Statewide law needed so home food entrepreneurs can get cooking

Salem resident Natasha Quesnell-Theno took action when public health officials advised people to work from home as much as possible during the COVID-19 pandemic. She turned on her oven and started baking sugar cookies for neighbors.

The business, Wicked Cute Confections, quickly took off. Customers ordered hand-decorated treats for baby showers, birthday celebrations, “coming out” and gender affirmation parties, and other events. Quesnell-Theno even received orders from the House of Seven Gables and became a preferred wedding vendor at Hawthorne Hotel.

“After making that first batch, I have been booked solid almost continuously,” Quesnell-Theno said.

What Quesnell-Theno did not know when she started her enterprise is that Salem is one of the few places in the United States that criminalizes “cottage food,” meaning food prepared in a home kitchen for sale. Her business would be legal almost anywhere else, including many parts of Massachusetts.

Rhode Island imposes a statewide ban on cottage food for nonfarmers, which excludes more than 99% of the population. But the other 49 states and Washington, D.C., let anyone earn income in a home kitchen.

Massachusetts has allowed cottage food sales since 2000, when the commonwealth adopted the Retail Food Code.

Unfortunately, the law came with a catch. Participation is voluntary for local jurisdictions. If cities and towns do nothing, then cottage food is illegal by default.

Even if municipalities opt in, state law allows them to set their own fees and restrictions. The result is a patchwork of regulations that vary widely across Massachusetts. Just figuring out the rules from one place to the next can be difficult because state agencies do not keep track. Instead of making one phone call or visiting one website, a person trying to map the regulatory terrain would have to contact 351 jurisdictions separately.

A partial survey shows that Boston has allowed cottage food sales since spring 2021, and Cambridge joined the movement in January 2022. Yet Worcester, Franklin, Southwick and other communities do not allow the sale of a single homemade cookie. Neither does Salem.

Quesnell-Theno learned the bad news when she called City Hall looking for guidance. Salem workers initially had no idea what she was talking about. Neither the Department of Health nor Department of Commerce knew where she could go to get a permit. After digging into the issue, the city provided an unhelpful answer: nowhere.

Quesnell-Theno could either shut down her business or lease space at a shared-use commissary. Besides the inconvenience, Quesnell-Theno says the extra expense would hinder her from growing her home-based operation into a traditional brick-and-mortar bakery.

“Paying rent to use a second kitchen outside the home can turn a profitable business into a money loser,” she says. “You end up in a depressing cycle of work that keeps you from accruing enough capital to compete.”

The restrictions stifle economic growth and limit consumer choice. They also widen opportunity gaps. Research from our public interest law firm, the Institute for Justice, shows that cottage food producers tend to be women — especially from low-income households in rural communities. Stay-at-home moms, disabled workers and caretakers of aging parents disproportionately suffer when regulators block cottage food operations.

To justify the restrictions, regulators sometimes raise hypothetical concerns about foodborne illness. But real-world experience shows that cottage food is safe. After the Institute for Justice filed a lawsuit to end a statewide cottage food prohibition in New Jersey, regulators looked at the evidence and agreed.

New Jersey reforms, adopted in October 2021, point to “scientific evidence that supports a finding that shelf-stable food prepared in home kitchens is safe for consumers.”

Rather than allow arbitrary and excessive restrictions to continue in Massachusetts, state lawmakers have a chance to pass their own reforms. House Bill 862, currently assigned to the Joint Committee on Environment, Natural Resources and Agriculture, would create one set of rules for the entire state.

Salem and other municipalities would become safe spaces for enterprising individuals like Quesnell-Theno. Instead of wearing a scarlet letter “C” for criminal on their aprons, they could bake in peace without fear of the cookie police.

Jessica Poitras is an attorney and Daryl James is a writer at the Institute for Justice in Arlington, Va.