Massachusetts Wages Cupcake Wars During Pandemic

By Jessica Gandy and Daryl James

Retired salon owner and daycare provider Marcia Donnelly did not want to fight City Hall. She just wanted to sell home-baked sourdough bread from her kitchen in Southbridge.

Homemade food businesses are common and easy to start in most states, and have become increasingly popular amidst the COVID-19 lockdowns. Worried about global supply chains and general uncertainty, grocery shoppers have raised demand for fresh, locally sourced products. Unfortunately, Massachusetts has resisted the trend. “It was a battle from the get-go to set up my business,” Donnelly says.

Just learning the law proved difficult. Unlike most states, which have one set of rules for all home bakers, Massachusetts requires entrepreneurs to get special permission from their local boards of health. The result is a patchwork of regulations that vary widely across the state’s 351 municipalities. “It was very frustrating and convoluted,” says Donnelly, a widow who raised one child alone after her longtime partner died.

When she finally found the correct municipal department and arranged for a home inspection, she hit more hurdles. A city worker roamed through every room in Donnelly’s house and dinged her for a range of petty infractions, such as using a wooden rolling pin and storing flour in wooden cupboards. Commercial kitchens use stainless steel, and the inspector decided to enforce similar standards despite research from the University of Wisconsin showing that wooden surfaces are safe.

During the next visit, the inspector came back with her boss, who discovered new problems. He even flagged a freckle-sized chip in the laminate countertop near the sink and demanded a workaround. Feeling defeated, Donnelly decided to quit if she could not get a permit on her third try. Her startup costs were accumulating, and the venture was looking less and less profitable.

“You can’t just keep piling expenses on a loaf of bread and expect someone to pay $15,” she says.

Donnelly eventually prevailed, but others across the state have not been so fortunate. Boston University graduate student Andree Entezari could not even start the application process to sell homemade Persian-style fruit leather near campus. His parents grew up with the cultural snack in Iran, and Entezari developed his own recipe for a side business when he lived in Los Angeles.

Like most other states, California welcomes “cottage food,” the industry term for homemade food sold at farmers markets, roadside stands, residential kitchens, and sometimes at retail outlets and online. Research from the nonprofit Institute for Justice shows growing support for cottage food nationwide. Overall, 19 states and Washington, D.C. have created or reformed their laws since 2015 without any public health or safety problems.

New Jersey remains the only state with a total ban, although an Institute for Justice lawsuit has spurred reform efforts in the Garden State. Elsewhere, Rhode Island blocks anyone except farmers from selling homemade food. Other pockets of resistance remain at the municipal level in places such as Albuquerque and Lincoln.

Entezari discovered similar problems when he moved to Boston. Along with Cambridge and many other municipalities across the state, the city has no permitting process in place. Selling cottage foods in these jurisdictions may result in criminal convictions and fines of up to $100 per day. Selling the same products elsewhere—even one street over for vendors who live near municipal boundaries—is often legal. Unfortunately, finding an accurate list of no-go zones in Massachusetts is tricky because the state does not keep track. “People from the health department could not give me clear answers,” Entezari says.

Rather than give up, he launched a Change.org petition and reached out to Boston municipal leaders. One ally, at-large City Councilor Julia Mejia, raised the issue at a September 16 meeting. Entezari has also pushed Cambridge to explore zoning updates to allow cottage food sales. Meanwhile, the Institute for Justice is pushing for statewide reform in the state Legislature.

Although Entezari remains engaged in these efforts, he found his own workaround in September, when he moved a few miles away to Somerville. His new city grants permits that allow cottage food producers to sell their products statewide. Entezari’s product will not change—only his ZIP code—but that makes all the difference in Massachusetts.

The economic benefit in jurisdictions that grant permits is significant. Cottage food laws allow people to buy and sell products safely in their own communities, and a nationwide survey from the Institute for Justice in 2017 shows the strongest gains for women in rural areas with working-class income.

Massachusetts could use the boost as COVID-19 rages on for the foreseeable future. Homemade sourdough bread and fruit leather will not cure the pandemic, but good things happen when neighbors pull together and create local solutions.

Jessica Gandy is an attorney and Daryl James is a writer at the nonprofit Institute for Justice.