Statewide law needed for home food entrepreneurs to cook

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 fired up her oven and started baking sugar cookies for the neighbors.

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

“After doing that first batch, I was booked solid almost continuously,” Quesnell-Theno said.

What Quesnell-Theno didn’t know when she started her business is that Salem is one of the few places in the United States that criminalizes “cottage food,” meaning prepared food. in a family kitchen for sale. His business would be legal almost everywhere else, including many parts of Massachusetts.

Rhode Island imposes a statewide ban on artisanal food for non-farmers, which excludes more than 99% of the population. But the other 49 states and Washington, DC allow anyone to earn an income in a home kitchen.

Massachusetts has allowed cottage food sales since 2000, when the Commonwealth passed 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 choose to participate, state law allows them to set their own fees and restrictions. The result is a patchwork of regulations that vary widely across Massachusetts. Just understanding the rules from place to place can be difficult because state agencies don’t follow. Instead of making a phone call or visiting a website, someone trying to map the regulatory terrain would have to contact 351 jurisdictions separately.

A partial investigation 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 cottage food sales. a single homemade cookie. Neither does Salem.

Quesnell-Theno learned the bad news when she called City Hall for advice. The Salem workers initially had no idea what she was talking about. Neither the Ministry of Health nor the Ministry of Commerce knew where she could go to obtain a permit. After digging into the question, the city provided a useless answer: nowhere.

Quesnell-Theno could either close his business or rent space in a shared-use commissary. Aside from the inconveniences, Quesnell-Theno says the added expense would prevent her from turning her home-based business into a traditional bakery.

“Paying rent to use a second kitchen outside the home can turn a profitable business into a waste of money,” she says. “You find yourself in a depressing work cycle that prevents you from accumulating enough capital to be competitive.”

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 artisanal food producers are typically women, particularly from low-income households in rural communities. Stay-at-home moms, disabled workers and people caring for aging parents suffer disproportionately when regulators shut down cabin food operations.

To justify the restrictions, regulators sometimes raise hypothetical concerns about foodborne illnesses. But real-world experience shows that cabin food is safe. After the Institute for Justice filed a lawsuit to end New Jersey’s statewide cabin food ban, regulators reviewed the evidence and agreed.

The New Jersey reforms, passed in October 2021, point to “scientific evidence that supports the conclusion that shelf-stable foods prepared in home kitchens are safe for consumers.”

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

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 cook in peace without fear of the cookie police.


Jessica Poitras is a lawyer and Daryl James is a writer at the Institute for Justice in Arlington, Virginia.

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