Minnesota Cottage Foods

Introduction

Jane Astramecki and Mara Heck bake tasty treats with pride and passion in their home kitchens.  Jane started her home-baking business, Jane Dough Bakery, after sustaining a serious injury that made work outside the home impractical.  Selling her delicious, homemade scones, cookies, cakes and jams was a way to earn money for her family while staying home with her kids.  Mara—a ribbon winner at the Minnesota State Fair for the past four years—has a day job but would love to supplement her income through baking and eventually turn her baking into a fulltime business.

But the state of Minnesota has little tolerance for such home-crafted entrepreneurship.  Although the state recognizes that the types of foods Jane and Mara make are perfectly safe for production in a home kitchen, it nevertheless severely restricts the sale of such foods.  Specifically, sales may only occur at a farmers’ market or community event, and even then, entrepreneurs like Jane and Mara may only sell $5,000 in gross receipts annually.

Minnesota’s restrictions on cottage food sales make no sense.  A cookie is a cookie.  If it is safe to sell it from a farmers’ market, it is safe to sell it from a shop or a food stand.  And that same cookie doesn’t all of sudden become unsafe once a certain dollar threshold is crossed.

Instead of restricting where and how much home bakers can sell, Minnesota ought to encourage these hardworking entrepreneurs.  It should leave them free to build successful businesses out of their home kitchens.

Cottage Foods in Minnesota

Like nearly every other state in the nation,[i] Minnesota has a “cottage food” law—a law allowing the sale of certain inherently-safe foods made in a home, rather than in a commercial, kitchen.[ii]  These foods, defined by the government as “not potentially hazardous,”[iii] include:  bakery products, such as bread, cakes, cookies, fruit pies, and rolls;[iv] and certain canned (jarred) items, such as jams, pickles, salsas, and naturally fermented foods (e.g., sauerkraut and kimchi).[v]

But there are a couple of very significant catches that make Minnesota’s cottage food law one of the most restrictive in the nation and make it difficult, if not impossible, to launch a successful cottage food business.  First, Minnesota severely restricts where cottage food entrepreneurs may sell their products.  Specifically, they may only sell them at a farmers’ market or community event.[vi]  That means sales from the home, in a gourmet food shop, at a jobsite or over the internet are prohibited.  So if you know a good home baker in Minnesota and would like to have her make your wedding cake, you’re out of luck—unless you make a pit stop at the farmers’ market on your way to the chapel.

Second, even too much success selling at a farmers’ market or community event is illegal.  That’s because Minnesota caps the annual sales of cottage food producers at $5,000[vii]—just $96 per week.  The cap applies to all products in the aggregate, not on a per-product basis.[viii]  And were that not bad enough, the cap is on gross receipts, not profits.[ix]  Because the cost of ingredients, the price of a stall at a farmers’ market, and other business-related expenses can easily surpass the $5,000 a cottage food producer is allowed to take in, an otherwise successful small business may be doomed for failure before it even gets off the ground.

Minnesota can learn from other states with cottage food laws.  Many states allow sales not only at farmers’ markets and community events, but also from the home, in restaurants, at stands, in retail stores, and over the Internet.[x]  As for annual sales, most states with cottage food laws have no sales cap at all,[xi] and those that do often allow tens of thousands of dollars annually.[xii]  For example, Texas allows up to $50,000 in annual gross income per year,[xiii] and California’s limit, which is currently set at $35,000 in gross annual sales, will also reach $50,000 in 2015.[xiv]

What’s more, violating Minnesota’s cottage food restrictions comes at a heavy price:  a misdemeanor conviction punishable by up to 90 days in jail or fines of $7,500 per violation.[xv]

If you have a recipe and an oven, you should be able to start a business.  But Minnesota’s strict restrictions on cottage food producers make it difficult, if not impossible, to earn an honest living as a home baker.

Cottage Food Entrepreneurs Jane Astramecki and Mara Heck

Jane Astramecki and Mara Heck know all too well how uninviting Minnesota is for cottage food producers.  Both of them are accomplished bakers, but neither has the money or luxury of operating out of a commercial kitchen.  Consequently, each has operated out of her home kitchen, and that is where their troubles begin.

Jane is a mother of six from Farmington.  She is also a graduate of Le Cordon Bleu with a certificate in pâtisserie and baking.  But for two reasons, working in a bakery or commercial kitchen is not an option for Jane.  First, she wants to be home with her children.  Second, she suffered a serious accident several years ago that required three back surgeries and resulted in considerable nerve damage in her leg.  Consequently, standing for long periods of time is extremely difficult and she needs to lay down several times a day to alleviate the pain.

But Jane is trying to create a successful business despite her injuries.  She loves baking and wants to contribute to her family’s income.  So in 2010, she launched Jane Dough Bakery, selling homemade baked goods and jams at the Eagan and Farmington farmers’ markets.

Market customers love Jane’s products and not a week goes by when she doesn’t get a request from one of them wanting to order customized treats for some upcoming work event or family occasion.  But Jane has to say “no” to these requests because fulfilling them would mean running afoul of the restriction prohibiting sales anywhere other than a farmers’ market or community event . . . and that would mean jail time and steep fines.  For fear of the same penalties, Jane also has to keep a watchful eye on how much she sells, knowing that when the register hits $5,000 for the year, she’s got to shut down her business until the following January or else face the wrath of the Minnesota Department of Agriculture.

When not running Jane Dough Bakery, Jane teaches cake decorating classes at a Michael’s craft store near her home in Farmington.  There, too, she gets constant requests from students interested in buying custom-made cakes.  But, again, she has to tell them “No.”

Mara Heck finds herself in a similarly difficult spot.  Mara is a 31 year-old with a day job, but her true passion is for baking.  That passion has paid off:  Each year for the past four, she has walked away with a ribbon for at least one of her entries at the Minnesota State Fair.[xvi]

Mara loves sharing her treats with family and friends, both old and new.  Not surprisingly, she gets a lot of requests from potential customers interested in purchasing them.  Some people just want to buy a few cookies, while others want large, custom orders for events—everything from political fundraisers to a monthly ladies’ night at a vintage clothing store.  But Mara can only fill these orders upon pain of fines and jail time.

Mara has considered parlaying her passion for baking into a fulltime business.  But given Minnesota’s cottage food restrictions, she cannot do so.

Minnesota ought to be welcoming entrepreneurs like Jane Astramecki and Mara Heck.  Instead, it forces them to choose between compliance with utterly arbitrary and irrational restrictions on their ability to earn a living, on one hand, and jail time, on the other.

Minnesota’s Heavy-Handed Enforcement

Jane and Mara are hardly alone in their run-ins with Minnesota’s restrictive cottage food provisions.  The state takes enforcement seriously, and many a home baker’s dream of running a successful business has been thwarted by the restrictions.[xvii]  For example, the state ordered the owner of You Betcha Cupcake in Rochester to “discontinue baking and selling cupcakes from an unapproved home kitchen” after pictures of her cupcakes were featured in Rochester Magazine.[xviii]  It has similarly scoured such sources as Facebook for evidence of illegal home baking[xix] and, in one instance, investigated a home baker in Winona after Mon Petit Cupcake, an upscale bakery that sells “French artisan styled cupcakes,”[xx] complained about her.[xxi]

Fed up with the state’s aggressive enforcement of its arbitrary restrictions, a group of home bakers began petitioning legislators for reform of Minnesota’s cottage food law.[xxii]  In the 2013 legislative session, bills were introduced to increase the sales cap to $50,000 and allow home bakers to sell from the home.[xxiii]  The bills, however, went nowhere.

The Minnesota Constitution’s Protection of Cottage Food Entrepreneurs

Fortunately for Jane, Mara and the many other cottage food producers in Minnesota, the Due Process and Equal Protection Clauses of the Minnesota Constitution protect the right of entrepreneurs to earn an honest living.[xxiv]  When the government regulates an occupation in the Land of 10,000 Lakes, the Minnesota Constitution requires that the law be logical—not arbitrary or unreasonable—and that there be an “evident connection,” grounded in fact, between the law and the governmental purpose behind it. [xxv]  Minnesota’s cottage food restrictions do not fit that bill.

Limiting cottage food sales to farmers’ markets and community events—and to $5,000 in annual receipts—is utterly arbitrary and has no connection to any supposed health or safety justification the state may offer.  In fact, the reason Minnesota allows cottage food sales at all is because such foods are “not potentially hazardous.”  In other words, sales of cottage foods are safe because of the nature of the foods themselves—not because of the location where they are sold.  If it is safe to sell them at a farmers’ market or community event, it is safe to sell them at a jobsite, in a shop, or on-line.  And they do not magically become unsafe once some arbitrary dollar threshold is met.

Ostensibly, the state allows cottage food sales so that entrepreneurs like Jane and Mara can earn an honest living making inherently safe foods in their homes.  But the location restriction and sales cap undercut that goal completely.  The only purpose the restrictions truly serve appears to be protecting established bakeries from competition by ensuring that home baking remains little more than a hobby—not a profitable business.

Accordingly, Jane and Mara will ask the court to strike down Minnesota’s cottage restrictions so that they and other cottage food producers can be free to sell however many treats they want, from wherever they want, to whomever they want.

The Institute for Justice Team

The lead attorney in this case is Institute for Justice Attorney Katelynn McBride.[xxvi]  She is joined by IJ Senior Attorney Michael Bindas,[xxvii] who is leading IJ’s National Food Freedom Initiative.

Founded in 1991, IJ is the national law firm for liberty.  It advances a rule of law under which individuals can control their destinies as free and responsible members of society.  To that end, IJ litigates to secure economic liberty, school choice, private property rights, freedom of speech and other vital individual liberties, and to restore constitutional limits on the power of government.

IJ’s National Food Freedom Initiative

Jane Astramecki and Mara Heck are part of a nationwide movement of small-scale food producers and consumers who are tired of the government making their food choices for them—of government dictating what foods they can grow, produce, or eat.   To end such governmental meddling in our food choices, IJ is today launching its National Food Freedom Initiative:   A nationwide campaign that will bring property rights, economic liberty and free speech challenges to laws that interfere with the ability of Americans to produce, market, procure, and consume the foods of their choice.[xxviii]  In addition to Jane and Mara’s economic liberty challenge to Minnesota’s cottage food restrictions, IJ is filing two other cases today to inaugurate the initiative.

The first is a free speech challenge to Oregon’s ban on the advertisement of raw —or unpasteurized—milk.  It is legal for small farmers in Oregon to sell raw milk, but they are flatly forbidden from advertising it.   IJ is challenging this ban under the First Amendment on behalf of farmer Christine Anderson of Cast Iron Farm.  Learn more about Christine’s case at:  www.ij.org/ORMilk.

The second is a property rights challenge to a ban on front-yard vegetable gardens in Miami Shores, Fla.   IJ is challenging that ban on behalf of Hermine Ricketts and Tom Carroll, a married couple who grew vegetables on their own property for their own consumption for nearly two decades before Miami Shores officials ordered them to tear up the very source of their sustenance.  Learn more about their case at:  www.ij.org/FlVeggies.

Through these and future cases, IJ’s National Food Freedom Initiative will end unreasonable and intrusive governmental interference with our food choices and usher in real food freedom for all Americans.

For more information, contact:

Shira RawlinsonAssistant Director of CommunicationsInstitute for Justice901 N.  Glebe Road, Suite 900Arlington, VA  22203(703) 682-9320, ext.  229

[email protected]

[i] See Cottage Food Laws by State, cottagefoods.org, http://www.cottagefoods.org/laws/ (last visited Oct. 30, 2013).

[ii] See Minn. Stat. § 28A.15, subdivs. 9, 10; see also Minn. R. 4626.0020 1-201.10, subp. 35(C)(1).

[iii] Minn. Stat. § 28A.15, subdiv. 9; see also Minn. R. 4626.0020 1-201.10, subp. 62(C)(3).

[iv] Minn. Stat. § 28A.15, subdivs. 9; see also Dairy and Food Inspection Div., Minn. Dep’t of Agric., MDA-DFID 28A Exclusion Guidance Documents (on file with Institute for Justice).

[v] Minn. Stat. § 28A.15, subdiv. 10(a)(1); see also Minn. Dep’t of Agric., Pickle Bill Fact Sheet, http://www.mda.state.mn.us/food/safety/minn-food-code-fact-sheets/pickle-bill.aspx (last visited Oct. 30, 2013).  These items must have a pH value at or below 4.6—the point at which a food is deemed acidified.  See Minn. R. 4626.0020 1-201.10, subp. 62(C)(3).

[vi] Minn. Stat. § 28A.15, subdivs. 9, 10(a)(3).  The Department of Agriculture interprets a “community event” as a “public gathering sponsored or hosted by a town, county, city, or municipality or religious, charitable, or educational organization where food is sold,” provided the event (1) is “open to the public” and (2) “is not intended for profit,” but rather “to promote the community as a whole.”  Dairy and Food Inspection Div., Minn.  Dep’t of Agric., MDA-DFID 28A Exclusion Guidance Documents (on file with Institute for Justice).

[vii] Minn. Stat. § 28A.15, subdivs. 9, 10(a).

[viii] See Dairy and Food Inspection Div., Minn.  Dep’t of Agric., MDA-DFID 28A Exclusion Guidance Documents (on file with Institute for Justice).

[ix] Minn. Stat. § 28A.15, subdivs. 9, 10(a).

[x] These states include Arizona, California, Iowa, Maine, Massachusetts, North Carolina, Ohio, Oregon, and Pennsylvania.  See Cottage Food Laws by State, cottagefoods.org, http://www.cottagefoods.org/laws/ (last visited Oct. 30, 2013).

[xi] These states include Alabama, Arizona, Arkansas, Georgia, Indiana, Iowa, Maine, Massachusetts, Nebraska, New Mexico, New York, North Carolina, Ohio, Oregon, Pennsylvania, South Dakota, Tennessee, Utah, Vermont, Virginia, West Virginia, and Wyoming.  See Cottage Food Laws by State, cottagefoods.org, http://www.cottagefoods.org/laws/ (last visited Oct. 30, 2013).

[xii] The only other state with a sales cap as low as Minnesota’s is Wisconsin.  See Wis. Stat. § 97.29(2)(b)(2); see also Cottage Food Laws by State, cottagefoods.org, http://www.cottagefoods.org/laws/ (last visited Oct. 30, 2013).

[xiii] Tex. Admin. Code tit. 25, § 229.661(b)(2)(B).

[xiv] Cal. Health & Safety Code § 113758(a).

[xv] See Minn. Stat. § 34A.04, subdiv. 1(c); id. § 34A.09, § 34A.10; id. § 609.03, subdiv. 3.

[xvi] See, e.g., Gluten Free Baking Contest Winners at the MN State Fair, The Savvy Celiac, http://www.thesavvyceliac.com/2011/09/04/gluten-free-baking-contest-winners-at-the-mn-state-fair/ (last visited Oct. 30, 2013).

[xvii] See generally http://mncottagefoodlaw.wordpress.com/; MN Cottage Food Law, Facebook, https://www.facebook.com/pages/MN-Cottage-Food-Law/208021329240966?ref=ts&;fref=ts.

[xviii] Dairy and Food Inspection Div., Minn. Dep’t of Agric., Complaint Report No. 027936 (Dec. 20, 2011) (on file with Institute for Justice).

[xix] Complaint reports are on file with the Institute for Justice.

[xx] See About Jennifer, Mon Petit Cupcake, http://www.monpetitcupcake.com/id71.html (last visited Oct. 30, 2013).

[xxi] See Dairy and Food Inspection Div., Minn. Dep’t of Agric., Complaint Report No. 027774 (May 3, 2011) (on file with Institute for Justice).

[xxii] See S. Erickson, Minnesota State Legislators:   Revise the MN Cottage Food Law for Home Bakers, Change.org,  http://www.change.org/petitions/minnesota-state-legislators-revise-the-mn-cottage-food-law-for-home-bakers?utm_campaign=twitter_link&;utm_medium=twitter&utm_source=share_petition (last visited Oct. 30, 2013).

[xxiii] See SF 1188, 83rd Leg. (Minn.  2013); HF 1559, 83rd Leg. (Minn. 2013).

[xxiv] See, e.g., City of St. Paul v. Dalsin, 71 N.W.2d 855 (Minn. 1955) (holding unconstitutional, under the Due Process Clause, an arbitrary licensing requirement for roofers); State v. Stewart, 529 N.W.2d 493 (Minn. App. 1995) (holding unconstitutional, under the Equal Protection Clause, an ordinance prohibiting unlicensed pipe cutting and fabrication on job sites).

[xxv] Stewart, 529 N.W.2d at 497; Healthstar Home Health, Inc. v. Jesson, 827 N.W.2d 444, 449-50 (Minn. App. 2012) (citation omitted).

[xxvi] https://ij.org/staff/kmcbride.

[xxvii] https://ij.org/staff/mbindas.

[xxviii] For more information on IJ’s National Food Freedom Initiative, please visit our website at www.ij.org/FoodFreedom.