Home Free: Legalizing Home-Produced Foods

This commentary is offered by guest blogger, Nicole Civita, an attorney candidate in the LL.M. Program in Agricultural & Food Law at the University of Arkansas School of Law.  Nicole's bio appears at the conclusion of the post.

Just as the local and slow food movements picked up speed, the American economy slowed to a crawl. The downturn forced all kinds of people to rediscover thrift and identify alternative income streams. The new focus on traditional food-ways provided many folks with a way to feed their families, their bank accounts and their creativity.  As Americans got the hang of growing food in their backyards and learned ways to use and preserve their bounty, many began to process and market the excess.  Droves of green-thumbed gardeners, happy home-bakers, kitschy canners, and off-beat fermenters began selling their wares at farmers' markets, to independent restaurants, and via online outlets like Fooducopia.   While many of these part-time cultivators and artisan food producers may have felt like renegades, few realized that they were often engaged in unlawful activity.

At it turns out, in some places, selling your neighbor the carrot-zucchini bread that you cooked up in your kitchen -- regardless of how often you clean or how carefully you select and handle your ingredients -- can violate a whole host of health and safety regulations.  Simply selling (or donating) all that extra whole, raw zucchini that just wouldn't stop growing behind your kids' swing set can get you in trouble.  Growing edible plants in your yard (even if they are for your own use), engaging in commerce (even if only a few dollars change hands) or operating a business (even a tiny sole proprietorship) from your home can run afoul of zoning laws and is likely to be prohibited by the terms of most residential leases and homeowners' association covenants. Such activities may also be subject to agricultural or environmental regulations.

The Rise of Cottage Food Laws

At the urging of many small-scale food-entrepreneurs and their hungry customers, 32 states have enacted cottage food laws, also known as "baker's bills" and "homemade food acts."  In general terms, these law expressly permit the intrastate sale of certain foods made in home kitchens.  The majority of these laws have been enacted in the past five years. Each of these 32 states takes a different approach  to regulation and exemption of small-scale food production.  Most states limit the types of foods that may be produced and sold under their cottage food laws to non-potentially-hazardous items such as baked goods, candies, jams, jellies, sauces, pickles, flavored vinegars and oils, and non-perishable dry goods that do not require refrigeration (i.e., seasoned popcorn, honey, dried fruit, nuts, tea, coffee herbs, spices).  Perishable products, meats (including smoked and cured preparations), and items containing uncooked dairy (such as pastries with cream fillings) are often outside the scope of cottage food production protections.

Cottage food laws are premised on a common understanding that food entrepreneurs ought to have the opportunity to develop their products, build a customer base, and earn a little money before bearing the expense of expanding into a commercial kitchen.  These laws also recognize that small food businesses generate a variety of public and private benefits: (i) they provide accessible supplemental income streams for individuals and families; (ii) they increase consumer access to unique, often more healthful and sustainable, comestibles; and (iii) they increase local economic activity by helping to keep a portion of consumers' food dollars local.

These benefits do not, however, eclipse the government's overriding interest in making sure that all food, regardless of where it is produced or sold, is safe.  Exception from the requirement of producing food in a certified or inspected kitchen or on commercial grade equipment is not a free pass.  Many states require cottage food producers to comply with less onerous and costly requirements designed to enhance food safety.  For example, these small producers may be required to attend food safety courses, obtain a local zoning permit or variance, and comply with certain labeling requirements or disclosures before marketing their products.  And most importantly, cottage foodies, like their established commercial counterparts, face strict liability in the event that their food makes a consumer sick.  Thus, amateur chefs seeking to sell their edible wares would be wise to set up an LLC or other business entity to limit their personal liability and obtain product liability insurance.

Time for Homegrown Food Laws?

Cottage food laws facilitate the home-based production and sale of processed food products, but they do nothing to remove the legal barriers to cultivating and selling raw agricultural products from one's home.  Even though the health, environmental, and economic advantages of growing your own food are widely touted, relatively little attention has been given to making sure that all people, not just those who own private homes with ample acreage, have meaningful opportunities to grow food where they live.  Even less effort has been made to facilitate the sale and donation of homegrown food.  But that may be about to change...

The Sustainable Economies Law Center (SELC),  an Oakland, California-based non-profit organization is actively seeking a state legislator to author and sponsor legislation that would make it illegal for local governments, landlords, and homeowners associations to prohibit or unreasonably suppress urban and suburban agriculture.

After its successful lobbying effort facilitated the passage of California's Homemade Food Act,  a comprehensive and especially well-drafted cottage food law that will go into effect on January 1, 2013, the SELC, has proposed a framework for a companion "Homegrown Food Act."   The stated purposes of the Homegrown Food Act are to:

1) Increase access to fresh, locally sourced produce for all Californians regardless of location and other socioeconomic limitations;
2) Allow individuals to supplement their incomes through sale of produce grown at home or on other urban or suburban land; and
3) Reduce the carbon footprint of our food system by enabling the increased cultivation of produce in or near places it is consumed.

The SELC's proposed Homegrown Food Act appears to be the first state-level legislative initiative of its kind.  Proponents of a Homegrown Food Act note that while it would remove unnecessary barriers to the small-scale cultivation, sale, and donation of edible plants in non-agricultural regions, it would not wholly exempt such production from relevant health, agricultural, or environmental regulations.  Thus, the law would increase opportunities for food production without upsetting existing limitations on how food producers must behave.

In an effort to advance the aforementioned interests and afford maximum protection to those growing food for personal use, the proposed legislation draws an important distinction between "personal" and "entrepreneurial" agriculture:

Personal Agriculture:  A use specific to residential zones in which individuals cultivate produce at their own residence for personal consumption or donation.

Entrepreneurial Agriculture: A use in which land managed by a public entity, nonprofit organization, business entity, individual, or group of individuals is used to cultivate produce for the purpose of sale.

To alleviate zoning obstacles to urban and suburban agriculture, the Homegrown Food Act declares that (i) all personal agriculture and (ii) entrepreneurial agriculture that occupies 5,000 or fewer square feet are permitted accessory uses in residential zones.  Entrepreneurial agriculture on a larger scale may be subject to conditional use permitting requirements.  To maintain an appropriate character and scale, only mechanical equipment designed for household use may be used in entrepreneurial agriculture.  Additionally, retail sales and other public uses of entrepreneurial agricultural facilities can only occur during designated hours, 7 a.m to 7 p.m.  To increase available land for cultivation, community gardens would be permitted in residential, commercial, and industrial zones.

The SELC's preliminary draft of the bill makes a valiant attempt to advance urban and suburban agriculture while remaining sensitive to the varied purposes of mixed use spaces and the competing needs of all inhabitants of residential areas.  The proposed Homegrown Food Act sets forth setting-specific permissible food production and marketing practices for community gardens, on leased private property and within private common interest developments. For example, the drafters have attempted to avoid the ire of homeowners' associations, which tend to be especially sensitive about the aesthetic implications of front-yard food production, by allowing them to limit edible plants over 6 feet in height and require home gardeners to promptly remove weeds and dead plant materials other than ground cover.  They also attempt to minimize discord in multi-unit residential buildings by requiring residents who wish to grow food in common area to provide their co-tenants with notice of and an opportunity to object to the proposed food production. Finally, they have included mechanisms to protect the property rights of landlords by (i) requiring home gardeners to restore or pay for the restoration of landscaping when they cease cultivation of or vacate the premises, (ii) authorizing additional security deposits for home personal and entrepreneurial home gardeners, (iii) allowing landlords to charge tenants for excess water and waste collection costs related to their food production activities, and (iv) allowing landlords to require tenants engaged in entrepreneurial agriculture on premises to maintain liability insurance at statutorily defined coverage levels, among other things.

For as much as it accomplishes, the proposed Homegrown Food Act could go further.  For example the draft law does not -- but ought to -- expressly address a grower's property rights to the crops grown in common areas.  Nor does it create a mechanism for resolving disputes about competing agricultural uses of shared spaces.  The law should also provide some limitations on the application of chemical substances, including fertilizers, pesticides, rodenticides, insecticides, paints, sealants, paving materials, etc., by the landlord, home-grower, or other tenants on or near areas where edible plants are cultivated.  The proposed law does not, but could, expressly protect home food growers in the event of damage to their crops by the landlord or his agents, tenants, and other users of the common areas.

The SELC's proposed Homegrown Food Act provides an extremely useful platform for future legislative efforts to expand the concept of productive land and spaces, encourage food production in non-traditional locations, and support personal and local small scale food production.  Not only can it serve as the foundation for legislation in California, but it can also be used as a customizable, expandable template by other state and local governments -- especially those interested in picking up where cottage food laws leave off.

Nicole Civita is a candidate in the LL.M. Program in Agricultural and Food Law at the University of Arkansas; she is also the Graduate Assistant for the LL.M. program.  Nicole received her B.A. from Columbia University (American Studies / Creative Writing) and her J.D., magna cum laude, Order of the Coif, from the Georgetown University Law Center.  Nicole presently serves as General Counsel for Veggiecation, LLC, an innovative vegetable and nutrition education program for children.  Previously, Nicole was an Associate at the international law firm of Hogan Lovells, where her practice focused primarily on employment law.  Nicole also has a background in child advocacy; she was a student attorney in the Georgetown Juvenile Justice Clinic, a legal intern with Lawyers for Children’s America, and a recipient of the University of Michigan Bergstrom Child Welfare Law Fellowship. She is admitted to practice law in California, New York, and the District of Columbia.