by Kim Courtney
Small local food businesses are becoming more popular, thanks to numerous local food movements, like Slow Food USA (slowfoodusa.org), a network of over 100,000 members in more than 150 countries with a mission to protect the quality, sustainability and affordability of local food. The Slow Money movement (slowmoney.org) is also making an impact, with $39 million invested in local food businesses since 2009, and a mission to catalyze "the flow of capital to local food systems, connecting investors to the places where they live" and promote "new principles of investing that 'bring money back down to earth.'". This has all no doubt contributed to the record number of 8,144 farmer's markets listed in the USDA Directory as of August 2013 (National Farmers Market Directory), and other small local food businesses that seem to be booming.
The increase in interest in starting local food businesses has created a larger need for licensed commercial kitchen space, which is not easy to find in most places. Shared commercial kitchens, often called Incubators or Community Kitchens, are expensive to set up, require compliance with lots of regulations, and get filled up really quickly in most communities. For those jurisdictions that allow it, getting your home kitchen licensed could be a great alternative, especially for those trying to get started on a low budget.
The laws in the state of Massachusetts that allow licensed home kitchens, often referred to as Cottage Laws, are more flexible than in many other states, although they are subject to additional local regulations in some cities and towns. Although the requirements are not difficult for most people to meet, there are pretty strict limitations on the types of food that can be prepared in these licensed home kitchens, which could bar some businesses from using this option. For those whose business plan fits within the rules, a licensed home kitchen can be a great option for someone starting out who wants to get things going with very little overhead. Here's how it's done.
If you are interested in exploring the option of getting your home kitchen licensed, the first thing you need to do is check your zoning laws to see if home businesses are allowed, and if so, what types are allowed. The worst thing that you could do is get all the way through the regulatory process and then find out that your zoning doesn't allow it.
ServSafe Food Protection Manager Certification
Regardless of the type of food establishment you create, even if it's just a licensed home kitchen, you will have to get ServSafe Certification. Technically only one person in the operation needs to be certified, 105 CMR 590.003(A)(2), but with a home kitchen, it is advisable to have everyone involved get certified, because the loosened regulations make it a bit easier to make someone sick.
There are numerous organizations approved to administer the course and exam, which are typically offered on the same day during a one day course. Even if you think you can study and take the test without the class, it is a good idea to take the class anyway, because you do learn from the questions of other test takers.
Licensed Home Kitchen Requirements in Massachusetts
The U.S. Food and Drug Administration (FDA) creates and publishes a model Food Code that is relied upon by many local, state and federal regulators across the country. Although the FDA's most recent Food Code was published in 2013, the Commonwealth of Massachusetts still follows the 1999 Food Code in its regulations (1999 Food Code, www.FDA.gov), which is incorporated into its laws.
Below is a summary of some of the most important Massachusetts regulations for licensed home kitchens. Each city or town will have additional rules as well. The below laws can be found at 105 C.M.R. 590. You can also refer to the Residential Kitchens Questions and Answers written by the Massachusetts Food Protection Program (www.mass.gov). To learn about home kitchen regulations across the country, there is an August 2013 study by the Harvard Food Law and Policy Clinic entitled Cottage Food Laws in the United States.
Limitation on Types of Food Prepared - Only non Potentially Hazardous Foods (PHFs) can be prepared in a licensed home kitchen in Massachusetts. Ingredients that are potentially hazardous can be used in preparation as long as the final product is not potentially hazardous. (See explanation of Potentially Hazardous Foods below).
Employees & Brokers - Only immediate family members residing in the household can prepare food for sale. No outside employees can be used. Brokers, wholesalers or warehouses also can not be used.
Purchasing - You must buy your food only from a vendor approved by the state.
- Storage - You need separate dry and cold storage for your business and personal food items in your kitchen. This means that you need a separate shelf or designated spot for your business food that is separate from your personal food.
- Labeling - If you package your food it must also meet requirements set forth in 105 CMR 520.000 for labeling, which differ for Retail and Wholesale.
- Hygiene - You must follow the same health, hygiene, hand washing, and toilet use requirements as if you were using a standard commercial kitchen.
- Equipment and Utensils - These need to be made of safe materials and kept in good repair. Generally standard kitchen equipment is sufficient, as long as it is in a condition where it can be properly sanitized.
- Food Contact Surfaces - All surfaces that may come into contact with food, like counters, sinks, work surfaces, etc., need to be made of smooth, non absorbent materials that are easily cleanable. Again, this requirement is generally easily met in a home kitchen as long as you don't have cracks in your countertop and you can properly sanitize everything that food will come into contact with.
- Cleaning and Sanitizing - The same rules apply for cleaning and sanitizing as for a commercial kitchen, but there are some looser exceptions that allow for the use of a residential dishwasher, as long as the highest setting of sanitizing possible for that machine is used, and the temperature rises to 150 degrees, which needs to be tested everyday, with records kept for 30 days. Although this is on the books, it seems unlikely that these records would be requested.
- Insects and rodents - As in any kitchen, you need to take steps to avoid having insects and rodents in your kitchen.
- Pets - Massachusetts does allow a household with pets to license their home kitchen, but those pets must be kept out of the kitchen and preparation areas during food preparation.
- Laundry - If there is a clothes washer and dryer located in the kitchen, it can remain there but can not be used during food preparation.
- Guests - Thecooking facilities can not be used by guests while food is being prepared for the business.
- Trash - Cans used for trash need to have lids that seal securely.
Potentially Hazardous Foods (PHFs)
Massachusetts limits the types of foods that can be prepared in a licensed home kitchen to non Potentially Hazardous Foods (PHFs). On a very basic level this generally means you can make any food that is not perishable and does not require refrigeration. Technically, it must have water content of 0.85 or below, and a pH level of 4.6 or below.
Types of foods that are allowed include baked goods (cakes and cookies), jams, and jellies. It is acceptable to use PHF products in the preparation of food as long as the result is non PHF. Not allowed are foods like cream-filled pastries, cheescake, or custard, in addition to cut fruit and vegetables, tomato sauce, barbeque sauce, pickled products, relishes, garlic in oil, and salad dressings. Anything requiring state or federal processing approval, like acidification, curing, smoking, hot fill or vacuum packaging, is prohibited.
If your product is not on the approved list, you can have it tested by a facility for pH and water activity, and it might be approved. Not every jurisdiction is open to this type of testing, which makes it much more flexible in Massachusetts than in many states.
Retail or Wholesale?
In order to sell directly to consumers, you will need to request a Retail health permit from the local city or town where your home is located. Check with them to see what additional requirements they may have on top of the state requirements. This permit generally allows you to sell at farmer's markets or bake sales, but does not allow you to sell at restaurants or supermarkets, which is considered Wholesale. Labeling requirements for your specific Retail or Wholesale product, review 105 C.M.R. 520.
In order to obtain a Wholesale permit, you will first need your get your local health permit, and then you will apply for the state Wholesale permit. The local inspector generally handles inspections for the Wholesale permit as well. Here's a good summary of Wholesale requirements created by the Massachusetts Food Protection Program (www.Mass.gov). Wholesale permits allow you to sell to companies that will then sell your products to the public. Your products can be sold anywhere in Massachusetts, but not outside of the state, which would require Federal approval.
How Much Will it Cost?
The local health permit is generally $100 or so, and the state Wholesale permit is around $150. The ServSafe Manager training and course is typically under $150 for both. Generally you will need to spend minimal money to get your kitchen ready. It will just take a little leg work to make sure everything is in compliance.
With under $500, in most cases, and a month or two of wait time, you could get started with your food business right out of your home. That's pretty compelling.
By Kim Courtney, Esq., Courtney Law, Kim@KimCourtneyLaw.com.
Copyright 2015 Kim Courtney