cakelady2266 Posted 18 Apr 2012 , 3:32am
post #1 of

I apologize in advance for asking a dumb question and I'm not trying to start a war. I don't know a lot about Cottage Food Law so I may be speaking out of turn. But I have no doubt that I will be correctly informed once I click submit.

If I understand correctly, bakers under the Cottage Food Law aren't inspected by the local health department, right? So will the health department continue to inspect existing permitted, licensed kitchens? If so, why?

How has this law affected established, permitted, licensed bakers in states where it has been passed?

115 replies
jason_kraft Posted 18 Apr 2012 , 3:58am
post #2 of

CFLs vary from state to state...in some states there are no inspections at all, while other states require a limited inspection for home-based businesses.

Existing or new businesses that operate out of commercial kitchens are not impacted by the CFL. All CFLs have some limitations, which may include not being able to hire additional employees, not earning more than a certain amount each year, not being able to sell wholesale, etc., so if you live in a CFL state and are successful with your business you will eventually need a commercial kitchen anyway if you want to expand.

Plus in some areas zoning laws or HOAs may prohibit home-based businesses. If you live in one of those areas and you can't get an exemption, you can't legally run a home-based bakery even if your state has a CFL.

cakelady2266 Posted 18 Apr 2012 , 4:36am
post #3 of

I have a licensed, permitted, inspected commercial kitchen so I not waiting on it to pass to start a business. The CFL is being brought up in Alabama legislature now.

I was just wondering how something like that works. From my quick overview, it kinda feels like this "under the CFL, a home baker can bake and sell til her hearts content without those pesky inspectors coming around, while those permitted kitchens will still be under the health departments microscope."

Jason, you and I had a discussion a while back about home bakers and business. Now I find myself looking at it in another way. I'm not knocking home bakers mind you but it just feels different with a state's legislature signing off on it.

jason_kraft Posted 18 Apr 2012 , 5:17am
post #4 of
Quote:
Originally Posted by cakelady2266

I was just wondering how something like that works. From my quick overview, it kinda feels like this "under the CFL, a home baker can bake and sell til her hearts content without those pesky inspectors coming around, while those permitted kitchens will still be under the health departments microscope."



That's pretty much how it works, and an influx of new legal home bakeries can cause challenges for existing businesses. The best thing you can do is press your competitive advantages, since you will be able to do things CFL bakers can't. Just the fact that your kitchen is inspected by the health dept and CFL kitchens aren't can be highlighted and may be a selling point to some customers.

If you are renting your kitchen by the hour, another option would be to take advantage of the cost savings of baking from home under a CFL by setting up a separate business entity that could handle the simpler orders (you would need to be careful to keep the two businesses separate). This would give you two tiers of offerings so you could compete with home bakeries for midmarket customers while still giving you the option of selling wholesale, using potentially hazardous ingredients, etc. for orders routed to your commercial business.

traci_doodle Posted 18 Apr 2012 , 12:36pm
post #5 of

Jason_kraft hit on this briefly, but most CFLs don't allow the production/sale of potentially hazardous foods, which I think is a huge advantage to those with commercial kitchens. That severely limits the kinds of frostings and fillings a CFL baker can use--no fresh fruit, no meringue buttercreams (right?), most versions of cream cheese frosting, and anything else that would require refrigeration. Even though I am all for CFLs, I can totally see why someone like you, who has invested the money to go commercial, would be concerned and perhaps think it unfair.

smallnmighty Posted 18 Apr 2012 , 12:54pm
post #6 of

I was very suprised by the lax in Indiana's cottage food law. I would have assumed they wanted to inspect my kitchen and they do not, in fact I do not even have to register with anybody. I think it should be a little more watched, and I am a home baker. I also run a home childcare and my kitchen is inspected 3 times a year for that. I just dont understand the difference. Most people do not understand the difference between a clean counter and a sanitized counter so in my personal opinion there should be a little more control.

ncsmorris Posted 18 Apr 2012 , 1:27pm
post #7 of

I operate my business under a CFL so I will tell you about MY experience. My kitchen was inspected my the Dept of Agriculture, I still need business licenses and appropriate insurance. It's true that there aren't random inspections (how would they even know if I'm home? I don't have business hours). It's cheaper because I don't pay rent. There are downsides/limitations though. No refrigerated items, Im allowed to have only one employee, plus I'm limited my the size of a regular home kitchen (granted if I had a basement or something to convert, that would be different). This works for me for now because this is more or less a hobby that I want to be paid for at this point (I still have a 40-hr/wk job). As I grow and expand my business, I will outgrow these restraints VERY quickly.

jgifford Posted 18 Apr 2012 , 1:29pm
post #8 of

I think the big push for CFLs lately is to encourage small businesses. "Let's make it as easy as possible" seems to be the attitude. There is currently a glut of bakers in Texas since our CFL went into effect in September, and yes, I am one of them. BUT I have a restaurant background and I do understand the difference between clean and sanitized. I'm also a Master Bookkeeper and have a strong accounting and business background.

I think you'll find that the ones who don't know what they're doing will be weeded out quickly and the ones who do will go on to open commercial shops. Our income limit in Texas is $50K. When I get close to that, I'll be opening a shop.

smbegg Posted 18 Apr 2012 , 1:40pm
post #9 of

I am in Texas and am operating under our CFL. The spirit of the law is a buyer-be-ware and the health department does not inspect, however there IS record kept of any complaints.

The law IS limiting:
*I cannot produce anything that needs refrigeration (which is VERY limiting on icing type, fillings, cheesecakes, ect)
*I HAVE to place a sticker on EVERYTHING I make that says Made in an uninspected home kitchen.
*All transactions need to occur in my home. I cannot take online orders. The order needs to either be picked up in my home, the customer needs to visit the home for consultation or the payment needs to be mailed to my home. This means that I cannot sell to businesses or organization that will sell my products.

So there are many limitations (including the income limit) that give the Licensed kitchen a bigger advantage. Just as there are things that give me an advantage under the CFL. The spirit of the law is to let people legally bake from home to establish a business in a small proportion (very limiting to how much I can produce when it is just me!)

Stephanie

cakegrandma Posted 18 Apr 2012 , 2:08pm

The funny thing about the CFL's is that most of the people that make cakes are not even aware of them. I teach cake decorating and I have probably 60% of the class say they want to be able to sell their items when the are able to really put together a nice cake. I used to tell them what they needed to do, insurance, sanitation and food safety course, but they seemed to skip over all that when they talked about selling again. I finally quit saying anything and let them go on with their dream but I sure wish their buyers luck so they do not get food poisoning due to the fact that the seller was ignorant of the rules or just did not care to pursue the information. thumbsdown.gifthumbsdown.gif

PieceofCakeAZ Posted 18 Apr 2012 , 7:07pm
Quote:
Originally Posted by traci_doodle

Jason_kraft hit on this briefly, but most CFLs don't allow the production/sale of potentially hazardous foods, which I think is a huge advantage to those with commercial kitchens. That severely limits the kinds of frostings and fillings a CFL baker can use--no fresh fruit, no meringue buttercreams (right?), most versions of cream cheese frosting, and anything else that would require refrigeration.




While technically some of those items might not be allowed under a CFL, there's no inspection whatsoever(at least in AZ), so while the rules say one thing, the lack of enforcement says you can do whatever you want.

jgifford Posted 18 Apr 2012 , 7:09pm

But some of us are going to obey the law even if no one comes around to check up on us. Call me a prude, but there are some things you just don't do.

jason_kraft Posted 18 Apr 2012 , 7:15pm
Quote:
Originally Posted by PieceofCakeAZ

While technically some of those items might not be allowed under a CFL, there's no inspection whatsoever(at least in AZ), so while the rules say one thing, the lack of enforcement says you can do whatever you want.



A lack of enforcement on the part of the health department does not necessarily mean a lack of enforcement on the part of competitors. In every CFL the health dept does have the authority to inspect the premises if there is a complaint.

PieceofCakeAZ Posted 18 Apr 2012 , 7:15pm
Quote:
Originally Posted by jgifford

But some of us are going to obey the law even if no one comes around to check up on us. Call me a prude, but there are some things you just don't do.




While that is true for some, many will think "I'm not going to lose this order and I'm going to refrigerate it anyway, so what's the difference if it's kept at 38* in my fridge or 38* in a commercial fridge". Those that were doing business out of their homes before it was legal aren't changing their recipes and revamping everything because now they are legal, with minimal restrictions. Of course YMMV.

PieceofCakeAZ Posted 18 Apr 2012 , 7:18pm
Quote:
Originally Posted by jason_kraft

Quote:
Originally Posted by PieceofCakeAZ

While technically some of those items might not be allowed under a CFL, there's no inspection whatsoever(at least in AZ), so while the rules say one thing, the lack of enforcement says you can do whatever you want.


A lack of enforcement on the part of the health department does not necessarily mean a lack of enforcement on the part of competitors. In every CFL the health dept does have the authority to inspect the premises if there is a complaint.




As a competitor, how do you know what I am putting in my fillings? You don't.

jason_kraft Posted 18 Apr 2012 , 7:21pm

Well, if you are a home-based bakery and you're advertising that you offer cream cheese filling and cheesecakes, that's pretty much a dead giveaway. icon_wink.gif

jgifford Posted 18 Apr 2012 , 7:23pm

If the HD sets foot on my property, they have to have a court order so it would have to be one doozy of a complaint.

jason_kraft Posted 18 Apr 2012 , 7:24pm
Quote:
Originally Posted by ncsmorris

It's true that there aren't random inspections (how would they even know if I'm home? I don't have business hours).



FYI, when you operate out of a rented kitchen with on storefront you probably won't have to deal with random inspections. In Santa Clara County the inspector always contacted us ahead of time to set up an appointment for the inspection so we would be there. Things might be different in other areas or if you have a retail shop with regular posted hours.

PieceofCakeAZ Posted 18 Apr 2012 , 7:26pm
Quote:
Originally Posted by jason_kraft

Well, if you are a home-based bakery and you're advertising that you offer cream cheese filling and cheesecakes, that's pretty much a dead giveaway. icon_wink.gif




If the inspector calls, I say "we buy the Brill cream cheese buckets, which requires no refrigeration. And If I am really crafty, I say we make our cheesecake with Tofutti so it's dairy free. icon_wink.gif

jason_kraft Posted 18 Apr 2012 , 7:35pm
Quote:
Originally Posted by jgifford

If the HD sets foot on my property, they have to have a court order so it would have to be one doozy of a complaint.



It is certainly your option to deny entry, but most CFLs allow the HD to get a search warrant to inspect your property if there is a complaint, and some say that the HD can bill you for the added expense.

jason_kraft Posted 18 Apr 2012 , 7:38pm
Quote:
Originally Posted by PieceofCakeAZ

Quote:
Originally Posted by jason_kraft

Well, if you are a home-based bakery and you're advertising that you offer cream cheese filling and cheesecakes, that's pretty much a dead giveaway. icon_wink.gif



If the inspector calls, I say "we buy the Brill cream cheese buckets, which requires no refrigeration. And If I am really crafty, I say we make our cheesecake with Tofutti so it's dairy free. icon_wink.gif



You could say that, but that's fraud, and if the inspection involves sampling your product you would be in pretty big trouble. FYI Tofutti does require refrigeration as well.

jgifford Posted 18 Apr 2012 , 7:39pm
Quote:
Originally Posted by jason_kraft

Quote:
Originally Posted by jgifford

If the HD sets foot on my property, they have to have a court order so it would have to be one doozy of a complaint.


It is certainly your option to deny entry, but most CFLs allow the HD to get a search warrant to inspect your property if there is a complaint, and some say that the HD can bill you for the added expense.




Under the Texas CFL, the HD is not allowed to inspect your kitchen. They are required to "keep a log" of complaints if any are made against you. So if they felt it was necessary to get a court order to inspect, it would be because of the quantity and severity of complaints, with the end goal of shutting you down completely.

PieceofCakeAZ Posted 18 Apr 2012 , 7:50pm
Quote:
Originally Posted by jason_kraft

Quote:
Originally Posted by PieceofCakeAZ

Quote:
Originally Posted by jason_kraft

Well, if you are a home-based bakery and you're advertising that you offer cream cheese filling and cheesecakes, that's pretty much a dead giveaway. icon_wink.gif



If the inspector calls, I say "we buy the Brill cream cheese buckets, which requires no refrigeration. And If I am really crafty, I say we make our cheesecake with Tofutti so it's dairy free. icon_wink.gif


You could say that, but that's fraud, and if the inspection involves sampling your product you would be in pretty big trouble. FYI Tofutti does require refrigeration as well.




There's only an inspection if there is a complaint.

If someone has been operating from home before it was legal, they are unlikely to change anything and if caught it doesn't seem outside the realm of probability that they would say "our cream cheese frosting doesn't require refrigeration" if asked. Sure it's fraud, but baking illegally from home is a gateway crime. icon_wink.gif

FYI Toffuti is disgusting. icon_wink.gif I only made that joke since you joked about cheesecakes, clearly if someone is advertising cheesecakes, they are nuts. But, as you know, there are a number if commercially available cream cheese frostings that don't require refrigeration and taste halfway decent.

jason_kraft Posted 18 Apr 2012 , 7:54pm

TX Section 437.0192 seems self-contradictory to me, it says "A local health department may not regulate the production of food at a cottage food production operation", while at the same time saying that "Each local health department and the department shall maintain a record of a complaint made by a person against a cottage food production operation." One would assume that the health dept does in fact have authority to regulate in the event of a complaint or can notify a state-level dept which has that power, otherwise what's the point of recording complaints?

jgifford Posted 18 Apr 2012 , 8:16pm
Quote:
Originally Posted by jason_kraft

TX Section 437.0192 seems self-contradictory to me, it says "A local health department may not regulate the production of food at a cottage food production operation", while at the same time saying that "Each local health department and the department shall maintain a record of a complaint made by a person against a cottage food production operation." One would assume that the health dept does in fact have authority to regulate in the event of a complaint or can notify a state-level dept which has that power, otherwise what's the point of recording complaints?




On kelleym's website, the overview of the CFL states that the HD keeps a log of complaints so a customer can check to see if their "cake lady" has any complaints prior to ordering from her. I'm sure that any and all facets of the law will be challenged and clarified in the future. There would have to be some point where the HD can step in. It stands to reason that there's going to be someone (or several someones) who will make customers very ill and there must be a way to stop them.

kelleym Posted 18 Apr 2012 , 8:43pm
Quote:
Originally Posted by jgifford

Quote:
Originally Posted by jason_kraft

TX Section 437.0192 seems self-contradictory to me, it says "A local health department may not regulate the production of food at a cottage food production operation", while at the same time saying that "Each local health department and the department shall maintain a record of a complaint made by a person against a cottage food production operation." One would assume that the health dept does in fact have authority to regulate in the event of a complaint or can notify a state-level dept which has that power, otherwise what's the point of recording complaints?



On kelleym's website, the overview of the CFL states that the HD keeps a log of complaints so a customer can check to see if their "cake lady" has any complaints prior to ordering from her. I'm sure that any and all facets of the law will be challenged and clarified in the future. There would have to be some point where the HD can step in. It stands to reason that there's going to be someone (or several someones) who will make customers very ill and there must be a way to stop them.



Oh I was trying so hard to stay out of this.

Why does it "stand to reason" that someone is going to become ill? The only foods allowed under SB 81 are a small subset of non-potentially hazardous foods; foods that are not capable of supporting the growth of dangerous micro-organisms. I haven't heard of any terrible stories from other states that have had this law on the books for many years?

If someone is made sick, it's likely going to be through a potentially hazardous food, and if a home producer is selling potentially hazardous food, they no longer have the protection of the cottage food umbrella; they are an illegal food establishment, and the HD would proceed as they would with any illegal establishment.

And Jason, the law was written by a lawyer in accordance with accepted canons of statutory construction. If you have concerns or questions about it, I suggest retaining a lawyer in California to help you.

jason_kraft Posted 18 Apr 2012 , 8:49pm
Quote:
Originally Posted by kelleym

If someone is made sick, it's likely going to be through a potentially hazardous food, and if a home producer is selling potentially hazardous food, they no longer have the protection of the cottage food umbrella; they are an illegal food establishment, and the HD would proceed as they would with any illegal establishment.



That's a good point...the law does not make it clear when the CFL exemption disappears though. Can the HD make that decision unilaterally when they get one complaint? It seems that to verify the complaint they would have to inspect, which they cannot do according to the CFL. Most other CFLs allow for product sampling to confirm complaints, although I suppose the HD could simply place an order to get a sample.

ChristineCMC Posted 18 Apr 2012 , 8:53pm

As someone who lives in a state that is patiently waiting for a CFL bill to pass, I feel the need to chime in. Obviously, since we do not have a law yet I can no speak to specifics. I do not know if my kitchen will need to be inspected, food safetly classes that will need to be taken or any other regulations. But knowing my state there will be many hoops that I will need to jump through to sell my baked goods and many limitations too.

First of all, I will say that I don't see how me selling out of my kitchen will impact the local bakeries as they do not currently offer the types of cakes I enjoy making (sculpted cakes, fondant, ect). Also, I'm sure I will be limited on what I can offer. There will be many I'm sure who would not feel comfortable buying something baked in someone's home and would prefer a actual storefront. Although, I will say (from working in restaurants) that just because a kitchen is inspected and "legal" does not necessarily mean it is clean. Ever see the show Kitchen Nightmares? And don't assume that someone who bakes from home doesn't know the difference between clean and sanitized.

Also, even if I wanted to open a storefront shop, it would not be possible. I do not have the money to invest nor would I want to invest the time in that type of endeavor. That does not mean I would not want to be able to pursue my joy of creating cakes for those outside of my family. I think most people who operate under the CFL's do so to either add a little income to their family budget or are working towards opening a storefront shop.

Maybe, I'm being naive but I really think there is enough cake to go around.

kelleym Posted 18 Apr 2012 , 8:58pm
Quote:
Originally Posted by jason_kraft

Quote:
Originally Posted by kelleym

If someone is made sick, it's likely going to be through a potentially hazardous food, and if a home producer is selling potentially hazardous food, they no longer have the protection of the cottage food umbrella; they are an illegal food establishment, and the HD would proceed as they would with any illegal establishment.


That's a good point...the law does not make it clear when the CFL exemption disappears though. Can the HD make that decision unilaterally when they get one complaint? It seems that to verify the complaint they would have to inspect, which they cannot do according to the CFL. Most other CFLs allow for product sampling to confirm complaints, although I suppose the HD could simply place an order to get a sample.



The law defines what a cottage food producer is, and what a cottage food producer sells. If you're not following the law, you're not a cottage food producer.

jason_kraft Posted 18 Apr 2012 , 9:04pm
Quote:
Originally Posted by kelleym

The law defines what a cottage food producer is, and what a cottage food producer sells. If you're not following the law, you're not a cottage food producer.



Yes, but who determines whether or not a producer is following the law, and what is the process for making that determination?

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