(603) 225-2585

News and Articles

NH Lakes Launches 15th Season of the Lake Host Program

Memorial Day weekend not only signifies the start of the recreational boating season for many, it also marks the official start the New Hampshire Lakes Association (NH LAKES) Lake Host Program. This summer, approximately 800 Lake Hosts stationed at 104 of the most highly used boat ramps throughout the state will teach boaters how to help prevent the spread of aquatic invasive species—like milfoil and Asian clams—from waterbody to waterbody. Summer 2016 marks the 15th season of this nationally-recognized aquatic invasive species education and prevention program.

The Lake Host Program is funded by grants from the New Hampshire Department of Environmental Services and private foundations, and contributions from municipalities, lake associations, and individuals. Since 2002, Lake Hosts, have conducted approximately 761,735 courtesy boat inspections and captured 1,515 pieces of hitchhiking invasive plants and animals before they were able to infest our waterbodies.

The New Hampshire Lakes Association is a statewide 501(c)(3) nonprofit member-supported organization dedicated to protecting New Hampshire lakes and their watersheds. For more information, please visit www.nhlakes.org.

Jason Reimers, Esq., is a member of the Board of Directors of the NH Lakes Association.

Starting a Home Food Business

Last month I wrote about foods that you can make in your residential kitchen and legally sell to others.  Those foods include baked goods, double-crusted fruit pies, candy and fudge, jams and jellies, packaged dry products, and acid foods such as vinegars and mustards.  Read that article about “homestead food operations” for more details.  This month I want to continue with that topic and talk about what steps you might take in order to actually start a business selling a food you make in your kitchen.

Let’s say that you make a delicious homemade mustard.  Better than French’s.  Better than Grey Poupon.  You satisfy all of the legal requirements to qualify as a homestead food operation to produce the mustard in your home kitchen and sell it to others.  How do you go from making a great product for your family and friends to selling it in stores or at markets?  Well, I don’t know where you can get mustard seeds or turmeric (that is what makes mustard yellow) in bulk.  I can’t tell you where to buy mustard jars.  And I don’t know where to get your labels made.  Those are things you’ll need to figure out.

What I can help you with is establishing a business entity.  Under New Hampshire law, you have several options.  Sole proprietorship.  General partnership.  Limited partnership.  Limited liability partnership.  Limited liability company (LLC).  Corporation.  Non-profit.  Et cetera.

Within each category are more considerations.  For example, do you want to be a sole-member LLC?  Does your investor-friend just want to invest money or does she want to also help run the business?  Are you in business to make a profit or to foster social justice?  Will you have employees?  These and other considerations will inform your decision about what type of business entity you should create.

An important consideration is liability.  You see the word “limited” in many of the names of businesses, such as limited partnership and limited liability company.  For the most part, the word “limited” refers to someone’s personal liability being limited.

Liability for what?  Liability for the debts of the company or for a court judgment against the business, among other liabilities.  You might make great mustard, but if you bought three truckloads of turmeric on credit moments before the market that you sell to goes out of business, you may not be able to pay your turmeric supplier.  You may then find yourself with other bills that you cannot pay.  Maybe the turmeric supplier sues you in superior court and wins a judgment for $20,000.  Maybe you file for bankruptcy or go out of business.  If you are a sole proprietor, for example, there may be nothing protecting you from being personally liable for these business obligations.

If, though, you set up your business in such a way as to separate your personal assets from the business, you would avoid putting your personal assets at risk in the event that the business has liabilities or doesn’t work out as planned.  This is not to say that you can set up an LLC and do whatever you want and never be responsible for anything.  You must treat your business as it is, an entity that is separate from you.  In other words, there are legal formalities that you need to adhere to in order to protect your limited liability status.

There are many other considerations involved with choosing the type of business entity you want to create.  You should consider how you prefer to be taxed, your succession plans for the business, the size of the business, the money and credit available to you, and who else will be involved in running or investing in the business.

Once you decide on the type of business entity, and you’ve come up with a business name, you will have to file certain documents with the New Hampshire Secretary of State (and pay a modest fee).  You may also need to file documents with the Internal Revenue Service if, for example, you want to obtain a tax identification number (TIN), which is also known as an employer identification number (EIN).  You’ll need one of these if you intend to have employees.

There are a lot of other considerations—more than I can address in this article.  But if your mustard is that good, perhaps the hard work is worth it.  However, even the best mustard will not cut the mustard without sound business planning.

Selling Food That You Make In Your Kitchen

Over the holidays, a friend gave us nicely jarred strawberry jam that she made at home.  Another friend spent a Sunday in our kitchen pickling various vegetables, including cauliflower, golden beets, candy cane beets (that was the first I ever heard of those), and radishes.  I heard someone tell each of these people that they should sell their creations.  I bit my tongue each time.   I didn’t want to be the lawyer in the room saying, “Well, you know, you can’t really do that, blah, blah, blah, blah, blah.”  Some retail food can legally be produced in a residential kitchen and some cannot.

There are numerous state and federal laws governing the production and distribution of food.  This article focuses on a small segment of food that can be legally prepared in a New Hampshire residential kitchen and sold to the public.  These foods are called “homestead food products,” and the relevant statute is RSA 143-A.  The New Hampshire Department of Health and Human Services (DHHS) has promulgated administrative rules that flesh out RSA 143-A.

According to the administrative rules, the term “homestead food products” includes the following foods:  baked items; double-crusted fruit pies; candy and fudge; jams and jellies; packaged dry products; and acid foods such as vinegars and mustards.  I love when the law gets this specific.  Generally, these foods can be prepared in a residential kitchen and sold to the public, though if you make jam or jelly from a recipe that is not from the National Center for Home Food Preservation, there are additional requirements that you must meet.

Depending on where you sell the food and how much business you do in a year, you may need a license from DHHS to set up your business as a “homestead food operation.”  There are fifteen municipalities, including Keene, that have their own licensing requirements that are often similar to those of DHHS.

If you produce one or more “homestead food products” and your annual gross sales are less than $20,000 and the food products are sold from the homestead residence, the owner’s own farm stand, farmer’s markets, or retail food stores, then no license is required.

There are two circumstances under which you need a license.  One depends on the volume of sales, and the other depends on where the food is sold.  If your gross sales of homestead food products exceed $20,000, a license is required.  Period.  Next, even if your gross annual sales are less than $20,000, you need a license if you plan to sell your food to restaurants or other retail food establishments, over the Internet, by mail order, or to wholesalers, brokers, or other food distributors that will resell the food.  The license fee is $150 a year and the application is available at the DHHS website.

There are labeling requirements for packaged food that differ depending on whether the food operation is licensed.  Be aware that even homestead food operations that are not required to be licensed must follow the labeling requirements.  The exact wording that must be used is in the statute.  As a consumer of locally produced packaged foods, keep an eye out for labels.  You may see one of the following statements: “This product is made in a residential kitchen licensed by the New Hampshire Department of Health and Human Services”; or “This product is exempt from New Hampshire licensing and inspection.”

There are certain foods that cannot be produced by a homestead food operation.  These are called “potentially hazardous food,” and include cheesecakes, pumpkin pies, custards, soups, sandwiches, pickles, and relish.  This list is put out by DHHS and is not exhaustive.  When I was in law school, I got food poisoning from a homemade custard dessert, so I am happy to see that custards made the “hazardous” list.  Since then, I haven’t been tempted even by a licensed custard.

“Potentially hazardous foods” are foods that require temperature control to prevent such pathogens as botulism and also include low-acid canned foods.  If you want to produce these foods for sale to the public, you are not eligible to be a homestead food operation—licensed or not—and must comply with other food laws that are beyond the scope of this article.

For licensed homestead food operations, there are some requirements in the administrative regulations regarding kitchen set-up.  For example, if your bathroom opens into the kitchen, the bathroom must have self-closing doors and mechanical ventilation.  (And please wash your hands!)  And if you have a laundry machine in the kitchen, you are not allowed to run it during food production.  That seems reasonable.  You might as well wait to do the laundry until you are done making your double-crusted fruit pies so that you can include your amateur chef uniform in the wash.

Leadership New Hampshire 2016

Attorney Jed Callen recently participated in the Leadership New Hampshire Program. Attorney Callen spoke to the group as part of the Environment and Sustainability Program held on January 21, 2016 at Squam Lakes Natural Science Center in Holderness. Attorney Callen took part in the discussion of the topic: “Tying it all together: How New Hampshire’s Natural Environment Sustains our Economy and Social Fabric.”

Land Conserved in Loudon

Ladd photo

Attorney Jason Reimers is proud to have assisted Lucille A. Ladd in conserving 66 acres of her land in Loudon. In December, Mrs. Ladd granted a conservation easement to the Town of Loudon that will conserve the land in perpetuity and prevent future development. The beautiful property consists of farm land and forests. Selectman Roger A. Maxfield (left) and Conservation Commission Chair Julie Robinson (middle) attended the closing on behalf of the Town.

Attorney Amy Manzelli teaching at the Center for Agriculture and Food Systems at Vermont Law School

Attorney Amy Manzelli’s newest role as a faculty member at the Center for Agriculture and Food Systems (CAFS) at Vermont Law School was highlighted in the October newsletter for CAFS. Read up on the latest news for the Center for Agriculture and Food Systems and get the details on the course   Attorney Manzelli will be teaching in the spring. Read the October newsletter or go to the website at www.vermontlaw.edu/academics/centers-and-programs/center-for-agriculture-and-food-systems.

Permits: Know the law before you work on your property

Attorney Jason Reimers writes a column for the Monadnock Ledger-Transcript. Read his article entitled “Permits: Know the law before you work on your property” published on October 27, 2015.

Pro Bono Honor Roll

Attorney Jason Reimers was honored to be recognized on the Pro Bono Honor Roll in the New Hampshire Bar News. In addition, BCM Environmental & Land Law was recognized for their pro bono work on the Third Quarter 2015 Law Firm Honor Roll.

Attorney Amy Manzelli Selected as Super Lawyers Rising Star

 

Attorney Amy Manzelli has been recognized as a Super Lawyers Rising Star. For the seventh straight year, Attorney Manzelli has been selected by her peers as a top rated Environmental Attorney. Attorney Manzelli has been selected as a Rising Star longer than any other environmental attorney in New Hampshire.

Operation Santa Claus

Operation Santa 2015

BCM Environmental and Land Law made a quick trip to Santa’s Workshop in December where we dropped off our contribution to this year’s Operation Santa Claus.  We were able to brighten this year’s holiday for four children with everything from Transformers and Tonka trucks to Ninja Turtles and nail polish, with a few Avengers thrown in for good measure!