The “food freedom” movement is intended to expand the rights of individual consumers to produce and consume their own homemade foods with no regulation. The idea is to enable consumers to achieve better overall health by controlling the quality and safety of the food they eat.
In turn, over the last several years, this movement has inspired new laws in all 50 states and Washington, D.C., that embrace this concept while also permitting the sale of homemade foods to other consumers in certain circumstances. These state laws vary dramatically in the scope of permitted products, limitations on sales, and required oversight by state or local public health agencies. Often, states have implemented either a “cottage food law” or a “food freedom law.” Cottage food laws are typically limited to the sale of baked goods and other shelf-stable, not potentially hazardous foods, while food freedom laws generally significantly expand the ability of home producers to process and sell food products.
Model Food Freedom Laws
Model food freedom laws have been issued by the American Legislative Exchange Council and the Institute for Justice. These model laws have served as the framework for advocates who work to create or expand food freedom laws at the state level.
These model laws typically allow for the sale of any homemade foods, regardless of the product type or total amount of sales made. Sales can be made directly to the consumer or through an agent of the home producer (such as a retailer). Products that contain meat or poultry or that would be classified as dairy products, however, can only be sold by the home producer directly to consumers and must be personally delivered by the home producer. The actual transaction (sales) in all cases can be in person or remote, through internet or phone sales. Additionally, homemade foods must be labeled with a statement indicating that the food was produced in a residential kitchen that is exempt from licensing and inspection.
Overview of Implemented State Cottage Food and Food Freedom Laws
Although model food freedom laws have been made available for the states generally, many states have opted to implement their own laws that vary from the model acts in many ways.
For example, many states have implemented maximum annual sales levels for homemade foods. Maryland recently raised the annual revenue cap for cottage food producers to $50,000, while Connecticut has an annual gross sales limit of $25,000 for cottage food products. In other states, such as Colorado, restrictions are enforced as an annual limit per “product,” which has an annual net revenue limit of $10,000.
Other laws implemented by the states limit the types of foods that can be sold. For example, some states restrict the sale of homemade foods to non-perishable items, while others exclude the sale of acidified foods. Florida and Georgia, for example, permit non-potentially hazardous foods, including bakery items (without temperature-controlled ingredients), jams and jellies, and candy products, while excluding canned acidified foods and other products that are potentially hazardous. In addition to the products permitted by Florida and Georgia, Kansas also permits certain cut produce items, eggs and poultry from small producers, juice, and fish and seafood products. Maine permits shelf-stable foods, including acidified foods, bakery items, and candies. However, Maine’s food sovereignty law allows local governments within the state (such as cities or counties) to expand the types of food that can be sold beyond those items permitted by the state cottage food law.
In some states, in addition to limiting the types of homemade products that can be sold, the states limit the specific locations where the homemade products can be sold. For example, Washington, D.C., limits sales of cottage foods to direct-to-consumer sales that occur at farmers markets, public events, or online sales within the District. Idaho, on the other hand, permits any direct-to-consumer sales, regardless of where and how the sale occurs. As noted, some states permit, in addition to direct-to-consumer sales, sales to retailers. Maryland, for example, allows cottage food producers to sell their products to a retail food store. When Maryland home producers sell to a retail store, basic information about the food and producer must be filed with the overseeing department of health, and the department must determine that requirements for retail sale are fulfilled; however, these requirements are much less stringent than those requirements imposed on food manufacturers.