Institute for Justice · January 30, 2020

Lincoln, Neb.—Less than a year after Nebraska Gov. Pete Ricketts signed legislation allowing Nebraskans to sell safe homemade foods, the Lancaster County Health Department introduced a bill that, if passed, would be a major step back for food entrepreneurs and the “buy local” movement. The Institute for Justice (IJ), a national advocate for home-based entrepreneurs, is warning the Lincoln City Council that the proposal would violate Nebraskans’ constitutional
rights while doing nothing to improve public health or safety.

With the passage of LB304 in May 2019, Nebraskans were soon allowed to sell homemade foods like baked goods, jams, popcorn, candy and dried pasta from their homes and online—similar to what is already allowed in 48 other states and the District of Columbia. The proposed ordinance would undermine these new freedoms by imposing an additional, unnecessary and unauthorized local permit requirement and by giving the Lancaster County Health Director “the authority to inspect at any reasonable time” the homes of cottage food producers “as frequently as necessary.”

“The proposed ordinance imposes requirements that run contrary to state law and cottage food producers’ constitutional rights,” IJ attorney Joshua Windham said. “Requiring an additional local permit to sell cottage foods flies in the face of LB304, and requiring food entrepreneurs to submit to random warrantless inspections of their homes may raise additional Fourth Amendment concerns.”

Nebraska law requires only that cottage foods indicate the food was prepared in a home kitchen, the name and address of the producer and that it may contain allergens.

“Homemade foods have been safely and legally sold for years. Putting useless new hurdles in front of homemade food producers would mean fewer economic opportunities for countless families and fewer local food options for consumers,” said Jennifer McDonald, IJ senior research analyst and author of Flour Power: How Cottage Food Entrepreneurs Are Using Their Home Kitchens to Become Their Own Bosses.

Lincoln resident and baker Cindy Harper criticized the ordinance proposal as well and warned that it could discourage other residents from selling their homemade goods.

“I think for a family trying to balance life and starting a business, these types of regulations are intimidating. For someone who doesn’t have a food service background, it’s possible they may see them as a barrier to entry that they cannot get past,” she said.