Government Too Often Gets in the Way of Home Cooking Sales, New Study Finds

COMMENTARY Government Regulation

Government Too Often Gets in the Way of Home Cooking Sales, New Study Finds

Dec 28, 2017 3 min read

Former Legal Fellow

John-Michael Seibler directe The Heritage Foundation’s project to counter abuse of the criminal law, particularly at the federal level.
If you’re among the growing number of people who sell homemade food, government safety regulations might be getting in the way of your profits. iStock

When cooking your favorite holiday dishes, remember this friendly advicefrom the FDA: “The most important ingredient in preparing food for the holidays isn’t love (sorry granola people), salt (sorry New York Times), or cannellini beans (sorry Oprah). It’s food safety.

But if you’re among the growing number of people who sell homemade food, government safety regulations might be getting in the way of your profits.

A new report by the Institute for Justice surveys state regulations on the cottage food industry and finds that some needlessly hinder the success of entrepreneurial home chefs.

Consider the case of Kriss Marion, a Wisconsin chef. As co-founder of a local farmer’s market and a bed-and-breakfast owner, Marion regularly served homemade baked goods to patrons. But state law forbade her from selling them.

So, she would feed her leftovers to animals or give them away for free. That is, until she teamed up with other home bakers and the Institute for Justice to successfully challenge the law in court.

The report shows that while many home chefs like Kriss sell their goods as a source of supplemental income or as a hobby, it can also help people achieve financial independence. That income is typically invested in the cooking business, a nest egg, or used to pay the bills.

Only about 20 percent of the 775 home chefs that the Institute for Justice interviewed reported selling their food sales as their primary occupation. Yet the survey results suggest that this business is particularly attractive to women in rural areas who report below-average income.

Especially in times when the economy slackens and rural communities struggle to attract jobs, selling safe, fresh, and tasty home food items can be exactly the opportunity that a family and their community will look for. It provides self-employment with low overhead, relatively low investment, and a great family life.

Others may see selling homemade food as one of their few available economic opportunities. After an injury left Jane Astramecki unable to work outside her home, she built “Jane Dough Bakery” to sell baked goods from her own kitchen.

By teaming up with the Institute for Justice, Astramecki challenged a state restriction on home food sales and was soon able to help support her family through her own business.

These businesses also empower aspiring chefs to test their products before going all in on a brick and mortar venue.

But as Marion and Astramecki’s stories illustrate, some states put excessive red tape in the way of a would-be Julia Child or Wolfgang Puck.

States can and do impose a broad array of restrictions on who can sell food, where, when, in what quantity, and what types. Those rules most often seek to protect the public from harmful, unsafe foods.

That is undoubtedly an important state interest.

But the Institute of Justice’s report confirms numerous studies on occupational licensing laws, including several by Heritage Foundation senior legal scholar Paul J. Larkin, Jr., that show how “today’s licensing regimes prohibit individuals, sometimes on pain of criminal liability, from engaging in conduct that poses no risk of harm to any person or to the community.”

“Such a regime,” Larkin notes, “causes injury rather than protecting against it.”

And according to the Institute of Justice’s research, there “appears to be no rational link between many restrictions on cottage food sales and any legitimate government concern for public health and safety.”

Meanwhile, home cooking businesses can bring prosperity and well-being to a family and value to their neighbors-turned-customers.

As the report suggests, “[s]tates can, and should, take steps to encourage entrepreneurship by easing restrictions on cottage food producers.”

States that have relaxed cottage food laws or expanded protections for those who are already in the industry deserve kudos. As the number and size of safe home cooking businesses increase in states like Texas, California, and Minnesota, other states should follow their lead and enhance economic liberties for home cooks, too.

And as the industry grows, states with greater regulatory burdens should take the Institute of Justice’s hint: “leave the [lawsuit], take the cannoli.”

This piece originally appeared in The Daily Signal