Institute for Justice · August 11, 2020

Albuquerque, N.M.—The COVID-19 pandemic has crippled the economy of every city in America, and Albuquerque is no exception. With unemployment up and consumer activity down, Americans need to have every option available to support themselves and their families. Yet Albuquerque does not allow the sale of safe, shelf-stable foods like baked goods made at home—foods that the rest of New Mexico and 48 states allow. Albuquerque’s ban on all homemade or “cottage foods” sales isn’t just wrong: it’s unconstitutional. The Institute for Justice (IJ), a national advocate for home-based entrepreneurs, is warning the city that it must amend its unconstitutional ban.

“Albuquerque’s ban on selling homemade cakes, cookies and other safe foods is unfair and unconstitutional,” said IJ Senior Attorney Erica Smith. “People should be able to freely buy and sell homemade foods without having to worry about the cookie police.”

The New Mexico Environment Department website informs residents “wanting to operate a home-based food processing operation” that they “must first obtain a permit from NMED before offering their non-potentially hazardous food products to the public.” The page then notes that “Residents of the City of Albuquerque are not eligible to receive a permit for a home-based food processing operation permit. The city is outside of NMED’s jurisdiction, and similar regulations have not been adopted by the City of Albuquerque.” IJ further received confirmation from the city that it bans the sale of all homemade foods.

Should Albuquerque lift its ban, it would create dozens, perhaps even hundreds of small businesses. After IJ sued, Minnesota eased its restrictions on cottage food sales in 2015, leading 3,000 cottage food producers to register with the state in just two years. Texas saw similar development after it expanded its cottage food laws. Albuquerque could similarly benefit from lifting its restrictions.

In 2017, IJ authored the nation’s first comprehensive study of cottage food businesses, which showed that cottage food businesses serve as an important path to entrepreneurship for their owners, who are often lower-income women. Even a small amount of extra income from a cottage food business can be helpful to lower-income Albuquerque households struggling during the pandemic.

IJ has won constitutional challenges to Wisconsin’s ban on the sale of home-baked goods and to Minnesota’s restrictions on the right to sell home-baked and home‑canned goods. IJ has also helped pass laws expanding the sale of homemade foods in several states across the country, including in Kentucky, Maryland, West Virginia, Nebraska, Wyoming, and D.C.