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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.