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Take Heart, Butter-Cream Lovers, a New Law Could Set You Free

Home bakers will no longer be outlaws if Governor Rick Perry doesn't veto a new bill allowing them to sell their goods.
Home bakers will no longer be outlaws if Governor Rick Perry doesn't veto a new bill allowing them to sell their goods.
Bethany Davila

It's a beautiful thing when elected legislative officials take cues from their constituents and act on them. That's how state government functions, right? People need or want a change in regard to a particular issue, so they start calling their senators or representatives, who then draw up the plans, debate with their peers and maybe make a law.

Hah. Just kidding.

Nevertheless, last Friday, for all of us who love butter cream icing, things took a turn for the better.

Many probably don't realize that currently bake sales are mafia-esque operations where only cops with a sweet tooth can be bribed. And your aunt who makes wedding cakes on the side? She's a crook. See, in Texas you can't sell anything made in a home kitchen, although that could change since Senate Bill 81 passed by both the Texas House and Senate last week. Sections 5 and 6 of this measure clears the way for bakers across the state to come out of the dark, murky shadows and sell their goods legally.

The bill stipulates that as long as their gross annual income stays below $50,000, home bakers can sell non-potentially hazardous "baked goods" including cookies, cakes, breads, pies, etc. Local health departments do not have the jurisdiction to regulate these home cottage food operations, but they must maintain a record of any complaints made. And the bakers are required to label all of their foods with their name, address and a statement that the food was made in a home kitchen that has not been inspected by a health department.

And, lastly, the product cannot be bought over the Internet. This specifically means the home bakers can't set up an online shopping cart and let people purchase blindly. Websites can still be used to promote and operate a business, but the essence of this clause is to ensure this is a cottage business where locals interact face-to-face, in the true spirit of the bill.

Representative Lois Kolkhorst (R-Brenham) became the biggest supporter of the effort and filed House Bill 2084, which eventually died but was later woven into SB 81.

"I filed House Bill 2084 not just as a public health bill, but as a public freedom bill," explained Kolkhorst, who chairs the House Committee on Public Health. "I'm charged with overseeing laws that affect our health and safety. But as a lawmaker, I'm also trying to stop America's slide into an authoritarian society, where we're afraid of government stepping in to regulate every aspect of life, including our own food choices."

On the baking front, Kelley Masters has waged a tireless effort to promote the cottage food measure since being told she couldn't start her own home cake business back in 2006. Blogging about the matter she wrote, "In a society that values freedom and entrepreneurship, a cottage food law is both necessary and moral."

Through the Facebook page "Texas Baker's Bill" she and other organizers amassed nearly 3,500 followers who have been treated to a re-education of the complicated and often silly legislative process required to pass a bill.

"This bill will let people with a talent for baking or decorating cakes and cookies create their own jobs," said Masters. "It also promotes local foods and entrepreneurship."

Unfortunately this bill does have some opposition, and Governor Rick Perry hasn't signed it yet. Some health departments, like Harris County's (Houston), had explicit concerns about health risks and lobbied against it. Hours before Kolkhorst took the podium for the final vote, Harris County lobbyists proposed amendments. Being a rural lawmaker, the Brenham legislator knew she had to strongly consider their requests since it was a risk to face-off with and urban delegation who could have recruited other urban lawmakers to defeat the bill.

Harris County's Director of Legislative Relations, Cathy Sisk, said, "In the end we were happy with the final wording of the bill for the most part."

Sisk explained that there were two stipulations in the bill that led to the compromise for health officials. The first was that all packaging must include a statement that the product was baked in an uninspected home kitchen. And the second was banning Internet sales.

This touches on the leading free market principle of caveat emptor, which means, "Let the buyer beware." On the flip side this term carries with it the concept that the buyer should get to decide from whom they purchase a product and assume any risks associated with that purchase, without interference of government. As for the assumed risk, the cottage food bill is only for non-hazardous food and requires specific labeling.

The governor has three choices now that the bill resides on his desk: sign it, which make it law; ignore it, which also makes it law; or veto it, which means everyone starts all over again next year session.

Requesting anonymity since the law isn't official yet, a clandestine cupcake baker in Dallas explained what this means to her.

"If this bill passes it will help many families like mine make the extra cash we need to get through tough times," she said. "My work is great and people have no problem buying from my kitchen. Home bakers should not have to live in fear of being shut down when everyone involved in the transaction is aware and satisfied."

Texas home bakers are literally sitting at home with eggbeaters ready to whirl. Governor Perry has to sign the bill within 20 days of it being passed. Then, hopefully, on September 1, 2011, the day the bill will be enacted, they'll all be legit.

Scrolling through the Texas Baker's Bill Facebook page, it sounds dramatic, but their livelihoods are literally at stake. And they're not asking for a hand out; they just want to work.

Follow City of Ate on Twitter: @cityofate.

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