Will Massachusetts Make Life Sweeter for Home-Cook Entrepreneurs?

It's oppressively hard, if not impossible, to sell homemade food in the Bay State. One lawmaker proposes massive regulatory reform.

Massachusetts lawmakers may soon blow up what is currently one of the nation's worst cottage food laws.

H465, sponsored by State Rep. Erika Uyterhoeven (D–Somerville), would eliminate the state's burdensome local permitting and home-inspection requirements, among other dramatic improvements.

Uyterhoeven and other supporters have pitched the bill as a COVID-19 recovery measure, a way to help out-of-work chefs, immigrants, stay-at-home parents, and others get back on their feet, WHDH reports. It's all that and a bag of chips!

As I detail in my book Biting the Hands that Feed Us: How Fewer, Smarter Laws Would Make Our Food System More Sustainable and elsewhere, cottage food laws are laws that allow home cooks to produce and sell certain homemade foods—typically low-risk foods such as many baked goods, spice blends, teas, and jams—from their homes, at farmers markets, online, and at other venues. As I've noted time and again, cases in which homemade foods sold to consumers have sickened people–even in states that allow more high-risk foods such as cheesecake or sauerkraut—are difficult or impossible to find.

Though every state now has a cottage food law, these laws vary dramatically in quality. That's why—as I noted in a September column in which I detailed a host of recent improvements to several cottage food laws around the country—I'm currently working on a study for the Reason Foundation (the nonprofit that publishes Reason) comparing state cottage food laws (along with other, more expansive laws governing the sale of homemade foods) in all fifty states.

In Massachusetts, entrepreneurs who want to produce and sell food from their home kitchens first must navigate a host of procedural challenges. First, their local government must allow cottage food sales. In Massachusetts, many municipalities do not. In remarks earlier this month before the state legislature's Joint Committee on Environment, Natural Resources and Agriculture, Uyterhoeven told fellow lawmakers that the lack of preemption has meant that "hundreds of municipalities" not only don't have any cottage food producers within their borders, they "don't even have a permitting process for cottage foods."

Increasingly, lawmakers around the country have passed cottage food laws that have failed to fulfill their promise—often because they've been undermined by intransigent local health departments. These lawmakers are realizing the error of their ways. With Rep. Uyterhoeven's bill, Massachusetts could join the ranks of New Mexico, Florida, and Illinois as states that have added preemption clauses to their respective cottage food laws just this year.

Even if a city or town in Massachusetts has a permitting process in place, the process inevitably stinks. As it stands today, Massachusetts is one of a dwindling number of states that require local health departments to create and manage their own permitting and inspection schemes.

Take Boston, where the City Council voted just this year to create a permitting process for cottage food producers. The city had previously banned it. While it's great that there's now a process for becoming a cottage food producer in Boston, that process is still deeply onerous. Boston, operating as other cities and towns do under the state's cottage food law, requires a prospective cottage food producer first to complete an application before it will issue a permit. That application must include a list of foods the producer intends to make; a sketch of kitchen, prep, and storage areas that is "drawn to scale;" a sample product label—something even the FDA doesn't require of the world's largest food producers; proof of zoning approval; and several other tedious hoops.

If Boston were to approve the application, the applicant would then be required to have their home kitchen inspected by the city health department. Only if the inspector approved their home kitchen would the producer then be issued a permit that would allow them to begin selling cottage foods.

Contrast that mind-numbing, entrepreneurship-stifling process with that found in some states:

• Step 1: Make some food at home.
• Step 2: Start selling it.

In other words, while Massachusetts requires permitting and kitchen inspection, label pre-approval, kitchen sketches, and other steps before one may launch a cottage food business, many states require nothing of the sort. The idea of inviting a health inspector into one's home kitchen is especially discouraging and burdensome, particularly given that cottage foods rarely (if ever) have caused foodborne illnesses.

Uyterhoeven's bill would eliminate most of these burdensome requirements for cottage foods. For starters, the bill would preempt government units—including health departments—from permitting or inspecting cottage food operations. But the bill would not shift the heavy burden of home-kitchen inspections onto the state. Instead, it would abolish the inspection requirement altogether—consistent with most state cottage food laws today—along with ending the mandatory permitting process. (At least one anonymous, self-described Massachusetts local health department employee is aghast over these potential changes.)

The bill would also expand the types of foods home cooks can produce in the state—in Massachusetts, foods produced currently in home kitchens for sale may only be shelf stable, including baked goods, jams, and jellies—to explicitly include pickles. And it would add a requirement that cottage food producers inform consumers, via a mandatory label statement, that the food they're purchasing was produced in an uninspected home kitchen and may contain allergens.

That latter, added requirement is an important one. While I'm no fan of increased regulations generally, I docked Massachusetts—and a couple other states—in my study's draft state rankings for not requiring such label statements to appear on homemade foods. I believe requiring a clear label statement on cottage foods, such as the one proposed in Massachusetts, provides any consumer with the information they need to be an informed consumer.

If Massachusetts updates its cottage food law by adding a preemption clause, removing kitchen-inspection requirements, allowing some pickled foods, and improving its labeling requirements—as State Rep. Uyterhoeven's bill would appear to do—then Massachusetts's cottage food law would rocket immediately in my rankings from one of the nation's worst to one of its best. That's why I'm excited about the prospect of cottage food reform in Massachusetts.