Like many industries, the cottage food industry is experiencing the effects of COVID-19, as more and more people turn to home-based solutions to earn money or to learn or expand on a passion for cooking and baking. The cottage foods industry refers to individuals who use their home kitchens to make food, and then sell the products either out of their homes, online, or at farmers’ markets or other events. While not legal in every state, these home-based businesses continue to grow as many states push for more ways to deregulate the industry, a trend that began before the pandemic and is now further fueled by it.
In 2021 alone, 55 new bills were introduced across the U.S. seeking to loosen restrictions on cottage food, according to Emily M. Broad Leib, JD, clinical professor of law and faculty director of the Harvard Law School Food Law and Policy Clinic and deputy director of the Harvard Law School Center for Health Law and Policy Innovation in Boston. Among the restrictions these bills hope to ease are those directed at raising the annual sales caps on what cottage food producers can earn, increasing the types of foods that can be produced, and expanding the method of permitted sales (e.g., permit selling products online, by phone, through mail, via third-party delivery services).
Other legislative trends are laws permitting microenterprise kitchens, which means those who sell fully prepared meals from home-based kitchens.
Given the growing interest in, proliferation of, and expanding legislation for home-based products, what are the safety concerns with these products? In part, this question is answered by the level of risk they pose with regard to pathogens, and the subsequent risk of foodborne illness.
Pathogen Risk in Cottage Foods
Leib, along with law students Regina Paparo and Patrick Montgomery, describes cottage food as “value-added food products” made at home and offered for sale. These products include baked goods, jams, granola, popcorn, candy, coffee, tea, and other home-based goods. When a larger variety of foods or home-based businesses that offer fully prepared meals are included, other labels such as “home kitchens” or “microenterprise home kitchens” are sometimes used, they say.
To date, all 50 states allow the sale of cottage food in some form. While states vary in terms of the foods they allow to be produced from home for sale, most limit the products to those considered low risk. “Many cottage foods that can be made without a permit are non-temperature control for safety (non-TCS) foods that are categorically very low risk,” says Leib. For states that allow a broader set of foods, additional permitting, training, and inspection for home cooks is often required.
TCS is the newer term used for perishable foods or food products that require time and temperature to control safety. Both these factors affect the rate at which pathogens grow in foods.
Explaining the difference between low and higher risk foods, Peggy Kirk Hall, JD, director of The Ohio State University Agricultural and Resource Law Program in Marysville, says that processed foods are an example of higher risk foods in terms of safety. Processing, she says, can mean different things, from simply cooking something to make it edible (e.g., rhubarb jam), to drying, chopping, or repacking something (e.g., dried fruits), to—at the far end—heating and sealing to preserve over the long-term (e.g., salsa).
Although jams and jellies are examples of processed foods, Hall says that these are on the lower end of safety risk compared to products such as canned vegetables or salsas that have a higher pH and water activity value. Foods with a higher water activity value pose a higher safety risk, as they can support bacterial, yeast, or mold growth. “In most states, jams and jellies are fine, but in other states, like Ohio, no processed foods, like acidifying foods or those with a higher water activity level, fall under cottage food,” she adds.