Whether on Instagram or at the local farmers' markets, many foodpreneur businesses are operating without proper licensing. But what does that mean for the consumer?

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During the pandemic, foodpreneurs have been popping up by the dozen, seemingly daily. Log onto Instagram, type in a product – say, cookies ­– and you'll come up with hundreds of home-baked options. In fact, such virtual vendors quite literally sell everything from soup to nuts. They get paid virtually, too, by Venmo or PayPal or Zelle. Only the product is concrete enough, delivered or picked up in person.

Aside from what they sell, which could range from potstickers to arepas, these foodpreneurs generally have a lot in common. They're very good at packaging themselves on social media; in fact, some were, or still are, influencers who figured out how to pivot before or during these difficult times. Others have been selling homemade goods, either as a main way of making income or as a sideline, for years. They went online to sell when farmers' markets closed down or also went virtual. A good number are professional chefs, cooks, and other kitchen staff who lost their jobs thanks to coronavirus complications and need to make a living.

And, of course, many of them are likely operating illegally.

I say this not as a blanket authority but as someone who has both bought food from makers in an effort to be supportive, and as someone who also sold prepared foods at a lot of markets and festivals. But using my own state as an example, I have yet to see on any of these items conform to, say, just one cottage industry labeling law. According to Florida Department of Agriculture and Consumer Services (FDACS), "A Cottage Food Operation is a person who produces or packages cottage food products at his or her residence and sells such products in accordance with Section 500.80."

In any state, a cottage food business is one that doesn't need a license to operate, doesn't require a state or federal inspector, and doesn't make over a certain amount of money per year. (In Florida, that's $50,000).

Sounds simple, doesn't it? It's not. The list of things a cottage industry must do isn't long, but often isn't followed, beginning with labeling. In my own perusing, I have yet to see any product marked with this required statement: "Made in a cottage food operation that is not subject to Florida's food safety regulations."

I also don't usually see a list of ingredients; allergen information according to federal guidelines; the volume or net volume of the product; or even the name and address of the company.

Sometimes, I don't see a label at all.

If a homegrown food business can't follow directions about how to label a product – which should be the simplest process – how can you trust them to follow basic hygiene, keep pets out of a home kitchen, or increase sanitation in our COVID-19 climate? How can you know that they're storing and using ingredients, or cooking and cooling at proper temperatures properly? How can you know that eating their products won't make you ill?

The short answer is that you really can't. I wrote that the list of items ] cottage foodpreneurs have to do is short; that's true. The amount of things that they can't do – cook with meat, use industrial appliances, cook off-site, sell retail – is much, much longer. If they cross any of those lines, they're no longer under the cottage umbrella. Now they're a business that requires governmental oversight.

One of the problems with the cottage food industry, in general, is that guidelines not only vary from state to state, they differ by county as well. When Michael's Mandel Bread wanted to begin selling a softer cookie-like version of the traditional Jewish cookie, Kimmie Pertnoy says that she and her father were told that they were based in Miami-Dade County. "So we actually needed to be licensed. All other counties in Florida can be cottage food-based except Miami-Dade," she relates. "So this meant that instead of just being able to wake up and bake out of our home, we had to first find a commercial kitchen [and] also one that met our COVID guidelines. Believe me, you would be shocked how many were so lax in Miami about not wearing masks."

Not only that, but she notes that the family had to take a required Food Safety Manager Course, take a test to become certified, and get approved.

As a result of all these precautions, of course, Michael's Mandel Bread isn't a cottage business. It's regulated by government entities and, as a result, it can ship by government and private vendors – which it does, to more than 25 states already. It can also be admitted to outdoor markets.

In most states, a certification or license isn't required for cottage food businesses to sell at outdoor markets, but organizers can require one to admit a business. After all, it's their insurance on the line should foodborne illness be traced back to samples or products sold there. Jen Knox, who produces salt, sugar, and herb blends at Saltlickers, started as just such an industry, making her items first as gifts, then selling them at a holiday sale.

Now she has a commercial kitchen in her Iowa basement that gets inspected regularly, and her popular mixtures are in retail markets and stores throughout the state as well as on the website. She also still sells at farmers' markets, which are on pause for the moment, and recalls harrowing tales of rule-breaking vendors trying to get away with sampling and selling unregulated, unmarked, and disallowed goods. For instance, cottage industries are not allowed to sell salsas, preserved products, pickles, and other high-acid goods that involve roasted vegetables, even if they're baked, such as focaccia. But that doesn't mean people don't do it all the time, and get away with it, even in Iowa, which she calls "an officious state."

In addition to that and Instagram, she says she's also "amazed at the mail-order food that passes. You don't need a license to make pretty pictures."

Ni'Kesia Pannell, who debuted Peach State Drinks this past year in Atlanta, Georgia, notes that the primary reason most pop-up kitchens operate under the radar is that they just don't know better. "Most are not doing it to get over on the system. There really isn't a guidebook to go by. Unless you have a mentor in this business, not a lot of people want to lend a helping hand."

She says it's even harder for minority start-ups, who often don't have role models or, if they do, don't have responsive ones. In her case, she says, "We did reach out and ask for guidance. In some cases, they were busy or left us hanging. It's like it's some sort of competition."

This viewpoint is significant, and true in high-immigrant populations like Miami as well, where the goal is not so much as to make a company as it is to make a life. And the customers who buy are looking for a familiar taste of home – they may not be concerned about illness or illegalities.

Aside from the issues of non-existent mentors and homesickness, the state departments of agriculture are not exactly straightforward. Even when foodpreneurs intend to abide by guidelines, or they've established themselves as cottage industries and want to scale up for retail and require a commercial license, it can seem impossible to find the right document with updated guidelines.

Pannell says that sometimes it's not even the so-called experts who know. "In one instance, something was going on with our label. Somebody at the printer flagged it because they'd seen it before."

In addition, all three foodpreneurs I interviewed also said that when they did speak to authorities in the departments of agriculture, they repeatedly received conflicting advice. You're a cottage industry. You're not a cottage industry. You don't take a class. You do. "It would be beneficial to have each state of agriculture to have a welcome packet after you register your business. You search high and low on the website. From March 2019 until this past November, I called the Georgia Department of Agriculture 10-12 times for guidance," Pannell says. "Every time it was something different. The last time I called, I got the right guy who stayed on the phone."

Pertnoy had a very similar experience. She says, "We wanted to do a local market and they required licensing. When I looked online to see about our product, it did fall under the cottage food law – but the market wouldn't allow [it] without a license. So I contacted Florida Department of Agriculture, and to be honest their answer wasn't consistent. So I called about four times, and the consensus was that in Miami-Dade County the cottage food law does not apply."

To make it more confusing, Knox says, is that guidelines are re-issued frequently, especially now with COVID. "I'm fortunate to live next to one of the biggest food science programs at Iowa State," she says. "When I registered the business, the Iowa State Extension office contacted me and said this is what you have to do. But they leave the old documents up on the website, and those are the ones that have the most hits, so that when you Google search for an answer, the oldest comes up first." And despite the help that she initially received from the Iowa State Extension office, she says those who are on the front lines there don't send the memos to her inspector, who is the one who signs on the dotted lines.

It's understandably frustrating. But in the end, as Pannell, Pertnoy, and Knox all know, it's better to find out for sure exactly where you stand and have everything be above board. Because if you make someone sick, especially now during a pandemic, "You can lose your house," Knox says.

It all seems like an awfully big risk to take for an extra few thousand a year, which is what most of these pop-up kitchens, who aren't in it for the long run, will make in the end.

So how can you know if a pop-up home kitchen is safe? At the very least, look at the package. If there's no label, that's a large red flag. And if it's labeled with a pretty design and a name but not with ingredients, allergens, or a way to get in touch with the person who made it, you can be sure that someone hasn't done the cottage food law homework. Or they have, but if something goes wrong, they don't want to be found.

Bottom line: Be aware as a consumer; buy from makers you know and trust, and when trying products from new foodpreneurs, be mindful of the risks. This is by no means to say that individuals in your community aren't producing incredibly delicious items for purchase, just that some items are produced with less regulation than you might assume.