The post-industrial history of America’s food system has overwhelmingly been one of consolidation and industrialization. Massive “factory farms” are now responsible for 95% of all chickens, eggs, turkey, and pork consumed in the United States, as well as over 75% of the total beef. Farm acreage has increased, even as the total number of farms has decreased. The average American meal contains components from five different countries.
The rise of the factory farm, overcrowded chicken houses, and endless acres of corn has become well documented in popular culture, by the likes of Michael Pollan in his bestselling book The Omnivore’s Dilemma, and in documentaries such as Food, Inc. As Americans have become more aware of the pitfalls and shortcomings of the present system, change seems to be in the air.
The story of food in America during the twenty-first century would be incomplete without acknowledging the renewed interest in farmer’s markets, organic farming, and eating local, however. Demand for food grown and prepared locally is now as high as it’s been in years, and entrepreneurial farmers, bakers, and cooks are looking to meet it. Beyond being a way for these food producers to turn a passion into a business, the local food movement is credited with improving both the local economies in which it operates and the environment.
One of the biggest obstacles faced by these producers as they start out is, unfortunately, the regulatory environment. Regulations were written with the presumption that food would be produced on a scale much larger than what these food entrepreneurs now have in mind. Expensive permits and licenses, routine inspections, industrial kitchen spaces complete with stainless steel surfaces, multi-basin sinks, and extensive record keeping are just a few of the burdens food producers face in the name of good health.
Promoting health is obviously a hard proposition to quarrel with, and in many settings these regulations are both necessary and effective for achieving it. However, these regulations are significant burdens on food producers which can often make small scale production prohibitively expensive. This is unfortunate, considering the possibility that many foods can be safely made when produced on a small scale without the heavy-handed regulation designed for larger operations.
One approach to the problem of poorly calibrated regulations has gained significant momentum in state governments in the past few years: cottage food laws. These laws aim to deregulate the production of food in certain, narrow contexts that will not create health risks.
Although not universally adopted, all but eight states have passed cottage food laws of some kind. Each state’s laws are unique, but the common themes running through the laws can be easily stated. They generally single out certain classes of foods, typically closely following the FDA’s definition of “non-potentially hazardous foods.” Such foods do not present a significant risk of bacterial contamination, and so do not require safety steps such as careful monitoring of temperature during production and storage. Common examples of non-hazardous foods include baked goods, jams, jellies, dried pasta, granola, and high-acidity pickles. Under cottage food laws, these foods can be sold to consumers exempt from most state regulations, as long as the seller meets certain criteria. Typical requirements include preparing the food in the seller’s primary residence, strict limits on the number of employees involved in the operation, mandatory person-to-person sale to the consumer, limits on the total income the sales generate each year, and a labeling or disclosure requirement.
The cottage food approach is a sensible one, because it greatly reduces the burden of startup and operational costs that would otherwise inhibit small-scale producers of local foods, while still taking the public’s risk of foodborne illness into account. By exempting foods that are relatively low-risk, regulators can focus their limited resources on higher risk foods such as eggs, meat and dairy. Fear of disease outbreaks in the wake of deregulation have not yet materialized where cottage food laws have been adopted—Pennsylvania, for example, has reported zero instances of contaminated food from registered cottage-food producers in the forty-year history of its program. Whether the laws have successfully accomplished the goal of reducing start-up costs for small food producers has not been studied adequately enough, although early evidence is promising: a Texas study suggests small producers who no longer have to acquire a commercial kitchen essentially gain $10,000 in operating capital. The strongest criticisms of the programs seems to be that they don’t go far enough: many states are hearing calls to increase the variety of foods allowed under the laws, and to allow producers to sell to local grocery stores and retail outlets.
Possible next steps to further the aims of these programs include broadening the scope of the cottage food exemptions, such as by raising the annual income cap or increasing the producer’s selling options by allowing sales either online or through intermediary stores. Cottage food laws could also expand by exploring ways of efficiently managing the potential dangers of higher risk foods, especially when they are being produced on a small scale. The direct relation of some of these limitations to safety is unclear, and removing them would lift the financial burden on food producers even more, especially for those trying to make the transition from hobby to business.
While not strictly speaking a cottage food law, Vermont recently made a noteworthy move toward further empowering local producers by authorizing the on-farm, outdoor slaughter of small numbers of livestock. This meets a growing demand for local meat, while providing for safety by requiring registration with the local government, limiting the number of animals sold, and imposing a number of sanitation requirements such as a trained third-party slaughterer; it is also much cheaper for farmers to implement. Health and safety should always be key considerations for regulators, but the success of cottage food laws is a useful reminder of the importance of matching the regulation to the activity with care.
The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.
Adam Kennedy is a General Member on MJEAL. He can be reached at firstname.lastname@example.org.
 James I. Pearce, A Brave New Jungle: Factory Farming and Advocacy in the Twenty-First Century, 21 Duke Envtl. L. & Pol’y F. 433, 434 (2011).
 Sam Robinson, New Census Data Shows Decrease in the Number of Farms, Growth in the Average Farm Size, Midwest Ctr. for Investigative Reporting (Feb. 20, 2014), http://investigatemidwest.org/2014/02/20/new-census-data-shows-decrease-in-the-number-of-farms-growth-in-the-average-farm-size/.
 National Resources Defense Council, Food Miles: How Far Your Food Has Travelled Has Serious Consequences for Your Health and the Environment, Health Facts (Nov. 2007), https://food-hub.org/files/resources/Food%20Miles.pdf.
 Nicholas R. Johnson & A. Bryan Endres, Small Producers, Big Hurdles: Barriers Facing Producers of “Local Foods”, 33 Hamline J. Pub. L. & Pol’y 49, 97-99 (2011).
 Id. at 70-79.
 Alli Condra, Cottage Food Laws in the United States, 4, Harvard Food Law and Policy Clinic (August 2013), http://blogs.harvard.edu/foodpolicyinitiative/files/2013/08/FINAL_Cottage-Food-Laws-Report_2013.pdf.
 Id. at 5.
 Id. at 5.
 Nina W. Tarr, Food Entrepreneurs and Food Safety Regulation, 7 J. Food L. & Pol’y 35, 59 (2011).
 Alli Condra, Cottage Food Laws in the United States, 10-11, Harvard Food Law and Policy Clinic (August 2013), http://blogs.harvard.edu/foodpolicyinitiative/files/2013/08/FINAL_Cottage-Food-Laws-Report_2013.pdf.
 Id. at 12-16.
 Matthew Read, Chapter 415: Big Help for Small Businesses, 44 McGeorge L. Rev. 703, 709-10 (2013).
 Nicholas R. Johnson & A. Bryan Endres, Small Producers, Big Hurdles: Barriers Facing Producers of “Local Foods”, 33 Hamline J. Pub. L. & Pol’y 49, 108 (2011).
 Id. at 116-117
 Kate Robinson, New Slaughtering Rules Are a Way Forward From Vermont’s ‘Black Market’ in Meat, vtdigger.org (May 27, 2013, 9:47 AM), http://vtdigger.org/2013/05/27/new-slaughtering-rules-are-a-way-forward-from-vermonts-black-market-in-meat/.