Health Departments Continue to Sabotage Home Cooks Across the Country
New "cottage food" reforms haven't yet increased freedom.
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 SaukValley.com, 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," SaukValley.com 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.
