By Christina Oatfield, Sustainable Economies Law Center (SELC) Policy Director
I recently blogged about new legislation seeking to expand the legal scope of the sales of homemade meals and we at the Sustainable Economies Law Center (SELC) co-hosted a town hall about it last Wednesday, April 20. Here’s a continuation on that story with some major updates and reflections on the future of homemade food in California….
What's been happening in terms of homemade food and the law
California’s AB 2593, a bill to legalize the sales of homemade food, including hot meals, was halted by the author, Assemblymember Cheryl Brown (D, San Bernardino). The bill sponsor, tech start-up Josephine, is committed to furthering discussions about the legalization of the sales of homemade meals and hopes to return to the State Capitol next year with a refined legislative proposal that will have a better chance of mustering up enough votes to progress. At our town hall discussion at Josephine’s office in Oakland we had a fascinating discussion about the need to rethink food safety regulation with an eye toward community building, creating economic opportunities for all types of people (not just those with the financial resources to access expensive commercial kitchens), increasing access to fresh food, and the promotion of local agriculture instead of an industrialized food system. I can’t possibly summarize all the points that were made but the meeting left many of us feeling like a food revolution is brewing.
Josephine is one of numerous tech start-ups seeking to facilitate the sales of homemade meals despite the fact that the default rule in California is that food offered to the public must be prepared in a commercial kitchen regulated by a health department, and in California’s Health and Safety Code, a home kitchen is expressly prohibited as a place where a commercial food facility may operate. While the Homemade Food Act of 2012 (a bill that SELC very actively supported) carved out an exception to this rule, it only accommodates “not potentially hazardous” foods, which are foods such as jams, breads, some pastries, nut butters, mustard, candy, and other similarly shelf-stable and low-risk foods. Pickles, some sauces, frozen foods, hot meals, and prepared foods such as salads made of leafy greens are not within the scope of “not potentially hazardous” and, therefore, are not within the scope of foods allowed to be made for sale in a home kitchen. While these laws are designed to protect consumers from microbes that can grow in our food and make eaters sick in the short term, most of our food regulations in the United States do not make any significant progress toward preventing long-term developing diseases such as diabetes and heart disease, which are often caused by nutritionally poor diets.
What we've been thinking about at Sustainable Economies Law Center
The fact that so many home cooks, consumers, and now tech companies, too, are willfully defying food safety laws is clearly a reaction to this broken, short-sighted food regulatory landscape.
This recent San Francisco Chronicle article provides a positive example of a home cook pleasing customers and building community through her home kitchen, where she cooks meals sold via Josephine. Consumers and food producers alike are craving a more organic, humane, and community-rooted food system, in place of the large-scale, industrialized food system.
For those reasons and because we see local food processing as a huge opportunity for creating meaningful jobs that build health, wealth, and community, we at the Sustainable Economies Law Center (SELC) would love to see more home-based food enterprises in neighborhoods all over California, and for these enterprises to be supported by sensible food safety regulation, not driven underground.
However, looking at how certain tech start-ups have facilitated sales of goods and services in ways that have dramatically altered our economy raises some concerns for us, too. Uber, Lyft, and Airbnb have all arguably provided some opportunities for individuals with extra room in their home or car to make extra income out of such resources, and they have famously disrupted industries that were arguably not adequately responding to consumer preferences amidst dysfunctional regulatory systems. However, these companies have all been severely criticized for exploiting service providers, unfairly competing with already established businesses, violating various safety, nuisance, tax, employment, and other laws, and failing to ensure adequate safety mechanisms to protect users and the surrounding community.
Will similar problems arise as a consequence of the increasing popularity of sales of homemade meals through internet websites? How can we decriminalize neighborhood-based sales of homemade meals in a way that disrupts corporate control of the food system, rather than simply adds a few tech giants to the map of corporate control of the food system?
As we ask ourselves and our allies these questions at SELC, I keep thinking about certified farmers’ markets in California. California has unique statutes and regulations that impose numerous requirements on the management of certified farmers markets and on the farmers who sell at farmers’ markets to help ensure that food sold at these markets is actually provided directly from the farm and are sold by the farmer or an employee of the farm enterprise. There are lots of interesting rules that relate to farmers’ markets, and a very fascinating history of legislative and regulatory reform in this area that we’ll write about on this Food News Blog in the near future.
But the specific farmers market regulation I keep thinking about lately is this: 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, nonprofit, farmer, or group of farmers. No other entities are allowed to operate a certified farmers market in California.*
So what if we applied a similar approach to sales of homemade meals? What if the law said that in order to advertise and sell homemade food or take a cut of sales of the food, one must be the cook, a partnership of cooks or perhaps a cooperative enterprise controlled by a group of cooks, a nonprofit, or a government agency? Could we replicate some of the success of farmers’ markets in California with such a law? Should other restrictions and requirements apply? And how would such a law be enforced? Since local environmental health departments primarily employ food safety experts, not corporate law experts, would these local agencies or any state agencies have the resources to enforce the law? Would we need permitting with fees associated in order to adequately fund enforcement? Or, would leaving enforcement up to private rights of action by individuals through courts suffice?
We at SELC have more questions than answers about this regulatory conundrum at this time and we look forward to convening more discussions with food producers, eaters, and good food advocates to come up with a robust proposal for creating a more community-controlled and healthful food system through homemade food. Love these ideas? Disgusted by them? Have a different idea? Post a comment below.
*Note: while a “certified” farmers’ market must follow all these laws, there is no law that prohibits another type of food enterprise from calling itself simply a “farmers’ market” without the term “certified” in there, and some local food advocates are wary of this loophole. There has even been some discussion about proposing legislation to close that loophole though, to our knowledge, no legislation has yet been introduced to address it.