Frequently Asked Questions - California Homemade Food Act

Important note: this is not a summary of everything you need to know about the California Homemade Food Act, but rather a list of frequently asked questions and answers. To read a summary of the new law or to download a copy of the full text of the bill that was signed into law, click here. Your local Department of Environmental Health should also have a lot of information about permits and fees and other details about how your local government agencies are implementing the new law.

Sustainable Economies Law Center (SELC) provides the information below as general information but please consult with an attorney if you have questions that are specific to your business.

The California Department of Public Health (CDPH) has their own webpage with additional information about cottage food operations here.

When is CDPH going to announce the additions to the list of allowed foods? Where can I find out what they are considering adding?

See CDPH's statement from April 7, 2014 here. These recently proposed additions have not yet gone into effect but we suspect that they will. Looks like some potentially good news for cake bakers, soup mix makers and dried vegetable enthusiasts!

My local health department says I need to source all of my ingredients from “approved sources.” What does that mean? What if I want to use fruit or nuts that I grow myself? What about fruit from my neighbor’s yard?

If you are purchasing your ingredients from a normal grocery store, a wholesale distributor that regularly provides foods to restaurants or grocery stores, or any farm selling at a certified farmers’ market, then these are all approved sources. Unfortunately, the law is vague about what an approved source actually is, especially for foods coming from less common sources, like backyard fruit and vegetables. Different counties have different rules about how a food producer becomes an approved source. In some counties the health department handles this matter while in other counties it’s the agricultural commission. If you are unsure, ask your local department of environmental health or your local agricultural commission how to make backyard fruit (or eggs or other food products) an “approved source” so that you can use it in your cottage food operation.

The California Health & Safety Code provides a vague definition of “approved source,” saying that it is a producer who complies with all applicable laws. If there are no applicable laws, an “approved source” is a producer who follows current public health principles and practices and generally recognized industry standards that protect public health. Be aware that county health departments vary in their policies about what constitutes an “approved source,” and many do not have a specific process for small farms and gardens to become "approved."

Every farmers market vendor must get a Certified Producer's Certificate by applying at the CA Department of Food and Agriculture's website: http://www.cdfa.ca.gov/egov/farmersmarket/producers_app_step1.asp. Even if you don't plan to sell at a farmers market, if your county doesn't have a formal process for becoming an "approved source," it may be a good idea to get this certificate, because it will help you make the case that your farm is an "approved source" for other purposes.

 

My local health department is asking for a lot of information from me! I have to provide any/all of the following information in order to get my registration or permit approved:

  • recipes for all of my products (not just a list of ingredients)
  • copies of the labels for every product I intend to make (not just one or a few sample labels)
  • a floor plan of my kitchen
  • a detailed list of all equipment I will use (such as cutting boards)
  • a list of sources of all of my ingredients
  • other information not explicitly required in the law

Is the health department allowed to require this level of detailed information for applicants for Class A or Class B permits for cottage food operations?

The new law does not require your local health department to ask for any of these materials listed above when issuing a standard permit or registration. Some have decided that they want to receive this kind of detailed information from all cottage food producers who apply for a permit or a registration form because they want to ensure that you are following various aspects of the law completely, since its their job to enforce the law. If you feel that your local health department is making the process excessively difficult, you may want to notify your county board of supervisors (or your city council, if your city has its own health department, separate from the county) and advocate, with other cottage food producers, that your elected leaders put pressure on the health department to avoid making the process excessively onerous.

What kinds of food can I sell from home in my Cottage Food Operation?

The list of allowed foods is as follows. If a food item is not on the list then you cannot make it in a cottage food operation. The list could change in the future but that would require some advocacy and a strong argument that the food is "non-potentially hazardous" (see following questions for more details).

  • Baked goods without cream, custard, or meat fillings, such as breads, biscuits, churros, cookies, pastries, and tortillas
  • Candy, such as brittle and toffee
  • Chocolate-covered nonperishable foods, such as nuts and dried fruit
  • Dried fruit
  • Dried pasta
  • Dry baking mixes
  • Fruit pies, fruit empanadas, and fruit tamales
  • Granola, cereals, and trail mixes
  • Herb blends and dried mole paste
  • Honey and sweet sorghum syrup
  • Jams, jellies, preserves, and fruit butter that comply with the standard described in Part 150 of Title 21 of the Code of Federal Regulations
  • Nut mixes and nut butters
  • Popcorn
  • Vinegar and mustard
  • Roasted coffee and dried tea
  • Waffle cones and pizelles

What are jams, jellies, preserves, and fruit butter that comply with the standard described in Part 150 of Title 21 of the Code of Federal Regulations?

You can read the definitions of all these terms at this link.

What is a non-potentially hazardous food?

Non-potentially hazardous foods are foods with a low water activity and high acid level that inhibits the growth of dangerous microorganisms. Basically it means non-perishable foods; foods that you would not normally keep in the refrigerator. The legal definition of non-potentially hazardous foods is that they have a pH of less than 4.6 and aw value of 0.85 or less. Foods that are perishable, such as cheesecakes, or custard fillings, or meringue pies, are not covered in the law. To sell foods that require refrigeration, you use a licensed commercial kitchen and take a food handler’s training class. Contact your local health department for requirements.

How can I get products added to this list?

California Department of Public Health can make changes to the list of allowed foods. Requests for additions can be submitted to fdbinfo@cdph.ca.gov. The request should include the name of the product as well as a brief description of the ingredients and the processing method.

Do I have to get a permit from the Health Department?

Yes! There are two types of permits you can choose from, depending on whether you plan to sell all of your food products directly to consumers yourself or whether you plan to sell some of your products through a local store or restaurant.

You need to get a Class A permit if you (your household members and/or your employee) will sell only directly to consumers. This includes sales at a farmers’ market, at roadside stands, at festivals and other events, from your home or anywhere where you or your employee are selling the food product directly to consumers. This also includes selling wedding cakes or other foods that will be purchased by an individual to serve to their guests at an event.

You need to get a Class B permit in order to sell indirectly to consumers such as by selling your food to a store, restaurant, café or any other business that will sell the product. In other words, you need a Class B permit if you will have any wholesale accounts. Note that you can only sell wholesale to businesses within the county you produce your food unless a different county specifically chooses to allow indirect sales of cottage food products from other counties.

How much do permits cost?

The prices are set by individual county Departments of Environmental Health based on what it costs them to issue permits. Your local county health department will tell you how much permits will cost. Generally Class A permits are much cheaper than Class B permits.

I want to do both direct and indirect sales. Do I need both a Class A and Class B permit?

No, you just need a Class B permit.

Do I need to have my kitchen inspected?

It depends on whether you will conduct direct or indirect sales for the most part. Cottage food operations with a Class A permit that conduct direct sales only (see “Do I have to get a permit from the health department?” for more info) will not have their kitchens inspected unless their local health department has a specific reason to suspect that their cottage food operation is violating the law. Cottage food operations with a Class B permit that conduct sales indirectly (and can also conduct direct sales) will have their kitchens inspected annually. This is why the Class B permit is more expensive. As with Class A, Class B Cottage Food Operations may need to have a kitchen inspection if the local department of environmental health has a specific reason to suspect a violation of law has occurred, in addition to the routine annual inspection.

My local health department is still not ready to issue permits or registration paperwork for cottage food operations. Weren’t they supposed to start doing this at the beginning of January? Is there anything I can do?

Yes, all local health departments were supposed to be ready to implement the new California Homemade Food Act on their first day of business in January 2013. If your local health department is still not issuing permits or registrations, we suggest that you be polite and persistent with the department in following up on your request. If after several attempts to get your registration or permit you are still unable to do so, we suggest that you notify your county board of supervisors (or your city council, if your city has its own health department, separate from the county) and advocate, with other cottage food producers, for your elected leaders to ensure the health department is implementing the new law as they are required to.

Do I have to take food handler’s training if I operate under the new cottage food law?

Yes. The law directs the California Department of Public Health (CDPH) to create a special food safety training course for cottage food operations, but they have not done so yet. In the meantime, CDPH has indicated that successful passing of a safe food handling course approved by the American National Standards Institute (which includes the certificate often known as a Food Handlers’ Card) will suffice until they come up with their own course. You can find a list of approved courses at this link. CDPH has their own webpage with additional information about cottage food operations here.

What counts as a “spice”?

There’s no precise legal definition but the US Food and Drug Administration has issued some guidance.

Do I have to carry liability insurance if I am operating under the cottage food law?

No, but we highly recommended that you at least carefully consider carrying liability insurance to protect your personal assets. Standard homeowner’s and renter’s insurance policies often do not cover liability associated with business carried out in the home but additional home business insurance can sometimes be added on to your policy.


Can I have pets in my home?

Yes, but they cannot be in the kitchen while you are preparing cottage food products. Small children are also not allowed in the kitchen while preparing cottage food products.

Can I deliver?

Yes, but only in California (for direct to consumer sales).

Can I sell online?

You can definitely advertise your products online and even process orders online. There are different interpretations of the law regarding how products are delivered. The letter of the law does not prohibit a cottage food operation from selling online and using the mail to deliver to the customer. However, an early version of the bill explicitly stated that sales by internet were allowed for cottage food operations and this was removed during a set of amendments made to the bill, leaving the letter of the law silent on the issue of internet and mail orders. The California Department of Public Health states on its website that deliveries must be made in person and not using a mail service, presumably because the department’s interpretation of the law is that it was the legislature’s intent to not allow sales by internet and mail delivery. Another interpretation of the law is that cottage food producers can use mail services for delivery because the California Health and Safety Code does not say anything suggesting that the mail would not be an appropriate way to deliver a cottage food product, and the list of ways that cottage foods can be sold within California is very open-ended. However, if you do decide to use the mail to deliver your products, beware that this may or may not be legal and that you are taking some risk.

Can I advertise?

Yes.

Do I have to charge sales tax?

Generally speaking, groceries are not taxed. However, foods that are served hot and are intended to be consumed at the same location where they are sold are subject to sales tax. If you are selling cottage food products, such as freshly made pastries, at an event and most of your customers consume the food at your booth right after they buy it, then you do need to collect sales tax. Aside from these types of situations, cottage food operations generally will not need to charge sales tax because non-potentially hazardous foods are typically taken away from the point of sale and consumed elsewhere. For more details about sales tax and food, consult an attorney or consult the State Board of Equalization’s Sales Tax and Food Guide.

Do I have to set up an LLC or a corporation to run my cottage food business?

You are not required to set up an LLC or Corporation for you business, and in fact, the wording of the law suggests that only an individual person (not a business entity) can get a cottage food permit. Some departments of environmental health are allowing LLCs and corporations to get cottage food permits and some are not. If your local department of environmental health is permitting business entities, you may want to do some research and/or speak to an attorney or an accountant about which entity is best for your business. SELC’s Legal Eats Guide has some information about this.

Do I have to pay tax on income from my cottage food business?

Yes. Consult with a tax professional for more details.

Does local zoning still apply?

Yes. Check with your city or county’s zoning or planning department to see if there are laws or regulations for home occupations. If there are, you may need to get a permit from the city to operate a business from your home, but the city or county cannot deny you a permit as long as your business complies with rules, such as restrictions on the amount of noise and traffic that your business can generate, or other such rules that may apply to a home occupation.

Where can I sell my products?

Note that in order to sell food or anything in most places there are other city or county laws that may require you to have a permit. Most farmers’ markets, event organizers and retail stores have their own policies regarding the sale of certain types of foods. This FAQ only covers information about registration and permitting for homemade food sales through departments of environmental health, which enforce state health and safety laws but not city and county zoning or any other laws. As far as the California Homemade Food Act is concerned, you can sell your products at farmers markets and other markets and fairs, from your own home, at special events and pretty much anywhere in the state of California as long as you or your employee are selling the product directly to the consumer (see the beginning of this FAQ about the issues regarding geographic restrictions on sales). If you obtain a more expensive Class B license, which involves an annual inspection of your kitchen, you can also sell your products to grocery stores, restaurants and shops that are within the same county where you process your foods (and possibly other counties if their health departments explicitly allow indirect sales of cottage food products from other counties). You cannot sell your homemade food products across state lines.

Why won’t ______ County let me sell my cottage food products there? I thought I was allowed to sell anywhere in California, not just my own county?

The California Homemade Food Act of 2012 stated that indirect sales could be limited to within your county and to other counties that specifically chose to allow the indirect sale of cottage food products from other counties. The Act of 2012 did not list any such restriction on direct sales, which were intended to be allowed anywhere in California, regardless of the county of origin. However, various state and local regulators have interpreted this part of the law in different ways and it created much confusion so in 2013 the legislature amended the law to make it even more clear that direct sales of cottage food products can happen anywhere in California (still not across state lines). So beginning in 2014 there should be more consistent enforcement of the provision that allows direct sales anywhere in California. Each county will still be able to choose to restrict indirect sales to local products only. If you would like to sell your products to a retailer, eg indirectly, in a county outside of your own, you can contact that county’s department of environmental health to inquire about their policy.

Do I need a business license?

Yes, and you can get one from your city or county.

What if I use ingredients that are composed of multiple ingredients? How do I deal with that on my label?

You must list all the ingredients on your label, including ingredients of ingredients. You can list ingredients of ingredients in parentheses immediately after the ingredient they are part of. Here’s an example:

Let’s say you are using a dark chocolate bar to make chocolate covered almonds and the label on the chocolate says this: “Ingredients: cocoa beans, sugar, cocoa butter.” While the chocolate label probably indicates what its total weight is somewhere on the label, it does not indicate what the weight of each of its ingredients are, so the law does not expect you to know that either when making the label for your packages of chocolate covered almonds.

Let’s also say that you have determined that the weight of the chocolate in each package of chocolate covered almonds will be greater than the weight of the almonds.

Your chocolate covered almonds package should have an ingredient list that looks like this: “Ingredients: chocolate (cocoa beans, sugar, cocoa butter), almonds.”

In this case, since you are using almonds, which are a common allergen, you need to have a separate statement notifying the consumer that the product contains almonds. Other common allergens are other types of nuts, dairy, soy and wheat.

Can I sell cheesecake, flan, pumpkin pie, and lemon meringue pie?

No, all those items require refrigeration.

But I’ve seen pumpkin pies out on tables at Walmart!

They contain chemicals which make them shelf-stable. They also don’t taste very good.

Can I make beer or other alcohol in my Cottage Food Operation?

No.

Can I make dog treats in my Cottage Food Operation?

If the dog treats count as one of the food products on the list of allowed foods (see above) then yes. If your dog treat recipe includes meat or otherwise is not one of the items on the allowed list then your dog treat business does not fall under the California Homemade Food Act.

Can I make X, Y, Z foods that are not on the list? Why not?

See “What kinds of food can I sell from my Cottage Food Operation?”

What other states have cottage food laws?

There are 34 (and counting) US states that allow the sale of homemade, non-potentially hazardous food and several states with grassroots efforts underway to implement similar laws. Click here to download an overview of cottage food laws in other states.

 

I have more questions. Lots more questions. Who do I contact?

Contact your local Department of Environmental Health with specific questions.

SELC has a very small staff and cannot offer legal advice by phone or email. Our capacity to respond to individual inquiries about AB 1616 is limited, but, if after reading this FAQ and our summary of the bill and after contacting your local department of environmental health you still have questions, you can email Christina@theSELC.org.

Additionally, this FAQ is not in any way legal advice. If you have any questions or concerns about how this law applies to your business we suggest you contact an attorney.

Special thanks to Kelley Masters of TexasCottageFoodLaw.com for letting us adapt her FAQ to develop this document!


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