Texas cottage foods vendors fight against overly restrictive regulations
Never underestimate people who bake.
Anyone who can produce a tasty gluten-free pie crust is not to be trifled with, as state lawmakers, public officials and the Department of State Health Services have discovered during the long battle about whether and how Texans should be able to sell baked goods, jams and other cottage foods out of their homes.
The fight started back in 2005, when Cedar Park baker Kelley Masters started making cakes for friends, family and her church. After getting numerous requests for her baked goods, she decided she might start selling them.
She did everything by the book, checking in with the Williamson County Health Department, where she was told that they don't inspect home kitchens and that she would have to rent space in a commercial kitchen.
Masters rented space at a restaurant but found that the cleanliness of the health department-inspected kitchen wasn't up to her standards.
"It was horrible," she said. "It was so dirty that I didn't want to sell the cakes that I made there. I called the Health Department and found out they scored really well."
Masters started a letter-writing campaign and circulated petitions to get a cottage food law, which several other states have, passed in Texas. She didn't get so much as a form letter response, she said.
When the economy crashed in 2008, Masters attacked the issue with renewed vigor, determined that her spatula-wielding cohorts should be able to supplement their incomes by selling cakes, pies and jams out of their homes.
Rep. Dan Gattis, R-Georgetown, put a bill forward during the 2009 session, but it failed to move forward. In 2011, the bill was sponsored by Sen. Jane Nelson, R-Flower Mound, and Rep. Lois Kolkhorst, R-Brenham. The Farm and Ranch Freedom Alliance, an organization found in 45 states that works to protect small-scale farmers and ranchers, along with its founder, Judith McGeary, stepped in to add some muscle to the push to pass SB 81.
"You don't need to regulate where it isn't needed," McGeary said. "It frees up limited government resources to focus on the areas where there is more risk. Why would we waste resources and inspectors on the local jam maker?"
When the law passed in May 2011, home bakers rejoiced, but their elation was short-lived. Shortly after the law went into effect in September, the Department of State Health Services, which was tasked with drawing up specific labeling requirements for the new cottage bakers, released rules that had many home bakers hotter than their ovens.
Among other recommendations, the health services department said that home bakers would have to include a full list of ingredients by weight with every cake, cookie or brownie.
"I was nervous about the proposed rules because they were absolutely ridiculous," said Beth Reyburn, owner of Never Enough Pie, an Austin-based home bakery that offers, among other things, Pie of the Month subscriptions. "Requiring a list of every single ingredient by weight is essentially giving away the recipe. That's my livelihood."
Even storefront bakeries aren't required to list ingredients by weight, home bakers said, and besides, have you ever tried to weigh a multi-tiered wedding cake?
The law contains a lot of common-sense provisions, home bakers said. It requires that the sale of baked goods, jams, jellies and herb mixes take place in the home of the cottage food operator. It allows the customers to self-inspect the kitchen, meet the producer and make sure conditions meet their approval. Cottage food operators can't sell over the Internet. They also can't sell highly perishable goods, such as cheesecakes or anything with meat in it. Cottage food producers can't resell through stores or restaurants, and they can't sell at farmers markets.
But those labeling rules caused more than a few home bakers to rethink their plans to sell cookies on the side.
"After I thought it was all over, that we had won, we had to mobilize again," said Masters, who runs Home Sweet Home Bakery out of her home.
Letters were written, petitions were circulated and a social media campaign was launched.
Just a few weeks ago, the state health services department backed off the proposed labeling plan. Cottage food operators will have to list the name of their business, address, any allergens like milk or nuts, and a statement that the product was made in a kitchen that was not inspected by the health department.
Home bakers are breathing a sigh of relief.
"The way the labeling laws turned out, they've been able to deal with concerns about people's allergies," said Amy Padilla, owner of Bellissimo Bakery, which started in 2009 operating out of a commercial kitchen and became a cottage food producer last year. "I'm very pleased with the way the labeling requirements have come out now."
Now, cottage bakers and food producers are hitting their stride, feeding a demand for locally produced foods and niche products, such as gluten-free pie and vegan cakes. Customers have been enthusiastic, home bakers said, eager to get to know their local food producers and support local businesses.
"There is a shifting cultural paradigm back to homemade food," Masters said, "But it hasn't been easy."
And the fight is not over yet.
Recently, Masters and other cottage food operators have been facing down local government authorities over zoning issues. For example, Frisco passed zoning rules before the cottage food law went into effect that ban bakers from selling out of their homes, which the state law requires that they do. Frisco is the only city to specifically ban cottage food operators, McGeary said.
The only gluten-free baker for 30 miles, Gluten Free Medley, might have to shut down while city officials mull what to do. There are no provisions in the state law that prevent local entities from using zoning rules to shut down cottage food producers.
The showdown between home bakers and zoning rules will likely have to be settled by the state legislature, said McGeary, who testified before state lawmakers last month about increasing access to healthy foods and argued that cottage food operators are one way to do that.
"The main thing for me is that I still find it crazy that we had to work this hard, to fight for this thing that seems so simple, and we're still having to fight against these government entities," Masters said. "People are smart, and they can decide where they want their food to come from."
Esther Robards-Forbes is a reporter at the Westlake Picayune. She can be reached at firstname.lastname@example.org.
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