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Erin Flynn is a pirate cake baker in the White Rock neighborhood of Dallas. "I bake birthday cakes a couple of times a month for friends," says Flynn (not her real name). "I sell a big cake for 20 people for $60." Health laws mandate that food sold commercially must be prepared in a "certified kitchen," approved and inspected by the health department. And a certified kitchen cannot be located in a residence.
"I don't advertise or anything," the White Rock cake pirate says. "But technically what I do is illegal. With the economy the way it is, I need the money. When things got really bad a few months ago, the cakes were paying the electric bill."
Robin Goode is a pirate cupcake baker in Houston. She once ran a successful commercial bakery in Los Angeles. When she moved back to Texas, she decided to take a low-key approach—she bakes custom wedding cakes for upscale customers. When she needs to bake a wedding cake, she rents a commercial kitchen, but sometimes she also bakes cupcakes for people with food allergies out of her home kitchen.
"I am always worried I am going to get busted by the health department," Goode (not her real name) says. "But I need to make a living, and I can't afford to rent a commercial kitchen every time I have to bake a dozen cupcakes."
Goode says that it is nearly impossible to make gluten-free or nut-free baked goods in commercial bakeries due to cross-contamination. "My home kitchen is cleaner than most of the certified kitchens the health department wants to make me rent."
Lizz Shirey is a home cook who organized a bake sale at her Grand Prairie church to raise emergency funds for the Grand Prairie Food & Clothing Assistance Co-op, a food bank that serves the area and feeds hundreds. Just to be sure, she called the city office in Grand Prairie to make sure everything would be OK. "I was told the bake sale would be fine, just come and get a permit. When I went to get it, I was told this information was wrong, and I could not have a bake sale for the church. The food was already there. It was a nightmare."
Laws forbidding home cooks to contribute to bake sales or sell a few tea cakes to friends were seldom enforced in Texas—until recently. The national mania about food safety in the wake of the egg recall and other disasters has changed the climate.
Callye Alvarado, a young housewife who has won national acclaim for her amazingly decorated sugar cookies (see sweetsugarbelle.blogspot.com), was surprised when Zachary Holbrooks of the South Plains Health Department knocked on her door in the small town of Seminole (between Lubbock and Odessa) last summer and told her to stop selling cookies. "I was shocked—his wife used to order cookies from me," Alvarado says. "He told me that somebody turned me in. Maybe it was the new bakery that opened in town. He told me to take all the cookies off my website and Facebook page, too."
Alvarado loved decorating cookies, and the extra money came in handy. "But I don't want to open a business," she says. "I want to be home with my kids." When Alvarado was growing up in the tiny town of Crane, Texas, there were a cookie lady and several tamale ladies in town, she says. "My brother and I had our favorite tamale ladies growing up. I liked one and he liked the other, so we bought tamales from both of them. This has always been part of our community. Some day when there are no more homemade tamales at Christmastime, we are going to look back and ask ourselves why we let them take away our culture."
Bake sales and homemade tamales are only two of a long list of beloved Texas food traditions that health authorities are stamping out. Your tax dollars are also helping eradicate the dewberry jam, mayhaw and muscadine jellies, and other preserves that were once sold at farm stands. To the disappointment of many budding local food entrepreneurs, homemade food products may not be sold at farmers markets either.
Local food lovers are pushing back. They are gathering support for a change in the state health code being considered by the current session of the legislature. The Texas Cottage Food Bill (HB 1139), nicknamed "The Bake Sale Bill," would allow the licensing of home kitchens for production of nonhazardous food products for direct sale to consumers at farmers' markets, roadside stands and bake sales. Jams and jellies, syrups, flavored vinegars and mustards, herb and spice blends, candies, breads and baked goods are among the foods that would qualify as nonhazardous.
Efforts to pass a cottage food bill started with a letter-writing campaign and then a website, texascottagefoodlaw.com, launched in 2007. "There never has been any actual organization," said the home baker responsible for the site. "How could we form a formal group when what we do is illegal?"
A "Texas Baker's Bill" was filed in the 2009 session of the legislature. It made it through committee, but died without a vote. One criticism of the bill was that baking was too narrow. And so the focus of HB 1139 was expanded to include cottage foods in general. The group now uses a Facebook page titled Texas Baker's Bill as a gathering point. They chose a version of the Gonzales "Come and Take It" flag as their logo, substituting a slice of cake for the cannon and changing the words to "Come and Bake It."
"We are just like the citizens of Gonzales during the war with Mexico, an informal group united by a common goal," the group's organizer said.
On one side of this strangely comic 21st-century food culture war are "Come and Bake It" cookie ladies from across the state who are going from office to office in the corridors of the Capitol Building in Austin handing out homemade cookies to legislators and staffers while asking them to vote for HB 1139. And on the other side, the anonymous lawyers from "Big Food" are lobbying to stiffen existing food-safety regulations to make things even tougher on farmers markets and cottage producers.
America became obsessed with food safety standards after the 1906 publication of The Jungle, a novel by muckraker Upton Sinclair, who got a job in a Chicago meatpacking plant to research conditions. In the book, diseased cows, rats and rancid bits of meat end up in the sausage. In one chapter, a worker falls into the rendering vat and gets ground up along with a bunch of other debris to become part of Durham's Pure Leaf Lard.
Upton Sinclair was an avowed socialist who wrote The Jungle to bring attention to horrific working conditions and the abuse of immigrant and child labor. But his descriptions of what went into the sausage were what got Americans up in arms. President Theodore Roosevelt considered Sinclair a "crackpot" and sent his own inspectors to Chicago, where they found conditions almost as atrocious as Sinclair depicted them. Due to the public outcry, the Meat Inspection Act and Pure Food and Drug Act were passed in Congress in 1906. The Food and Drug Administration was a direct descendant of these laws. In response to the federal laws, state and local health departments around the country took up the subject of food safety.
In 1907, the state health department of Texas formed a Dairy and Food Commission to administer newly passed Texas food and drug laws. These food safety laws brought welcome improvement in sanitation standards and needed reforms to the dairy industry, which regularly sold tainted and diluted milk to the public. But the new food safety standards also brought sweeping changes to the street-food culture that had long flourished in Texas. Open-pit barbecues, tamale carts and other street vendors, outdoor chili stands and oyster bars were among the casualties of society's new focus on safety. A great many Texas restaurants were erected in the years following 1907 to make up for the loss of street foods.
Cane syrup and sorghum syrup had been the most common sweeteners in Texas before the creation of the food safety laws. The small outdoor farm mills where these syrups were produced were eventually regulated out of existence. You can see an old-fashioned cane syrup mill in action at the Heritage Festival in the East Texas town of Henderson once a year. But the health authorities won't let you buy the syrup.
Filling the gap created when traditional farm-made syrups disappeared and imported cane sugar became too expensive, high-fructose corn syrup has become the nation's most common sweetener. High-fructose corn syrup is cheap, thanks to the billions of dollars in subsidies American taxpayers supply to the corn industry. But despite a $30 million advertising campaign launched by the Corn Refiners Association to convince Americans there is nothing wrong with the high-tech sweetener, many consumers are skeptical.
While there is no doubt that the food safety reforms of a century ago were needed, their perverse legacy is a food system that subsidizes questionable products like corn syrup-sweetened Twinkies while outlawing the sale of homemade cookies.
How did America end up with such a bizarre food culture?
Food writers like Michael Pollan and movies like Food, Inc. argue that our nation's food policy has been hijacked by "Big Food" and its lobbyists. During the process of getting the new Food and Drug Administration Food Safety Modernization Act through Congress last year, The Washington Post reported that 221 food corporations and associations, including the Grocery Manufacturers Association and the National Restaurant Association, employed 77 different Washington lobbying firms to represent their interests. As you might guess, cottage food producers don't get much in the way of lobbying help.
Small farmers like Morgan Weber, who raises heritage pigs in his pastures in Yoakum, are struggling with requirements written by the FDA that apply to giant factory farms. Morgan likes to quote a fellow meat producer in Virginia named Joel Salatin, who wrote the book Everything I Want to Do Is Illegal: War Stories from the Local Food Front. On the subject of the new federal food safety laws, Salatin said, "It's an industrial attempt to demonize, marginalize and criminalize the true antidote, which is pasture-based, diversified, locally commerced food."
Appearing before Congress after a meat recall in 2008, Salatin testified: "You can't regulate integrity...It is not a lack of government oversight that created this opaqueness, but rather the cozy government-industrial fraternity that criminalized neighborhood abattoirs and cottage-based food processing. Ultimately, you cannot have a transparent food system without a production and processing model that reinserts the butcher, baker and candlestick maker into their village."
Consumers are eager to get away from the high-fructose corn syrup, trans fats, chemicals and preservatives that modern-day muckrakers like Michael Pollan and Eric Schlosser have warned them about. And as a result, more and more organic, natural and artisan food products are being sold at farmers markets and small farms. But when the local food movement started diverting a significant amount of business away from grocery stores, big agriculture and major food producers, it became a target. And so Big Food has turned the public debate about food safety on its head—they are using food safety laws to put small local competitors out of business.
Last summer, citing pressure from legislators, health authorities across the state of Texas began a crackdown. In July, Texas Department of State Health Services officials launched a statewide sting operation that cited 355 food companies with possible violations. Many of the infractions defied logic. Several producers, including Angelo's Barbecue in Fort Worth, were fined for not having manufacturing licenses, despite the fact that they don't manufacture anything—their products are private-labeled by other companies.
Hank's Ice Cream in Houston was told it needed a state manufacturing license and state inspections, even though its production kitchen is certified by the City of Houston health department. Katz Coffee in Houston was ordered to install a certified kitchen with a three-compartment sink and a grease trap by the city. The coffee roaster doesn't have anything to wash and doesn't produce any grease.
Obviously, this kind of legal nitpicking has little or nothing to do with the public safety.
At a press event in a Houston restaurant, Texas Agriculture Commissioner Todd Staples was eating fried eggs and talking about East Texas food. "I used to eat at a place called Billy Burgers in Neches when I was a state rep," he said. "They served homemade pies from a lady that lived nearby. The health department doesn't allow that anymore. That's a great example of the kind of over-regulation that makes it difficult for people to make a living."
Senator John Whitmire (D-Houston), who was also sitting at the table, agreed. When asked if they would support a bill that would allow home cooks to sell their products at farmers markets and roadside stands, both Staples and Whitmire agreed that this was an excellent idea. "I am becoming more of a libertarian every day," Whitmire said. We shall soon see if such breakfast-table common sense can survive in the 2011 session of the Texas Legislature.
"Before the legislative session started, I convened a 'Farm to Table' Town Hall meeting at the East Side Show Room in Austin," state legislator Eddie Rodriguez (D-Austin) wrote me in an e-mail. "I wanted to know from local farmers and chefs what the state could do to help the local food movement in Texas. By and large it wasn't help they were seeking from government, but for government to get out of their way."
The Texas Cottage Food Bill, HB 1139, was one of several bills that Rodriguez proposed to help the local food movement. "Of course, we have to ensure the safety of consumers, but this must be done without raising the barrier to market entry so high as to discourage new enterprises. Small producers and urban farms get into this business because they care about the food chain. Consistently the safety problems that arise come from large-scale 'Big Food' factories and not the small family operations we want to help."
Since 2009, the number of states with cottage food laws has doubled. There are currently 11 states with such laws in place and six with bills under consideration. The first was passed by Oregon more than 20 years ago. Under Oregon regulations, home kitchens are inspected and approved by the same health authorities who certify restaurant and commercial kitchens. The standards are strict and surprise visits are part of the law.
Elizabeth Montes, the owner of Sagahuan Chocolates, is one of many Oregonians who took advantage of the law to start a business at home. "After I graduated from Ecole Chocolat in Canada, I moved to New York," Montes says. "But it cost so much to rent a commercial kitchen, I couldn't work for myself. Then I moved to Oregon and found out about the cottage food law." After several years of making chocolates at home and selling them at farmers markets, Montes saved enough to open her own brick-and-mortar chocolate shop. She has since been featured in several major food magazines.
Under the most recent cottage food law, enacted in Michigan, home kitchens are exempted from health department regulations if they produce nonhazardous foods such as cakes, cookies, jams and jellies and their volume of business is under $15,000. Although it initially met with resistance from the Michigan Department of Agriculture and established food companies, the cottage food law has become the darling of state government in Lansing after being recognized nationally as an enlightened effort to help small entrepreneurs.
Other states such as Tennessee have enacted "hybrid" cottage food bills that combine the Oregon and Michigan approaches. Home bakers and cooks are required to take the same sort of health courses required of certified kitchen managers, and strict rules about home kitchens are enforced by the health department. But a bake-sale exemption allows home cooks to produce nonhazardous foods six times a year without restrictions.
The proposed Texas Cottage Food Bill resembles the Tennessee approach. It requires home kitchens producing foods for sale to be licensed and operators to complete a course in food safety. The bill limits production to nonhazardous foods. Cottage food producers are restricted to direct consumer sales such as farmers markets or roadside stands and are barred from selling over the Internet, to food-service establishments or at wholesale. Each package of food produced in a Texas home kitchen would be required to bear a label with a list of ingredients, the name and address of the cottage food production operation and a warning reading: "Made in a home kitchen that has not been inspected by a state or local health authority."
Meanwhile, on the other side of the food culture war, the food safety crackdown continues. New rules restricting the operation of farmers markets and the vendors who sell their wares there are about to be introduced in Texas. Representatives from city health departments, the state Department of Agriculture and other "stakeholders" are attending a Farmers' Market Workgroup that's being held under the direction of The Texas Department of State Health Services.
The state health authorities are considering agriculture department and food industry recommendations that would put tougher restrictions on the sale of farm eggs and reclassify torn leaf lettuce as potentially hazardous. Strict enforcement of the direct-sale rules would forbid farmers market vendors to sell wholesale to restaurants. And there are lots of new rules concerning refrigeration, sanitation, drainage, hand sinks, licenses and permits. The local farmers market as we know it may not survive under the new rules.
Who wins the food culture war in this session of the Texas Legislature could decide where we shop and what we eat for decades to come.
Former Houston Chronicle food editor Janice Schindeler sells her pimento cheese, farm egg salad and other artisan products at farmers markets in Houston—she cooks everything in a certified kitchen. "It's not about health or food safety. I have been in restaurants with certified kitchens that are disgusting. This is about our food culture. Some of us got into this to opt out of the corporate world," Schindeler says. "But in order to use a certified kitchen, you have to get insurance. So to stand in a parking lot selling your jams and jellies, you need a million dollars in liability coverage."
The Texas Cottage Food Bill would restore some authenticity to the farmers markets, in Schindeler's view. "When you require food to be prepared in a certified kitchen, you end up with business owners having their staff do the cooking. To me, the farmers market should be about people making their food and then hauling it to the market and interacting with their customers—literally and actually standing behind the product they are selling."
But not all small producers at the farmers markets favor the cottage food bill. "It's easy to find a certified kitchen, and it's not that expensive," says Al Marcus of Grateful Bread in Houston. "If I have to use a certified kitchen, then so should everybody else."
Eric Uphoff is attending the University of North Texas in Denton. "I decided the best way to earn the money to pay for graduate school would be to start my own business selling custom vegan baked goods. There is a sizable vegan population here in town, but the little vegan store's selection of snacks are imported from bakeries in places like New York," he says. But after adding up the money it would cost to apply for the market vendor's license and city temporary food vendor license, acquire liability insurance and rent a certified kitchen, he realized he couldn't afford it. The cottage food law would allow him to pay for his education."Why," he asks, "am I not allowed to do that?"
