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.
Sustainable Economies Law Center (SELC) does not provide legal advice about the California Homemade Food Act or other legal topics and the information below should not be considered legal advice, so 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. Please note that SELC and CDPH have different interpretations regarding two facets of the new law: 1) CDPH has informed the public that sales of cottage food products can only be conducted within the county where the products were produced whereas SELC’s interpretation of the law is that sales of cottage food products can occur anywhere in California, and; 2) CDPH has informed the public that cottage food products cannot be delivered by mail (including the US Postal Service, FedEX and UPS), whereas SELC sees no legal justification for this restriction and maintains its interpretation that the mail can be used to deliver cottage food products.
My local health department says I need to source all of my ingredients from “approved sources.” What does that mean? How do I know if the ingredients I’m using are from “approved sources”?
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.
What if I want to use fruit or nuts that I grow myself? What about fruit from my neighbor’s yard? Is that an “approved source”?
It might not be, but you might be able to make it become an approved source. Different counties have different rules about how to become an approved source. In some counties the health department handles this matter while in other counties it’s the agricultural department. If you are unsure, ask your local health department 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. Note that this year the California State Legislature will likely consider a bill to standardize this process throughout California and hopefully make it simpler! So if your local government doesn’t already have an easy way for your backyard grown food to become an approved source, we hope that next year they will. Sign up for SELC’s newsletter if you want to be kept in the loop about this law and other laws that remove legal barriers to urban agriculture!
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 and not typically required for permits in most regular commercial kitchens
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 the law completely, since its their job to enforce the law. If you feel that your local health department is making the process excessively onerous, 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?
- 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
- 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. Sustainable Economies Law Center plans to advocate for increasing the scope of jams and other fruit preserves allowed under the new law.
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?
You can contact the California Department of Public Health (CDPH) to make suggestions of other non-potentially hazardous foods to be added to the list.
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 anywhere in California. 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.
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. 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 finalized 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, that your elected leaders ensure the health department is implementing the new law as they are required to by state law.
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 home business operations.
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.
Can I advertise?
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 at home or 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, but if you do not, the law will consider your business a Sole Proprietorship or Partnership by default. After consulting with an attorney or tax adviser you may decide that you would prefer for your business to be a Corporation or LLC because this would provide you with extra liability protection and other possible benefits if you manage it properly. There are many factors to consider that will be unique to your business in this decision that you may want to further research and consider.
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. 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.
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 in my Cottage Food Operation? What about foods that include liqueur, vodka or other alcohol?
Can I make dog treats in my Cottage Food Operation?
We don’t know. We’ve received this question many times and the laws pertaining to dog food really aren’t our area of expertise or something we thought about when we proposed this bill. We’ll update this FAQ if we find out anything about this issue.
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 33 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. 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 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!