No Bake State - Can You Bake For Cost? Donate Time/talent?
Decorating By hoosierhobbyist Updated 18 Mar 2011 , 7:53am by indydebi
I don't have a cake business since we moved to a no-bake state (IN), just love decorating cakes. I donate for school events, church and community events, friends & family and enter in cake shows. Lot's of practive on cake dummies. I've been asked to do a wedding cake for a friend of a friend's son. I would love to do it, but know I can't charge for it. Does anyone know if the bride/groom buy the ingredients and I make no profit, just great experience, could I still be breaking any laws?
I've read here, anecdotally, that some Indiana county health departments are interpreting the new Indiana Cottage Food Law to mean that you CAN sell from home. The only authority that can answer your questions is your county's health department. You may be pleasantly surprised! 
Here is some information you might want to read before you call, just to be as informed as possible: http://www.in.gov/isdh/files/HEA_1309_guidance_final_6_11_09.pdf
It's actually not a Cottage Law, it's a Home Based Vendor law. I did contact the health department here and was told it applies to Farmer's market sales only. No pick-up or delivery. "But we don't regulate it. So you can do it however." The next day another health department emplyee said no problem can bake from home, no license, inspection etc. I asked her to put it in writing and she said "Oh, I can't do that!" The next day, the Health Dept employee didn't even know what the Home Based Vendor law was. The law is very clear, it's a farmer's market or roadside stand only.
I know I can't sell the cakes. But if the bride just pays actual ingredient costs is it considered "selling" the cake?
I know I can't sell the cakes. But if the bride just pays actual ingredient costs is it considered "selling" the cake?
Yes, any compensation given in exchange for the cake (including services or barter items) is considered "selling". Of course you could still give the cake as a gift.
That said, if this is a one-time thing and you keep it on the DL you could probably work out an under-the-table cash arrangement with minimal risk. You definitely don't want to advertise yourself as anything remotely resembling a business though.
If you'd like to accept compensation for cakes, you would need to rent space at a commercial kitchen or incubator and get inspected. I know of at least one incubator in IN, in Bloomington: http://www.localgrowers.org/incubator.html
Even on the DL, you should have the bride check with her venue to see if they'll even allow the cake. Depending on the type of venue, they may not allow a cake that's not from a licensed baker, even if it's a gift, baked by the bride's dear old auntie.
But if the bride just pays actual ingredient costs is it considered "selling" the cake?
As I said before, you should ask your local health department this question. No one here has the authority to interpret or apply the law to your specific situation.
I live in Indiana, Delaware County, and my health department said that I can as long as I give a written disclaimer that it was baked in my home kitchen that hasn't been inspected and that I'm not licensed. He said that the Farmer's Market part of the law means roadside stands also, and that to fit into the law, I'd technically have to have a table set up at the end of my driveway and have the customer pick the cake up from me there. He said that there's no way to prove that I didn't have a table set up (roadside stand) at the time of the sale, so I guess he basically told me to go ahead and break the law because there's no chance of me getting caught. Gotta love that!
I'm in the same boat as you are! I live in Indiana (fort Wayne)
I'm a beginner, home baker and decorator. The "home based vendor" laws are so ambiguous...I made a four tier, snowflake, wedding cake last year for free...my gift to the bride and groom... just to keep from getting in any trouble.
It's so frustrating to know how to precede in setting up something simple, but legal, from our own homes!
Looking forward to the replies/answers you get from your question.
I live in IN also. I make cakes on occasion and sell them. (maybe 3 or 4 times a year) I suppose technically I am breaking the law. If you don't advertise and you don't set yourself up as a business I don't think you would be in any danger of being prosecuted. Only you can decide for yourself if you wish to be that law abiding. That said I can not believe that if the bride paid for the ingredients and you baked and decorated the cake that that could be called "selling" the cake. If it worries you have the bride buy the ingredients and bring them to you. I don't see how that could be even be considered bartering. You could always call and ask if you handled it that way if it was breaking the law.
You could always call and ask if you handled it that way if it was breaking the law.
The verbal consent of a government worker means absolutely nothing...you'll need to get written consent, ideally citing the section of the state/county/municipal code that authorizes you to legally transact business in the requested fashion.
Any change in personnel or even a directive to increase revenue by enforcing existing laws could result in legal consequences down the road if you don't have written consent. It's pretty easy to minimize risk by keeping a low profile in the community but the risk is still there.
I've tried to read, and decipher, the Indiana Home Based Vendor Act.....you just about need legal representation to understand any of it.
I think I understand that we're not permitted to deliver cakes that are made from our home... And no one is legally permitted to come into our homes to pick up cakes.....
But....if I set up a patio table at the end of my driveway.... then, place the cake onto the table,
then, I'm operating within the laws stated in the HBV ACT and I'm good to go????
that's insane.... Now, all I have to worry about is the homeowners association knocking on my door and complaining about operating a business out of my house!
I think I understand that we're not permitted to deliver cakes that are made from our home... And no one is legally permitted to come into our homes to pick up cakes.....
But....if I set up a patio table at the end of my driveway.... then, place the cake onto the table,
then, I'm operating within the laws stated in the HBV ACT and I'm good good to go????
It actually makes sense if the intent of the law was to discourage full-fledged retail bakeries and restaurants from operating out of people's homes, by forcing the manufacture and the sale of the food to be in two different structures (even if those two places are only a few hundred feet apart).
kelleym posted legal guidance from the state of IN (linked again below), it includes a pretty clear discussion about the law. As long as your "roadside stand" only sells products made in your home kitchen, you have the correct labeling, and you are not violating any local zoning ordinances you should be fine (see page 5 for the relevant points).
http://www.in.gov/isdh/files/HEA_1309_guidance_final_6_11_09.pdf
The more I read about the IN HBV law, the more I like it...since it specifically disallows delivery to anywhere except farmer's markets and the roadside stand, it allows small bakers to legally sell their products to the public while still leaving licensed bakeries with commercial kitchens the higher-end market, which usually involves delivering orders to venues. IMO this is a more elegant legal solution than trying to enforce a cap on sales for HBVs.
Now, all I have to worry about is the homeowners association knocking on my door and complaining about operating a business out of my house
That's a valid concern...all the HOAs I've been in have had pretty draconian penalties for commercial activity in your residence. Of course the enforcement of HOA rules varies widely, but in this case the commercial activity would be quite visible to neighbors if houses are close together.
I guess the biggest question I have would be to clarify the legal definition of
"roadside stand"... According to my local regulations.
And then, try find out if I can advertise a "home based vendor business"....
ALL WITHIN THE LEGAL BOUNDERIES of the HBV act.
My aspirations are NOT to do the type of business that is portrayed
on some of the cake shows on tv where they have many cake orders per day.
I would be happy doing one cake a month...I think my neighbors would be
Fine with it.
Right now, I'm in a cast up to my knee and I cant bake or walk... No fear of me taking over the industry
Anytime soon!
I've tried to read, and decipher, the Indiana Home Based Vendor Act.....you just about need legal representation to understand any of it.
I think I understand that we're not permitted to deliver cakes that are made from our home... And no one is legally permitted to come into our homes to pick up cakes.....
But....if I set up a patio table at the end of my driveway.... then, place the cake onto the table,
then, I'm operating within the laws stated in the HBV ACT and I'm good to go????
that's insane....
I agree. The Indiana law is a badly written hot mess. I use it as an example of what NOT to do as I am working to get the Texas law changed.
Jason - I'm not sure why you think having written permission is indisputable. The fact is, that any change in personnel can mean that something that is a-ok today, is illegal tomorrow, written permission or not. In the book Everything I Want To Do Is Illegal, the author talks about a new USDA inspector coming to his farm and finding him in violation of key rules that he had seemingly been in compliance with for 10 years under his previous inspector. No rules had changed the only explanation given was, Im interpreting the rules differently. If the person who gives you written permission leaves, what good will their letter be, 6 months later?
I simply lack the energy to get worked up over worrying about whether accepting payment for one single cake constitutes breaking the law. Thats not what laws are written for. Thats not why theyre in place.
Fortunately my health department feels the same way and yes, the verbal permission of my countys rep is good enough for me. Ill keep on selling one cake every 3 months, and I wont lose any sleep over it.
I guess the biggest question I have would be to clarify the legal definition of
"roadside stand"... According to my local regulations.
The issues relating to municipal government would probably be potential zoning violations and/or whether or not a separate "peddler's license" is required for the roadside stand, the legal definition is pretty clear from the linked document.
And then, try find out if I can advertise a "home based vendor business"....
ALL WITHIN THE LEGAL BOUNDERIES of the HBV act.
There's nothing in the law or the legal guidance that restricts advertising, so you should be OK there, but I would still include a disclaimer in the ad indicating that you are running your business under the IN HBV law and you are not inspected by the health dept. The guidance specifically mentions that preordering by phone or email is OK.
I'm not sure why you think having written permission is indisputable. The fact is, that any change in personnel can mean that something that is a-ok today, is illegal tomorrow, written permission or not.
Nothing is "indisputable", but govt workers typically do not give written guidance on laws unless they are absolutely sure they are correct and said guidance has been reviewed by a supervisor and/or attorney.
If you get written guidance saying something is OK because a specific subsection of the law says so, a change in personnel will not change the underlying law. It's certainly possible that the govt worker who issued the written guidance and the reviewing supervisor/attorney were both incorrect, but that situation is pretty unlikely.
The Indiana law is a badly written hot mess. I use it as an example of what NOT to do as I am working to get the Texas law changed.
I'm curious, what specifically do you think is badly written in the IN law? The only big issue I could see was the lack of a definition for "roadside stand", but the legal guidance issued by the DoH remedied that.
The next day another health department emplyee said no problem can bake from home, no license, inspection etc. I asked her to put it in writing and she said "Oh, I can't do that!"
You gotta love it...
I have been working on getting a HBV business started in Indiana., I contacted my local health department and asked them to clarify their interpretation and if it would be legal to sell cakes from home and the head of the local department called back and left me a message with his name and stated that as long as I give the customer a sheet with the ingredients and the standard HBV wording "that I am not inspected by the health department" that it is perfectly legal in Indiana at this time to sell from home. I am still working on setting up the LLC and getting insurance but then I am going to go for it. It would only be maybe a couple of cakes a month and for friends and family but it will be nice to finally get paid for doing something I enjoy. I work full time and am a single mom so I don't have the time or energy to devote to more than that but the little extra income and not spending so much on ingredients to give away will be nice.
Yep, Indiana's a little tricky to understand. I contacted my local HD and was told that yes, cakes are covered under the cottage law or hbv, but can only be sold at a roadside stand or farmers market. I laughed and told him it's a little tricky to tell a bride to swing by the farmers market and pick up their 4 tier wedding cake on the way to the church...he laughed and agreed it's a very grey area. As long as I don't advertise as a cake business (only word of mouth) there's no way to regulate what one person does with another (i.e. paying for a cake you made). Who knows, I may call the HD next week and get another version....you never know. 
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