Expanding California's Homemade Food Sales Law

There's been a lot of discussion around California about expanding the scope of foods allowed to be sold from a home kitchen. It's really exciting! There are also many complicated details to work out. We'll be keeping this page updated as the situation develops. Check here for blogs, policy proposals, and announcements about upcoming events on the topic of changing laws around selling homemade food in California.


Current California Law: For information about the current law, the California Homemade Food Act, (aka "cottage food" law) and legal information on how to start a home-based food business now, click here.

Blogs: Sustainable Economies Law Center's blogs about expanding the law around homemade food in California:

Coming up: Join us for a community town hall on October 25th in Oakland! Details here.



A Proposal By the Sustainable Economies Law Center

Contact: Christina Oatfield, Policy Director, christina@theselc.org


Please write to Christina if you have concise feedback to share via email or if you’d like to invite us to a more in-depth conversation with your organization or community group.

Summary coming soon! Check back at this site in October for a shorter summary proposal.




In 2012 the Sustainable Economies Law Center (SELC), along with numerous active partners successfully advocated for the passage of the California Homemade Food Act (AB 1616, Gatto), also commonly known as California’s “cottage food law.” Thousands of small food businesses were formed under the law during just its first year of implementation. However, it has become clear that countless consumers and food producers alike would prefer for the law to allow sales of homemade foods that are currently not allowed under the Homemade Food Act. The Homemade Food Act only allows certain “non-potentially hazardous” foods such as breads, pies, fruit jams, and numerous dried foods to be made in a home kitchen and offered for sale. Selling hot meals, green salads, frozen foods, and many other foods prepared in a home kitchen are not allowed under the law. These foods must be made in an inspected commercial kitchen. The California Retail Food Code (found within the Health and Safety Code) does not allow a home kitchen to be used as a commercial kitchen except under the parameters of the Homemade Food Act and very narrow occasional exceptions for bake sales organized by charitable organizations.


It is a crime to violate these laws - fines and jail time can be consequences for violations - yet violations of these laws occur frequently. Recently, numerous technology start-ups have developed web-based platforms that advertise home cooked meals for sale. Some offer consumers the chance to dine at the cook’s home, while others invite consumers to pick up a take-out meal from the cook’s home. The Sustainable Economies Law Center has received about a dozen inquiries from entrepreneurs seeking legal assistance to develop such web platforms.


Some have called these platforms “the Airbnb of food” or “the Uber for food” such as in this recent article in The Atlantic. Many of these start-ups have received large investments from private investors who likely hope to receive large profits from the enterprise.


Earlier this year home cooks using one such web platform - at Josephine.com - received cease and desist letters from local health regulators as did Josephine the enterprise. Many stakeholders have identified the need to rethink the law around homemade food in California, including representatives of the California Conference of Directors of Environmental Health (the association of environmental health departments in California).


The Sustainable Economies Law Center is looking forward to continuing discourse about liberalizing the law around homemade food sales in California - the time has certainly come. We support the growth of small-scale enterprises in the food system as a means for providing localized economic empowerment and increasing the availability of locally produced, fresh foods. Yet, many examples of technology-based approaches to scaling up this kind of economic activity do not achieve these goals. The service models of online platforms such as Airbnb, Uber, and Lyft have raised serious questions about exploitation of service providers, unfair competition with established businesses, evasion of safety, tax, and employment laws, and adequate safety mechanisms to protect users and the community. A 2015 article in the East Bay Express offers an in-depth discussion of these questions arising out of the so-called “sharing economy.”


The rapidly rising popularity of these internet tools - and surrounding hype - sometimes leads lawmakers to change laws to accommodate these businesses without carefully considering their impact on the public interest or the consequences described above.


In response, the Sustainable Economies Law Center would like to propose a policy solution that will allow these home-based businesses and web platforms to operate in ways that ensure consumer protection and local, economic, community-based opportunities while mitigating some of the huge income disparities we’ve seen emerge in other parts of the internet technology economy and in our food systems. We propose a regulatory scheme that will not only promote food safety and economic opportunity for home cooks, but also ensure that tech platforms do not wield excessive control over our rapidly changing food system. While this proposal reflects our most current thinking, we continue to seek feedback on this proposal from stakeholders throughout the food system and across the state. We welcome your feedback as stakeholders continue to deliberate on how to best regulate the homemade food economy to best meet the needs of all of those impacted by this proposal including eaters, cooks, existing businesses, and regulatory agencies.


Certified Farmers’ Markets in California: A Model for Building Transparent and Community-Serving Food Systems


The policy proposal below was inspired in part by the flourishing of farmers’ markets in recent decades. The USDA tracks farmers’ markets, nationally, and indicates that there has been an increase in the number of farmers’ markets in operation over the last two decades, from 2,410 in 1996 to 8,476 in 2015. As of this writing, the USDA’s National Farmers’ Market Directory lists 765 farmers’ markets in California.

In California, farmers’ markets are regulated to ensure food safety, to ensure a certain level of transparency, and to ensure direct, farmer-to-consumer transactions. Among numerous rules in California, a "certified farmers' market may only be operated by one or more certified producers (e.g., farmers who sell at the market), by a nonprofit organization, or by a local government agency." (See California Code of Regulations section 1392.2 (a)) In other words, the central organization or enterprise that manages a certified farmers’ market must be a government agency, a nonprofit, a farmer, or a group of farmers. No other entities are allowed to operate a certified farmers’ market in California.

Numerous other rules exist to ensure that the agricultural products sold at certified farmers’ markets were produced by the seller and did not come from a produce distributor. In 2013 the state legislature passed Assembly Bill 1871 to tighten some of these rules and increase fees to fund more vigilant enforcement of these rules.


This policy proposal includes a regulatory scheme for sales of homemade foods inspired in part by the community-driven nature of farmers’ markets in California. In summary, the proposal below calls for state legislation that greatly expands the scope of homemade foods that can be sold in California, while also restricting what kinds of third parties may engage in the advertising and transactions of homemade foods.

Policy Proposal For Increasing the Scope of Legal Sales of Homemade Food in California


Without altering the regulatory framework already established by the California Homemade Food Act for “cottage food” enterprises, the state Health and Safety Code could additionally allow homemade food to be offered for sale, and could require two types of permits for foods that do not fall within the scope of the existing “cottage food law” - one for home cooks and one for third-party sellers of meals or other foods prepared by home cooks (i.e., the web platforms):

  1. Create a new type of environmental health permit for home cooks that would ensure any cook has undergone robust safe food handling training and that their home kitchen is maintained in a sanitary condition.

    1. Food Safety Training: Each home food enterprise owner-operator would be required to complete the Food Safety Manager course before selling any food, and if the home cook has any family or household members helping out in the kitchen, helpers would need to obtain the simpler Food Handlers’ Card. As in regular food facilities in California, the person with the Food Safety Manager training would be required to train and supervise other workers in the home kitchen and to ensure the food safety practices are implemented.

      1. The Food Safety Manager training is offered by various private enterprises and by local environmental health departments and fees vary by provider, but are typically no more than $200. The Food Handler Card can be obtained by taking a shorter online course that costs $15 or less. The Food Safety Manager training is much more in-depth.

        1. Note: Under the existing cottage food law, cottage food operators and any of their associates who handle food just need the more simple Food Handler’s Card. In light of the fact that home cooks under this proposal could prepare foods that pose greater food safety risks, this proposal requires a higher level of food safety training than the current homemade food law.

    2. Sanitation Requirements: The sanitation requirements of the current “cottage food law” would apply to home cooks under this new law. These requirements include basic sanitation practices such as hand washing, utensil washing, and keeping food in covered containers during storage, among many other sanitary practices. The law does not require special commercial kitchen equipment to be used and it does not require multiple sinks for specific purposes. Regular home kitchen equipment and utensils would suffice, as they do for existing cottage food operations.

    3. Kitchen Inspections: Prior to selling home cooked meals, the local environmental health department may choose to require that the cook submit to a home kitchen inspection to ensure compliance with the sanitation requirements, or the local department could just require proof of education credentials and basic registration so they know the business is operating at that particular location, should they receive any complaints. This inspection procedure would be very similar to the process that already exists for home kitchens.

    4. Allowed Foods: Unlike the existing “cottage food law,” which only allows certain enumerated foods, this new class of home food preparation would allow any foods to be prepared, with just a few exceptions. Certain especially risky foods and processing practices, such as whole animal butchering and canning of acidified foods or low acid foods, would be prohibited. The specific language of this provision may state that any foods requiring a HACCP Plan per California Health and Safety Code Section 114419 would not be allowed.

    5. Selling through web platforms: If a home cook sells meals through a third-party web platform, it must be one that is permitted and described in the following section (2). A home cook could set up their own website with payment processing for selling meals in their own home, but not anyone else’s home. Any website or enterprise that advertises or sells meals made in multiple homes must qualify and be permitted per the following section on web platforms.

  2. Create a new type of environmental health permit for each web platform or other third party enterprise selling meals or tickets to attend meals. Note: these restrictions and requirements would apply to web platforms designed specifically for the promotion, payment processing, or other facilitation of sales of homemade foods. This section would not apply to home cooks using any communication device to spread the word about their home food enterprise. For example, if a home cook writes a post on her facebook wall announcing that she will be offering food for sale at a certain time, facebook would not be responsible for following the proposed policy below because the website facebook is not specifically designed to facilitate sales of homemade foods. However, if a home cook uses a website operated specifically for facilitating transactions involving homemade foods, then the following proposed law would apply to the web platform enterprise.

    1. Restrict the ownership and governance of the web platforms. Each web platform would be organized as one of the following:

      1. Worker cooperative (as defined in California Corporations Code Section 12253.5 and as governed by the Cooperative Corporation law)

        1. If a worker cooperative corporation, the corporation must be controlled primarily by the cooks, not investors (if any). Any investors in a cooperative corporation must be debt investors, or community investors as defined by Corporations Code Section 12238(f) and subject to the voting power provisions in Section 12253(c). All owners of any proprietary interest in the cooperative must be worker-members, community investors, or another type of member whose voting rights are restricted in the same ways as community investors.

        2. Worker cooperatives may have a consumer class of members as long as the worker class maintains most decision-making power. Cooperatives can choose to provide member benefits to any class of members, such as a discount on meals or invitations to member events. There could even be a profit sharing scheme among different classes of memberships. These are not necessary perks for all types of members, however.

        3. All members owning a proprietary interest have rights to notice of meetings and minimal voting rights described in the Corporations Code.

        4. Any home cook who sells food through a web platform regulated under this proposed law would have a reasonable opportunity to become an owning member of the web platform cooperative. The cooperative may set reasonable membership requirements, such as a requirement that a cook sell a certain number of meals on the platform with reasonably positive results prior to becoming a member, but there may not be unreasonably high costs to becoming a member or unreasonably long candidacy periods for membership.The cooperative may also require that cooks sell a certain volume (or a reasonable amount) and a certain quality of foods to maintain their membership.


      1. Nonprofit mutual benefit corporation (as described in California Corporations Code Section 7110 et seq.)

        1. If a nonprofit mutual benefit corporation, any investors must be debt investors or investors with voting powers that are substantially the same as community investors in a worker cooperative corporation.

        2. If a nonprofit mutual benefit corporation, a majority of members must be cooks who sell food through the web platform. However, if according to the organization’s articles, bylaws, or other governance terms, any decisions require greater than a simple majority of members, then that greater proportion shall be the required minimum proportion of members that are cooks.

      2. Nonprofit public benefit corporation (as described in California Corporations Code Section 5110 et seq)

        1. Nonprofit public benefit corporations may not have shareholders and may not exist to provide profits for any individuals or entities. Therefore, many homemade meal sales platforms may not find it feasible to operate as a nonprofit public benefit corporation unless their food preparation activities are part of a charitable program, such as nutrition education, job training, or meal preparation for the very needy.

      3. A government agency, or a corporation controlled wholly by a government agency or nonprofit public benefit corporation.


b. Require web platforms to provide liability insurance to cover incidents of foodborne illness. The insurance policy would need to cover any cook who uses the platform to sell meals. Home cooks selling food without a web platform would not need to carry their own liability insurance but many attorneys would of course strongly recommend any small food enterprise carry liability insurance, or at least seriously consider it.

Why prohibit web platforms from operating as regular for-profit enterprises?


As the homemade meals sector evolves, there are many risks of harm to workers (the cooks and delivery people), consumers, and our communities. It is critical to adopt business models that mitigate the potential for harm. Third party intermediaries tend to hold a large amount of power over both the workers and consumers, particularly when those intermediaries control the lion’s share of the market for a particular good or service. To protect the interests of local communities, workers, and consumers, it is important to ensure that such power is held locally and that incentives to exploit workers or consumers are removed from the business model.


For example, typical for-profit intermediaries have both an incentive and the leverage to raise fees and commissions, taking from both consumers and workers, who often have very little power to negotiate better terms for themselves. Workers can be terminated without recourse, particularly in the absence of an employment relationship, which is often the case where intermediaries are concerned.


By contrast, in a nonprofit or cooperative, where there is no individual capable of profiting from net earnings, there is little or no incentive to squeeze more value from workers and consumers. The intermediary acts primarily as a pass-through, meaning that prices are determined solely by the needs of workers and consumers, not by the wants of shareholders.


For-profit companies can also be bought and sold, and successful companies often end up being traded on Wall Street, putting ultimate control of the company in the hands of absent and unaccountable shareholders. Profitability is their primary concern and mandate, while the quality of livelihoods, food, health, and impact on the community can, and often are, deprioritized in an effort to continually grow profits. A share of the value generated by local workers and consumers will, inevitably, leave the community and go to shareholders.


Nonprofits or cooperatives, by contrast, are often democratically controlled by workers, consumers, and/or communities. The quality of livelihoods, food, and impact on the community are of immediate concern, because the entity operates either for the benefit of the public or for the benefit of its members. Any value generated stays in the community, maximizing and spreading economic benefits locally.


For-profit intermediaries that merely share equity with their users do not solve the underlying problems of the for-profit business structure. The problem with simply sharing some of the equity is that someone is still profiting off the labor of others, and the business can still be sold to the highest bidder. So long as people can earn stock dividends, it maintains incentives to keep worker earnings low and to generally squeeze as much as possible out of workers. It's only a slight consolation for a company to say it is giving some workers some of the profit in the form of dividends. Cooperatives change the equation entirely. Dividends go to each worker on the basis of how much each worker earned for the cooperative during a fiscal year. In a worker cooperative, there's little to no reason to extract more earnings from workers, because much of it will go back to those same workers in the end.

Open Questions


City Zoning Laws: City and county zoning laws regarding home occupations and nuisance would still apply. However, the 2012 Homemade Food Act prohibits cities and counties from prohibiting a resident from having a cottage food operation in their home, therefore, this new category of home food enterprise could come with a similar provision in the Government Code as the Homemade Food Act to prevent home cooks from being barred from selling their food due to local zoning restrictions. This raises some questions around what types of laws the state can impose on local governments, especially charter cities. This may fall within some uncharted legal territory. Some city officials in California have attempted to deny residents the right to have a cottage food operation in their home, citing prohibitive “home occupation” restrictions in their local zoning ordinances, and claiming that their status as a charter city exempts them from the state law which attempts to preempt local “home occupation” and similar restrictions on home-based food businesses.


Deliveries: Whether deliveries will be allowed, and if so, under what terms, has emerged as a question in preliminary conversations with health regulators. Some have proposed that deliveries be prohibited altogether, in other words, the new homemade food law would require customers to dine in the cook’s home or to come get “takeout” food from the cook’s home. This arguably would increase transparency by requiring the customer to actually enter the cook’s home and have a personal interaction with someone involved in the enterprise - typically the cook personally. News reports of home cooks using the web platform Josephine, which relies on customers picking food up at the cook’s home as a unique component of the business model, have praised this business model as a factor in building community by prompting social interactions among neighbors. If deliveries are allowed, the numerous web applications that  offer delivery services may be utilized to organize deliveries by third party contractors, thus reducing the personal interaction between cooks and eaters. Additionally, health regulators are concerned about temperature, as this is a key concern for food safety. Factoring in transportation time and logistics increases the likelihood that food will be at room temperature for longer periods of time, thus potentially posing greater food safety risks.

On the other hand, under existing law many catering operations manage to deliver food safely to consumers by ensuring that food stays warm or cold during transport, or by simply minimizing transportation time. There are already numerous underground home-based catering enterprises which deliver hot food and other homemade foods to customers, so it might be smart to acknowledge this is happening and create some reasonable regulations around it. A new homemade food law could prescribe methods of delivering food safely, similar to existing commercial operations, to address the temperature control concern. Additionally, lawmakers may want to consider whether allowing deliveries would threaten the community-building opportunities afforded by homemade food.


This is another area where we might look to regulations for certified farmers’ markets in California for ideas. In order to sell agricultural products at a certified farmers’ market, one must be the producer of those goods. In a farm enterprise, this might include an employee who is hired specifically for operating the farmers’ market booth, and who has little to no responsibilities on the actual farm. However, a third-party contractor may not sell agricultural products on behalf of a farmer at a certified farmers’ markets. The individual selling food at the market must be an employee of the farm enterprise if not the farmer himself/herself. While employees may not necessarily have their hands in the dirt on the farm regularly, an employee typically has more direct contact with the farm than a legally distinct third party. This requirement that food be provided to the customer by an employee of the farm could be transferred to deliveries of homemade meals: the cook or one of his/her employees could make the delivery, but not a third party such as an uber driver.

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