What’s the deal with lemonade stands and the Texas Cottage Food Law?
In June of 2015, two little girls in Overton, Texas, started a lemonade and popcorn stand in their yard in order to raise money to help pay for tickets to take their father to a water park on Father’s Day. What could be more wholesome, admirable, or industrious?
Unfortunately their pop-up business attracted the attention of a passing police officer with apparently not enough to do that day in Overton, Texas. What happened next has been reported differently by different news outlets, but the long and short of it was that the girls and their mother first were told they needed a city permit, and then they found out that it’s illegal to have a lemonade stand in Texas.
Outrageous? Most definitely. But what was even more outrageous was the faux helplessness displayed by city and health officials, erroneously blaming the illegality of the lemonade stand on the very recently passed Texas cottage food laws (2011 and 2013).
Why is this so outrageous? Until 2011, it was illegal to sell homemade food in Texas, period. Sure, there was an exception for some charitable bake sales (and this was not even granted in some jurisdictions – imagine a bake sale with only Twinkies and Ding Dongs), but if you were trying to generate extra income with cakes or cookies from home, you were out of luck. The sweeping Texas Food Establishment Rules, developed by the Department of State Health Services, had been in place for decades (no one was sure exactly how long, possibly dating back to the 1960’s), and it was these rules that prohibited the sale of all homemade food. Why is it so important to point out the exact reason that this was illegal? Because the sale of homemade food was illegal by RULE – not by legislation. No elected lawmaker ever passed a law outlawing homemade cookies and lemonade. This was done by bureaucrats, apparently without anyone ever noticing that our rights were being taken away.
A group of bakers came together in 2009 and approached their legislators, demanding a legal vehicle for starting a small baking business from home. The first cottage food bill, or “Baker’s Bill” as it became nicknamed, was filed by State Representative Dan Gattis in 2009. This first bill was met with abject horror from health officials and city governments statewide. If people were allowed to sell homemade food, it would be the end of public health as we know it. People would die. It would be, as one official stated, “like returning to the days of the common drinking cup”.*
The 2009 bill passed committee unanimously but unfortunately time ran out on the legislative session before it could be voted on by the full House. Nevertheless, by the 2011 session, the idea of being able to buy and sell local, homemade food had attracted more supporters, and the bill was reintroduced with even more traction in the legislature, despite opposition from the same groups as in 2009. While it was almost killed by Harris County health officials behind the scenes, it was revived at the last minute and became law on September 1, 2011. Bakers around the state rejoiced. The bill was limited, but still a huge victory for personal freedom and entrepreneurship.
In 2013, an expanded cottage food bill was filed. This bill included more foods than just baked goods and jams and jellies, like candy, cereal, popcorn, vinegar, dry mixes, and more. This bill passed with almost unanimous consent and became law on September 1, 2013.
These two bills together form what we know as the Texas Cottage Food Law. A good way to imagine this law is as if it is an umbrella – a safe haven from the burdensome Texas Food Establishment Rules. As long as the food you are making is 1) on the list of allowed foods, and 2) does not require refrigeration to keep from spoiling, then this food is something that you are allowed to make at home and sell, in the proper locations with the proper labeling.
So what about lemonade stands?
Well, the fact is, that the cottage food law isn’t about lemonade. It never was. It was about giving entrepreneurs a “foot in the door” to start their own food business without the crushing overhead costs of a commercial kitchen. The cottage food law doesn’t “prohibit” lemonade stands, as has been reported in the media – the cottage food law is an enabling mechanism that ALLOWS people to start certain kinds of food businesses from home. Lemonade stands are “prohibited” by the pre-existing Texas Food Establishment Rules. And because the cottage food law is restricted to non-potentially hazardous food only (food that does not require time or temperature control to keep from spoiling), lemonade could never be a part of it. The law would never have passed if we tried to add it. The non-potentially hazardous foods allowed do not typically harbor the pathogens that can breed and make people sick. This is why we are allowed to make them from home, largely unregulated. This restriction protects both consumers and producers.
If it weren't for the cottage food law, it wouldn't be legal to sell any homemade food. That is the truth.
I know what you’re thinking – oh boy! Lemonade is not dangerous! What a stupid law! Well, I tend to agree. But the law you think is stupid is actually a “rule” (remember those Texas Food Establishment Rules) and it’s been in place since before a lot of us were even born. I would argue that the Texas Food Establishment Rules stripped us of our fundamental rights to produce and sell food, but that may be a different essay for a different day.
Winston Churchill once famously said, “If you make ten thousand regulations, you destroy all respect for the law.” Nowhere could this be more perfectly exemplified than by a city shutting down two little girls’ lemonade stand. It’s disgusting. But blame the bureaucrats and their rules; don’t blame the cottage food law, which was a long, hard-fought battle by local foods activists to create a tiny bit of food freedom in Texas.
*To date, there has not been a single report of a foodborne illness regarding a cottage food product. Forbes, 2014.