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When Does a Cottage Food Law Become a House Food Law?

Opinion

Last week on Food Safety News, Dan Flynn wrote an article discussing Virginia’s plans to loosen its cottage food laws. Cottage food laws are basically laws that allow small-time producers to use appliances in their homes to bake, cook, can, pickle, dry or candy certain low-risk foods for sale. By contrast, state laws require all other food producers to process foods in licensed kitchens.

According to Flynn’s article, some delegates in Virginia want to allow a broader range of producers to sell food under its cottage food laws. To some, this means more opportunities for small producers to generate income. To others, this may mean increasing the public’s risk of foodborne illness.

Both sides have valid points. The difference between producers who operate under cottage food laws versus standard food laws is the difference between building a cottage and building a house. Building a cottage is simpler, requires fewer materials, and is more affordable. Similarly, cottage food laws are for simple, low-risk and low-cost foods.

But when does a cottage become a house? As building plans become bigger and more complex, the structure eventually crosses the line from a cottage to a house. Similarly, as food operations grow, eventually they no longer qualify for cottage food laws.

Thus, the hard question is: Where should the law draw the line between simple, small operations and larger, more regulated operations?

What Do Cottage Food Laws Do?

Cottage food laws are designed to give the small guys a break. They allow small-time producers to try their hand at a food business without having to comply with onerous, expensive licensures and codes.

Because foods produced under these laws are exempt from certain licensures and codes, they generally only apply to low-risk foods. Low-risk foods are foods like breads, which tend not to pose risks of foodborne illness. High-risk foods are foods like meat, dairy, and eggs, which have a high risk of transporting foodborne illnesses.

A good indicator of whether a food can be sold under most cottage food laws is refrigeration. Generally, if a food requires refrigeration, such as a meringue pie, then it is high-risk and cannot be sold. But a baked good like a scone is probably OK. Note that while a scone may contain high-risk ingredients like dairy or eggs, it is still low-risk because it has been cooked at a high temperature and no longer requires refrigeration. However, scones that contain a perishable ingredient such as sausage are still high-risk.

Canned foods are another example of how cottage food laws work. Certain bacterial spores that live harmlessly in soil and water can, under conditions created by the canning process, produce a deadly toxin. This toxin causes botulism, a deadly foodborne illness. As long as the producer takes precautions such as cleaning utensils and canning at high temperatures, the risk of botulism is low. Additionally, the natural acid in some foods neutralizes botulism. Thus, canning acidic foods such as fruit, e.g. jam, under cottage food laws is usually allowed. But canning low-acidic foods such as vegetables and meat is generally not allowed.

For the most part, people who benefit from cottage food laws are producers who sell at farmers markets, farm stands, or other direct-to-consumer situations. Cottage food laws vary by state, and maybe even by county, but they usually limit where and to whom producers can sell their products.

Do Cottage Food Laws Make Sense for Food Safety? 

Cottage food laws help small-time producers make modest profits. They can help new or young producers get their food businesses off the ground, and they can help small farmers diversify and generate income.

Economics aside, some food safety advocates question whether exempting producers from standard processing requirements like licensed kitchens increases the risks of foodborne illness outbreaks. But, for the most part, cottage food laws pose few food safety concerns. Small producers have a fair amount of oversight and control over how food is made, so, as long as they make low-risk foods, it makes sense to allow producers to sell food without meeting onerous requirements.

But the bigger, more complex an operation becomes, the less cottage food laws make sense. For starters, when a producer has multiple employees, he or she begins to have less oversight. This increases the chances of mistakes — such as unwashed hands, unsanitized counters, spoiled ingredients, etc. Of course, hiring employees does not mean that safe handling practices will end, but it does increase the risks. And, if a producer can hire more than one employee, then that producer may be able to afford the fees and costs of complying with standard food regulations anyway.

Additionally, cottage food laws make less sense when producers are selling mostly to strangers. If a consumer buys food from a neighbor, friend, or even an acquaintance, then that consumer presumably knows enough about the operation to make an informed decision. But buying food from a vendor at a large farmers market or stand is a bit different. Consumers can ask questions and make deductions about whether the food has been safely prepared, but they are nonetheless taking a risk. In the case of simple, low-risk foods such as baked goods, it makes sense to allow these stranger-to-stranger transactions. But when foods start requiring more safe handling precautions — like low acidic canning — allowing stranger-to-stranger transactions probably makes less sense.

Some argue that, regardless of the level of risks, it is the consumer’s right to decide whether to take the risk. However, this argument is complicated by the fact that parents make most food decisions for their children, and children are the most susceptible to serious consequences, including death, from foodborne illnesses. In theory, the law tries to find a balance between parental rights and protecting the welfare of children. So, with this consideration in mind, it probably makes sense to limit cottage food laws to the sale of low-risk foods.  

Should States Expand Cottage Food Laws?

Many groups have called for an expansion of cottage food laws. These changes make sense if they encompass more small-time, simple producers. But no bright line exists between when an operation should fit under cottage food laws and when an operation is large enough to comply with regular state food laws. Thus, the difficult decisions will be how to deal with the in-between operations — those that are too large for cottage food laws but still too small to meet the fees and burdens of standard food laws.

States want to ensure that they do not extend cottage food laws to homeowners, e.g. producers that are large enough to meet standard food regulations. So to preserve these special laws for cottage dwellers while still accommodating the in-between operations, states might consider alternative solutions such as fee waivers, training programs, or discounted kitchen space for larger producers or higher-risk foods.

Some might argue that adjusting cottage food laws for these in-between operations is appropriate. However, it might make more sense to help bring larger, higher-risk producers into full compliance rather than tamper with laws designed for very small, low-risk producers. In other words, instead of relaxing cottage food laws to encompass in-between operations, states could instead provide other assistance to help them navigate the regulatory burdens of full food safety law.

Whatever the solution may be, at some point states probably need to draw the line between cottage dwellers and homeowners while still accommodating those in between.

© Food Safety News
  • Raymond James

    I was against Missouri’s Jam and Jelly law . I however was wrong despite my worries there have been no problems that I am aware of . The state senator Harold Caskey is from my area as was the lady who wanted the ability to make jams and jellies in her home and sell them at a farmers market.

    Generally the law has worked well, allowing someone to directly sell low risk foods to consumers. Only the person who made the product or a family member who lives in the same home can sell the non-hazardous food.

    Missouri allows this by the wording of what is and what is not a food establishment in the definition of the Food Code.

  • mommydeome

    I am in suffolk, VA. I want to bake and sell cupcakes, brownies, cakes and mini pies out of home. Would I need a business license? Inspection? I just want to know restrictions and what I need to do..