmers markets.

But it's not good enough. For one, while many states allow the sale of all "non-potentially hazardous foods" under their laws, California's regulations enumerate specific foods a cottage food entrepreneur may sell. If it's not on the list—as, say, dehydrated fruit isn't, even though both dried fruit and dried or dehydrated vegetables are—you can't sell it.

That's one reason a California assemblyman is currently working to reform that state's cottage food laws, too. He says he and his constituents find them frustrating and "overly complicated." This is the case with so many cottage food laws. Their promise lies in their ability to facilitate the awesomeness of budding entrepreneurs. But their reality, thanks to the meddling of so many health departments, often is that they simply operate as a different kind of red tape.

NEXT: The Radical Freedom of Dungeons & Dragons

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  1. OK, so what we have here is basically laws that say things like…

    “We the State Bigwig Bumfuck Lawmakers of South New Boogerstanstanstanstanistan, do hereby decree, in the strongest, irrevocable and iron-clad-lockbox-style manner, that from here on in, no silly regulators of the Ministry of Silly Regulations will poop on yer Momma for baking harmless foods!!! Dammit! And you can take that to the bank! We really, really, REALLY mean it, this time!

    “Except if the local Bumfuck Lawmakers get their panties in a wad, that is.”

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  3. Businesses are greedy. They will do anything for a buck. They don’t care if they poison their customers. And without government oversight, that is exactly what they will do. Could be because they are ignorant, but more likely because they are malicious. Only government overseers can save us from these predatory businesses.

    Especially where food is concerned. If not for government all food would be poison.

    1. All food IS poison. Eat too much of anything, and you will die, because by definition, “too much” is too much.

    2. Isn’t that same kind of inexplicable malice what you attribute to regulators?

      1. Regulators don’t have any reason to care if their subjects get poisoned. They keep their jobs regardless.

        1. They have bosses like anyone else, except their bosses are democratically accountable, which is more than can be said for CEOs, who with no regulation might consider it best to poison a few people on a cost-benefit basis.

          1. Except in reality the “democratic accountability” is negligible. Few voters are thinking of the health inspection regime when they vote for their representatives. Even those who do their homework are, thanks to byzantine ballot access laws, faced with a choice between two candidates (if they’re lucky) and dozens to hundreds of areas of government action to take into account. Plus the civil service laws shield bureaucrats from “democratic interference”.

            Whereas when someone decides to buy food, they have innumerable choices, and any risk of being poisoned by it is front and center in their decision. A company that has poisoned its customers is doomed immediately upon this fact being discovered, not whenever the next election comes up. It’s almost as if the free market regulates itself far quicker and better than the government can.

            1. So rather than the status quo, where you and I can go to damn near any restaurant anywhere without fear of being poisoned, you’d prefer a system in which we engage in a sort of natural selection in which we wait around to see who poisons people before we stop for a sandwich?

              Were regulations invented by malicious people who just wanted to annoy decent folks? Or perhaps was the natural selection model a bit too inefficient?

              1. The natural selection process was too slow for those who happen to have lawmakers on their payroll and want to eliminate competition.

              2. you’d prefer a system in which we engage in a sort of natural selection in which we wait around to see who poisons people before we stop for a sandwich

                Holy strawman, Batman. That didn’t happen before the FDA and health boards existed, so hard to see how it would happen now. Most of the improvement in food safety has been due to scientific and technological advances, not regulation.

                And of course, you’re now trying to have it both ways; you laud government regulation because health inspectors are “democratically controlled”, but then claim that they protect out-of-state travelers who can’t even vote against them or their bosses. But the CEO of McDonalds has far more reason to care about an Indiana resident getting poisoned at a McDonalds in California than a California health bureaucrat does.

              3. I can go to damn near any restaurant anywhere without fear of being poisoned,

                Except for Chipotle. Or your local burger joint on the days someone leaves the patties out for a little too long. Or any of the innumerable restaurants that, at any time, could violate some standard and leave you open for ‘poisoning’.

                But hey – you keep thinking that that ‘A’ in the window is all the protection you need.

                1. So the solution is to let Chipotle do business as usual minus the health inspections?

              4. Were regulations invented by malicious people who just wanted to annoy decent folks? Or perhaps was the natural selection model a bit too inefficient?

                Yes. They were invented by malicious people who wanted POWER and saw a ‘problem’ as a means to gain that power. That they can now tell themselves that they are ‘good people’ because they got some rando housewife locked in a cage is just icing on their cake.

                After all, if they hadn’t a done what you told them not to do, they’d still be alive, right Mr Blonde?

              5. Tony|4.7.18 @ 1:19PM|#
                “…you’d prefer a system in which we engage in a sort of natural selection in which we wait around to see who poisons people before we stop for a sandwich?”

                Ya know, wild speculation is about par for your game, idiot.

              6. Ever hear of Chipotle? They took a hit when they had some health issues. People voted with their stomachs.

              7. “you’d prefer a system in which we engage in a sort of natural selection in which we wait around to see who poisons people before we stop for a sandwich?”

                Not necessarily. We have the internet now, although I’ve read some rumors that Yelp extorts money from businesses to shield them from bad reviews, and I can totally see that being an issue. Regarding cottage foods specifically, I’ve always perceived farmer’s markets to be at-one’s-own-risk. 99% of the time it’ll be fine because people have integrity when engaging in local activities; I probably wouldn’t try food from a new seller with my immunocompromised grandmother, but a night of vomiting won’t kill me. College desensitized me.

                I struggle with this question regarding the FDA, too. The $2-3 billion required to clear a drug is directly correlated to the extreme prescription prices in this country, but they actually do a decent job even if it costs way too much and takes way too long. I think it should be voluntary. They do something similar with drugs for terminal illnesses where patients can try unapproved or pending drugs as a hail-mary, and I think that’s a great idea. Restaurants could do the same thing. Sell without approval and caveat emptor, or pay to put that A in the window to ease the minds of their customers. My city keeps trying to regulate food trucks and we keep complaining so much that they just drop the issue. Don’t fuck with my halal gyro cart guy and his mystery lamb meat.

          2. who with no regulation might consider it best to poison a few people on a cost-benefit basis.

            1. Businesses already have bosses – their customers. Poison your customers and they’ll fire you.

            2. Kind of how the government already does it? Flint, Michigan – for example. Or Tuskeegee? The Stateville Penitentiary Malaria Study? A 1948 study in Guatemala, U.S. researchers used prostitutes to infect prison inmates, insane asylum patients, and Guatemalan soldiers with syphilis and other sexually transmitted diseases? Operation Sea Spray? In 1952, Chester M. Southam, a Sloan-Kettering Institute researcher, injected live cancer cells, known as HeLa cells, into prisoners at the Ohio State Penitentiary. Operation Big Buzz? project SHAD?

            Researchers in the United States have performed thousands of human radiation experiments to determine the effects of atomic radiation and radioactive contamination on the human body, generally on people who were poor, sick, or powerless. Most of these tests were performed, funded, or supervised by the United States military, Atomic Energy Commission, or various other U.S. federal government agencies.

            In a 1949 operation called the “Green Run,” the U.S. Atomic Energy Commission released iodine-131 and xenon-133 to the atmosphere near the Hanford site in Washington.

            1. From April 10, 1945 to July 18, 1947, eighteen people were injected with plutonium as part of the Manhattan Project.

              Albert Stevens, a man misdiagnosed with stomach cancer, received “treatment” for his “cancer” at the U.C. San Francisco Medical Center in 1945. Dr. Joseph Gilbert Hamilton, a Manhattan Project doctor in charge of the human experiments in California had Stevens injected with Pu-238 and Pu-239 without informed consent. Stevens never had cancer; a surgery to remove cancerous cells was highly successful in removing the benign tumor, and he lived for another 20 years with the injected plutonium.Since Stevens received the highly radioactive Pu-238, his accumulated dose over his remaining life was higher than anyone has ever received: 64 Sv. Neither Albert Stevens nor any of his relatives were told that he never had cancer; they were led to believe that the experimental “treatment” had worked. His cremated remains were surreptitiously acquired by Argonne National Laboratory Center for Human Radiobiology in 1975 without the consent of surviving relatives. Some of the ashes were transferred to the National Human Radiobiology Tissue Repository at Washington State University, which keeps the remains of people who died having radioisotopes in their body.

              1. And that’s just a small sampling of the *directly government run testing*. That doesn’t include the unethical medical research done in private and state universities where the government was only paying the researchers’ bills instead of directing the research.

          3. Didn’t democratically accountable folks in Flint decide to poison a few people on a cost-benefit basis?

      2. Its the same kind of inexplicable malice that you attribute to everyone *except* regulators.

    3. Re: “They don’t care if they poison their customers.”

      Ask Chipotle restaurants how that worked out for them.

    4. If you think a 1-hour inspection by a govt employee twice a year is keeping your food safe in your local restaurant your nuts. The business owner is the person that makes sure the employees, who mostly don’t care, do things the right way. Improperly handled food can go bad in hours. No amount of inspections are going to protect you. The fact is that millions of meals are prepared daily with virtually no cases of food poisoning and zero inspections in months.

  4. Just another daily example of why government is evil. The very idea of coercive government means that sooner or later, everything which is not allowed is forbidden; they may start with a small list of forbidden things (murder, assault, theft), but it expands, and gradually government and governed come to the practical conclusion that remembering what is banned is harder than remembering what is not banned. That’s the tipping point, where government exists to allow or mandate a certain few things, and everything not mentioned is banned.

    Coercive government is the root of all government corruption.

    1. And yet coercive government is inevitable in any but the most sparsely populated human communities. So it looks like eternal vigilance to keep govt as small as possible is the only way. There’s no magical system that can do the work for you.

      1. There are a couple of things which would enhance the Constitution’s federalism.

        Any single state can nullify any federal law (but not the Constitution; no slavery, gun restrictions, state religion, etc) within the state. Individual states can be much better laboratories for experimentation. The counter is that federal laws will be combined into omnibus laws, discouraging nullification of the baby for dislike of the bathwater.

        Any individual within the jurisdiction of a law, whether directly affected or not, whether hypothetically affected or affected in actuality, can bring suit to void any law on grounds of internal inconsistency, lack of clarity, or inconsistent enforcement. If multiple laws are inconsistent with each other, they are all voided. The verdict is to void a law, not revise it; that is the legislature’s function. Inconsistent enforcement includes not just a wide variety of verdicts for similar cases, but lack of enforcement; traffic laws would be whittled down to the core necessities pretty quickly. Any non-unanimous appeals decision is also proof of a defective law; if learned judges disagree about its meaning, ordinary people can’t be expected to understand the law better.

        I would also require legislation to pass by 3/4 majority, and if 1/4 of legislatures in any chamber sign a repeal petition, the law is immediately voided. It has to be much harder to pass laws, and much harder for majorities to tyrannize minorities.

        1. I would also require legislation to pass by 3/4 majority, and if 1/4 of legislatures in any chamber sign a repeal petition, the law is immediately voided. It has to be much harder to pass laws, and much harder for majorities to tyrannize minorities.

          EXACTLY! If a law is necessary it shouldn’t be too hard to get 3/4 of the legislature to vote for it.

          I’d add punishments (via amendment) for those violating the Constitution.

          Anyone voting for a piece of legislation that’s subsequently found unconstitutional shall be immediately put to death in the public square by draw and quartering. And new elections be held immediately. Same goes for any overturned SC ruling.

          That should keep their heads down for a while.

          (Too extreme?)

          1. The biggest risk there is that you’d only get zealots in government, people willing to “die for the cause”, whatever they label as their cause. Plus it’d discourage the SC from ever tightening the restraints on government policies that passed muster initially, because they’d know it’d condemn people (possibly even themselves) to death. Plus any mechanism that allows anyone to get people they don’t like killed will eventually be abused.

            I don’t think penalties are a bad idea, but I’d stick to being barred from office or something at that level. If you couldn’t foresee the law would be struck down, you may or may not be evil, but you definitely don’t have the judgment needed to hold any office.

          2. I would love such a feature … but extreme punishments make people reluctant to do anything which might trigger that. If pickpockets were eligible for the death penalty, how many juries would convict them?

            I think it would be enough to simply ban transgressors from ever again receiving any government funds of any kind. But even that brings interpretation problems. Is traveling on government roads forbidden? How about using the government post office? What about TSA screening or having a passport or driver license? What I would mean is no pension, no salary, no government housing (for instance if married to a soldier), no ObamaCare.

            Maybe execution is simpler 🙂

          3. Maybe another way to handle that is only punish support for unconstitutional acts if they have been warned of the unconstitutionality. In my legislature, any legislator could propose any bill, and after 30 days of review, if enough (3/4, 2/3, 1/2 + 1, whatever) legislators approve it, the bill becomes law. If the author changes anything, that restarts the 30 day review period.

            Suppose you throw in that in addition to requiring legislative approval, you allow preliminary hypothetical constitutionality opinions from Supreme Court and Appeals Court justices; if any say they see constitutionality problems, the bill is tainted and the legislators have been warned. Any whose approval is on the final 30-day review tally are now eligible for punishment if a later full-on court case decides the law is unconstitutional. Then execute them, ban them from receiving public funds, whatever.

            Basically give them a chance to recant before their approval matters. If they don’t they were warned, and they deserve whatever they get.

            Maybe even make the punishment relative to the number of bad judicial ratings. If one or two judges say it smells, eject them from office. Up to five, no more funds. Over five, execution.

            1. Actually, I think the SCOTUS should be required to sign off on the constitutionality of all bills before they become law. At least the blatantly unconstitutional bills would get killed up front instead of needing to prove harm and run through the system for 15 years.

              It’d have the added benefit of slowing down the legislative system

              1. At least the blatantly unconstitutional bills would get killed up front instead of needing to prove harm and run through the system for 15 years.

                Wouldn’t that be fixed by a constitutional amendment guaranteeing a speedy trial?

          4. Another idea I have had is that every incumbent exit trials; either when they lose an election, or after every election.

            Choose 12 random voters; you could have a checkbox on ballots for volunteers. They would be a grand jury of sorts, and review every piece of legislation the legislator voted for or authored. At the end of the review, count how many votes there were for any legislation being unconstitutional. If you get too many, the legislator loses funds, office, life, again based on how many votes etc.

            The primary point of this is that tempers will have cooled off for the oldest legislation, and a fresh look at it may show how wrong it was. You are going to get a lot of partisan voters, both for and against, but that also is the point. You want legislators to be extremely wary of voting for unconstitutional measures.

            Maybe author counts for ten times as many points as voting for. Maybe voting against other unconstitutional bills counts in their favor.

            Any system which doesn’t punish at least one or two legislators every session is not doing its job. Maybe you build that in to the system by only and always punishing those two legislators who had the worst record. That would reduce the power of diehard random voters who list every single bill as unconstitutional.

          5. The problem is that most laws/regulations are not voted on but rather issued by unelected bureaucrats.

        2. But that’s the thing. Any systemic safeguards that you put in place can be undone by future power-seekers if the people let them. The constitutional approach of creating pockets of power that would push back against each other is about as good a system as you can design, but even so it was already seriously degraded within a century and almost dead at this point.

          I would also require legislation to pass by 3/4 majority, and if 1/4 of legislatures in any chamber sign a repeal petition, the law is immediately voided.

          So 1/4 of the House or Senate could repeal FOIA, FISA, Posse Comitatus, Protection of Lawful Commerce in Arms, FOPA, etc? It’s a double edged sword.

          1. Government does its evil through laws. Look at Hitler, Stalin, probably Mao too — they all went through the legislative process. They all wanted that fig leaf of seeming legality.

            A government which passes fewer laws is a better government, all things being equal. Every one of the good laws you mention only does its good by undoing evil laws. If those evil laws become unmasked by the repeal of good laws, it just makes those evil laws visible again, ready to be repealed themselves.

  5. “Global warming”. ROFLMAO.

  6. Police aren’t saying yet whether the truck that just plowed into a crowd of people was autonomous, but I’m guessing the answer is “no”.

    1. Autonomuslim, maybe.

    2. Are you talking about the Truck of Peace that plowed through a crowd in Muenster?

      1. It was a self-radicalized truck.

  7. Liz Warren and MSNBC town hall at Massachusetts college gets bumped in favor of school play.

    “Although this is a missed opportunity that was sure to help the prominence of our institution, the relevance of public higher education in Massachusetts and create an amazing experience for students, faculty, and staff alike, the spring theater production will now move forward without interruption,” [the university president] said in a statement. “Look for promotion about the ‘Urinetown’ performances, which debut April 18.”

    1. A musical about draconian regulation, and why you’d be sorry if it went away. Ha!

  8. To placate the state’s health department…

    Uh-huh. Why again is this necessary for lawmakers?

  9. “North Dakota adopted a more permissive type of cottage food law, dubbed a “food freedom act,” last year. That was spectacular news.”

    Passing a law to permit people to do the simplest of things is spectacular news? I guess, at least up until the time comes when it gets repealed. At that point, those who are enthusiastic over the spectacularness of the law might wish they’d never taken the position that such rights are government’s to grant.

    1. in a free country, what is not prohibited is permitted.

      In a not-free country that which is not permitted is prohibited.

      We tread into not-free when rather than repeal a bad law they must create exceptions.

      Make everything illegal and then give out exceptions.

      Suddenly free becomes not-free.

  10. I’m commenting on Hit & Run in order to buy sex.

    Anybody got a problem with that? I’m asking you, FOSTA/SESTA!

    1. Thanks for the reminder. I’m working on it.

  11. Tony, regulators are basically cops.
    They are assholes who always get their way. If they don’t then the cops will always back them up. They might as well be cops.

    You don’t like cops. As much for what they do as for the kind of personality that is attracted to the job.

    Regulators are guys with the same personality who use an indirect threat of violence to get their way instead of a direct one.

    They will use and abuse their power just like anyone else who is attracted to that job.

    Better let the customers regulate. Especially in this Information Age. We don’t need government to shut down a place that makes you sick. Social media will do it for you.

  12. I am interested in the kinds of regulations affecting supermarkets now that affect what we can buy.

  13. A tip for navigating the home cooked industry in New Jersey:

    If the guy offering to sell you baked goods in Newark next to the boarded up building is missing a store front, is missing a table on the sidewalk, and jumps in the he cab that was waiting for him the moment the transaction ends because he doesn’t have a car … you probably don’t want to ingest what he is selling.

  14. I went to an outdoor gourmet food festival once in Arizona. Great food. The fresh squeezed lemonade was so good I had three. Then I saw a non-English speaking presumably illegal Mexican employee refill the water jugs from a stream issuing from the top of a park fountain that was recirculated from a lower basin in which babies in diapers were playing. There’s no point in food safety laws when the people preparing our food are outlaws to whom laws do not apply by definition.

    1. That’s why I always stick to beer. Much safer.

  15. I would love to know the way we can find good food with real ways of cooking. FindBestGrill is what we can consider to have good combination of food.

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