Most state legislatures are in session, but it’s too early to know if it’s going to be a good year for food safety. The Institute for Justice, a non-profit law firm for protecting constitutional rights, is out with its Baking Bad survey of state laws that allow the sale of homemade food.

Using 17 distinct criteria, Baking Bad graded and ranked nearly 70 different homemade food programs from all 50 states plus the District of Columbia. (See Methodology)

• The average grade is a C. Nationwide, 13 states have homemade food laws that earned a B or better. Reflecting this recent surge of interest, 12 of those states enacted their reforms in the past five years.
• Thanks to its Food Freedom Act, Wyoming has the best laws in the country for selling food made at home and allows the widest variety of products, earning the report’s only A.
• In sharp contrast, Delaware is dead last, receiving the only F in Baking Bad.

Homemade food varieties
Until recently, most reform efforts targeted “cottage food” laws, which tend to be limited to shelf-stable foods that don’t require refrigeration. But starting in 2015 with Wyoming’s Food Freedom Act, more states are allowing an increasing variety of homemade foods to be sold:

• Today, 26 states allow the sale of homemade pickles and other acidified foods. 
• In 19 states, entrepreneurs are free to sell home-fermented foods like sauerkraut and kimchi. 
• Fourteen states allow the sale of refrigerated baked goods, like pumpkin pies and cream-filled pies.
• Five states even allow the sale of home-cooked dishes that contain meat, creating a new alternative to opening a restaurant.
• In sharp contrast, cottage food businesses in 17 states can only sell items from an approved list of products set by government regulators.

Restrictions on selling homemade food
Every state allows homemade food to be sold directly to consumers at farmers’ markets. But there the similarities end, as sales and venue restrictions can vary dramatically from state to state:

• Eight states prohibit homemade food businesses from selling online.
• Fifteen states ban mail delivery of cottage food products.
• In 26 states, people selling food made at home face annual revenue caps, ranging from $3,000 for selling pickled foods in Virginia to $250,000 in Florida and Wyoming. Among state laws with yearly sales caps, half are at or under $50,000.

Regulatory burdens
The ease of opening a home-based food business can fluctuate wildly, not just from state to state, but within states as well:

• Thirty-two states never require an inspection to open a homemade food business, while 25 states do not license, permit, or register home-based food enterprises.
• On the other hand, six states plus the District of Columbia impose extensive inspections and permitting requirements before anyone can open any type of homemade food business — no matter how slight the perceived health risk is.
• Nineteen states and the District of Columbia require recipe approval or laboratory testing before selling at least some homemade food products.
• Even if a state law is permissive, local ordinances may further restrict or even outright ban a homemade food business that would be legal elsewher in the state; only 15 states expressly pre-empt cities and counties from imposing additional homemade food regulations.

IJ’s National Food Freedom Initiative is a nationwide campaign that brings a variety of legal challenges and legislative efforts to laws that restrict the ability of people to buy, sell, grow, or advertise different foods from their homes. As the nation’s leading experts on home kitchen laws, IJ has helped change the laws in more than 20 states.