State law needed for cottage food entrepreneurs to start 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 the 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 the preferred wedding caterer at the Hawthorne Hotel.

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

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

Rhode Island enforces a statewide ban on cottage foods for non-farmers, excluding 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 the sale of cottage food 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 home cooking is illegal by default.

Even if municipalities choose to participate, state law allows them to set their own rates and restrictions. The result is a patchwork of regulations that vary widely across Massachusetts. Simply deciphering the rules from one place to another can be difficult because state agencies don’t keep track. Instead of making a phone call or visiting a website, a person trying to map the regulatory landscape would have to contact 351 separate jurisdictions.

A partial survey shows that Boston has allowed the sale of homemade food since spring 2021 and Cambridge joined the movement in January 2022. However, 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 for guidance. The Salem workers initially had no idea what he was talking about. Neither the Department of Health nor the Department of Commerce knew where he could go to get a permit. After delving into the problem, the city provided a useless answer: nowhere.

Quesnell-Theno could go out of business or rent space in a shared-use commissary. In addition to the inconvenience, Quesnell-Theno says the added expense would prevent him from growing his home-based operation 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 end up in a depressing work cycle that prevents you from accumulating enough capital to compete.”

The restrictions stifle economic growth and limit consumer choices. 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. Homemakers, disabled workers, and caregivers of elderly parents suffer disproportionately when regulators block cottage food operations.

To justify restrictions, regulators sometimes raise hypothetical concerns about foodborne illness. But real-world experience shows that home cooking is safe. After the Institute for Justice sued to end the state’s ban on cottage foods in New Jersey, regulators looked at the evidence and agreed.

New Jersey’s reforms, adopted in October 2021, point to “scientific evidence supporting the finding that shelf-stable foods prepared in home kitchens are safe for consumers.”

Instead of allowing arbitrary and excessive restrictions to continue in Massachusetts, state legislators have an opportunity to pass their own reforms. House Bill 862, currently assigned to the Joint Committee on the Environment, Natural Resources, and Agriculture, would create a statewide set of rules.

Salem and other municipalities would become safe spaces for entrepreneurs like Quesnell-Theno. Instead of wearing a scarlet letter “C” for felon 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, Virginia.

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