Behind The Scenes Of A Cottage Food Bill
Last week, on September 16th, 2021, California’s governor signed AB 1144, a cottage food bill that will improve California’s cottage food law.
It is the last of 17 cottage food initiatives that have passed in 2021 (the most of any year, by far).
Specifically, on January 1st, 2022, this bill will improve the law for California’s CFOs (cottage food operations) in a number of ways:
- Allows shipping cottage food products within the state
- Allows local delivery via third-party delivery services (like Postmates, DoorDash, etc)
- Increases the sales limit to $75k for Class A CFOs (up from $50k)
- Increases the sales limit to $150k for Class B CFOs (up from $50k)
- Further increases the sales limit each year to keep up with inflation
- Eases the process for Class B CFOs to sell indirectly (e.g. through stores) in counties outside their own
This amendment was long overdue, as California had not amended their law since 2013!
But did I ever think I would be the one spearheading CA’s next cottage food law improvement? Definitely not!
“You’re not going to sell fudge this year, are you?” asked my wife, which was less of a question and more a statement of fact.
“Of course I am,” I joked. “Why wouldn’t I?”
Fortunately, she could tell I was kidding! Long before that, I had made the obvious choice to keep my seasonal fudge business closed for the 2020 holiday season.
You see, my wife was 7 months pregnant at the time, and our daughter’s due date was December 11th. Our baby girl could have shown up at any time between mid-November and Christmas!
Clearly, I had more important things to focus on last year than fudge:
But since I wasn’t going to be spending dozens of hours prepping for (and attending) holiday markets, a thought crossed my mind:
“What if I used some of that time to start a cottage food bill?”
I had every reason in the world NOT to start this bill. And it would have been far easier if I didn’t.
On top of my work with Forrager, I had stay-at-home dad duties for not one, but soon-to-be two young children! How in the world would I find the time to focus on a cottage food bill? Was I crazy?
Truthfully, with so much on my plate, I never would have committed to such a daunting task if it were not for one organization in particular: the Institute for Justice.
The Institute for Justice has had a hand in the vast majority of cottage food law reforms in the past five years or so. Leading the charge there is Erica Smith Ewing, an attorney who has become a major advocate for the cottage food industry.
As Erica said on my podcast, “It’s really us doing all the work and having you let us tell your story”. That sounded pretty easy to me! If I could get IJ on board, I thought, it just might work.
But why this year? Why not wait until next year, when my life would likely be less hectic?
There were two reasons for that:
- The 2020 pandemic had massive consequences on CFOs when their farmers markets (and other direct sales venues) closed. It seemed obvious that CFOs should be able to ship their nonperishable products during the pandemic, but the law wouldn’t allow it. So I thought legislators might give this bill priority, since it was pandemic-related.
- I knew that if I waited until the 2022 session to start this bill, the earliest I could start shipping my fudge would be January 1st, 2023. And I really didn’t want to wait that long!
Because of my work with Forrager over the past decade, I have read and followed hundreds of cottage food bills through their legislative journey.
But did I know how to start one myself? Ummm… no, not really.
It was like standing beside a pool, watching others swim, versus jumping into the pool. I had a lot to learn!
My first call was to Erica. I asked, “What’s my first step? Do I write the initial draft of the bill?”
She said “No, no, no… drafting the bill is the easy part. The first thing you need to do is find a sponsor.“
Translation: I had to find an assemblymember or senator in CA that would put their name on the bill. And I had no idea how to do that.
It wasn’t like I could just reach out to all 120 of them myself. They don’t want to hear from me… they want to hear from their constituents!
Erica recommended I reach out to the primary cottage food Facebook group in CA, which has over 4,000 members, and ask them to reach out to their legislators.
With 4k+ members, I mistakenly thought, “We’ll reach out to most of these legislators in no time!” But that was definitely NOT the case.
I started by writing an email template that people could tweak and send to their legislators. It explained the bill and why it was important in light of the pandemic.
Then I created a simple graphic to use on the Facebook group post, as I knew that would get more attention:
In the post, I basically tried to convince people to take a few minutes out of their day to forward my message to their Assemblymember and Senator.
As it turns out, that wasn’t easy to do!
The post got a lot of attention (i.e. “likes”), but ultimately, only about a dozen people reached out to their legislators.
I don’t think it’s because people were too busy. I think it’s because people didn’t know how important it actually was for them to do it!
And that’s the way I used to be. I used to think that my little action couldn’t make much of a difference.
But as you will see from Susanne’s story below, my former thinking was simply ignorance.
Finding a sponsor was the hardest part of the process, by far. Perhaps it would have been easier if it weren’t for the pandemic.
This legislative session was absolutely jammed with bills. Legislators were being told to limit bills to only the “most essential” ones.
Of the dozen or so people who reached out to their legislators, many didn’t get a response at all, and of the responses we did get, the answer was an overwhelming “Sorry, not this year.”
You might be thinking, “Wow, this sounds like a lot of work. Certainly much more work than Erica eluded to above.”
And it was a lot of work. That’s very true. But there were some unique things working against us:
- The Institute for Justice hasn’t done a lot of legislative activism in CA, so they didn’t have the kinds of connections that they have in most states.
- The Institute for Justice had already created their plan for what states they would focus on in 2021. I came in well after the fact with this last-minute idea to start a bill. I think Erica only agreed to it because we had a good working relationship, and she didn’t commit IJ resources to it until I had found a sponsor (i.e. until it was more than a pipe dream in my head).
- In CA, cottage food bills fall under the health department (in some states, it’s the ag department), which was inundated with bills for all sorts of healthcare and pandemic-related issues.
So in hindsight, it would have been a lot easier if I had notified Erica of my desire to start a bill in the middle of the year, and if I hadn’t chosen the most hectic of all years to try to pass this bill!
The Lucky Break
It was two days before the deadline to submit bills into the 2021 legislative session. It had been over a month since I posted in the Facebook group.
All of my leads had turned into dead ends, including contacting the office of the assemblymember who sponsored AB 626 a few years ago.
I had given up all hope. I finally conceded defeat, and clearly remember thinking, “Well, I guess there won’t be a bill this year after all. I guess I’ll have more time to spend on other things!”
But then, out of nowhere, I received a call from Susanne McBride (one of the dozen who reached out to their legislators), who used to sell homemade caramels in Monterey County.
She said, “I think I have good news!”
And sure enough, her Assemblymember, Asm. Robert Rivas, was interested in sponsoring the bill!
They ended up sponsoring it, managing to submit it on the deadline (January 15th) and get it into the session just in time.
Here’s the thing: it would have been so easy for Susanne NOT to forward my email. She could have said, “No, I’m too busy”, or “It probably won’t work”, or any other manner of excuses.
And if she had not taken a few minutes to forward my message, AB 1144 would not exist today. It is as simple as that!
Equally important were the efforts of the dozen-ish individuals who also forwarded my message. ALL of them were necessary, even though Susanne’s is the one that worked.
We were ultimately very lucky that one of their legislators was the right sponsor for this bill!
As soon as we had a sponsor, I started writing the first draft of this bill. It took quite awhile, as I’d never written a bill before!
Normally this is something Erica or her team would do, but she was swamped that day, and my extensive familiarity with cottage food laws made it very doable for me.
I ran the draft by her so that she could make any needed changes before sending it to Rivas’ office.
The hard part was figuring out what I wanted to put in the bill, and how to word it.
I had a list of about 10 pain points that I know CA CFOs face, but the primary focus of this bill was always the shipping issue. That one was most important to me, and I knew that would also benefit the most CFOs.
Ultimately I addressed 7 of the 10 pain points in the initial draft.
I knew we’d probably have to make some compromises to get the bill passed, and sure enough, half of those issues got whittled away when the bill reached the Assembly Health Committee.
Fortunately, early on in the process (before I even sent the Facebook post), I spoke with Peter Ruddock, who is a board member for the COOK Alliance and has had his hand in just about every CA local food bill in the past decade (most notably AB 626).
He warned me what to watch out for, and what to expect, as I headed into the process.
That turned out to be critical to making success more likely. As a result of his advice, I took a more conservative approach to drafting the bill, instead of taking the more radical approach used in other states recently.
It was just as he had said… each part of the bill was reviewed and re-reviewed with a “fine-toothed comb”. Even tiny changes were overanalyzed and questioned.
It made things a lot more complicated and difficult, but I assume that this is more typical of the larger and more bureaucratic states.
In any case, since the Institute for Justice didn’t have a lot of experience working in CA, we needed a legislative expert on-hand that could answer questions about the processes in our state, and Peter provided that when needed.
But the Institute for Justice did provide a ton of support in other ways. Erica quickly passed the baton to Brooke Fallon, who basically came up with the game plan for how we were going to generate support for the bill.
When Brooke left the Institute for Justice about two-thirds of the way through the session, Jordan Banegas took the reigns until we reached the finish line. I was super impressed with both of them!
Last, but certainly not least, Asm. Rivas’ office assigned Kenneth Cruz to our bill. He was in the middle of a fellowship program and had never led a bill through a session before, but he did an amazing job (and also learned a ton about the cottage food industry along the way)!
Probably the most surprising thing that I discovered while working on this bill was just how many times we had to pander to individuals to get something accomplished.
The ideal part of me likes to believe that we are a democracy, run by the masses. But really, there are many key players in politics that have power to shut down a bill if they want to.
Our bill first reached the Assembly Health Committee. So, the first questions were: Who is the committee chair? Who is on the committee board? What CFOs are in their districts?
And then we would reach out to the CFOs to try to reach out to their Assemblymember to try to get them to prioritize the bill.
After Assembly Health, it went on to Assembly Appropriations. Once again: Who is the Appropriations Chair? Who is on the board? What CFOs are in their districts?
And each step of the way, it was clear that if the chair didn’t like our bill, they could prevent it from moving forward, or try to change it. We heard some crazy stories of that happening with other bills in CA.
Peter’s advice was: never take anything for granted! Never assume you’ve passed the hard part. Any step of the process can trip you up, and you should do what you can to cater to the key players in each part of the process.
Our bill was very uncontroversial, all around. Ultimately, it never received a single vote against it in any part of the process. In other words, it passed unanimously each step of the way!
But there was one organization that initially expressed opposition: The California Conference of Directors of Environmental Health (CCDEH). The CCDEH is basically an association of the environmental health department directors from each county. They are in charge of implementing the cottage food law in each county.
And it was no surprise to get pushback from the CCDEH. They were the only opposing organization for the initial cottage food bill back in 2012.
Most states have opposition in some form. In many, the opposition is due to competition concerns from baker’s unions and such.
In some states, the health officials are advocates for the cottage food law, because nonperishable foods basically do not pose any risk to the public health.
But in states like California, the health or ag department officials form the opposition.
We knew that the CCDEH would be a powerful presence in this process, and we worked with them on a number of compromises before the first vote in Assembly Health.
By meeting with them and coming to agreements, we were able to change the bill to the point where they were no longer opposed.
This proved critical, because our bill was hitting all of the deadlines initially. This was mainly because we had submitted it so late. Any delay, and it would have died in committee!
Since our bill had no official opposition on the books when the bill came up for a vote, it breezed through the process. I know that Asm. Rivas and his office also did a good job behind the scenes to ensure that the votes were coming our way.
Once we got past Assembly Health, we landed on the Assembly consent calendar, which basically gave us a fast pass to the end of the Assembly process.
After it passed the Assembly Floor unanimously, we moved onto the Senate side of things.
California’s legislative session is a long process! Most states don’t take as long as CA with their bills, although some states have sessions that each take two years.
Passing this bill was a significant amount of work, but that work wasn’t evenly spread out through the 8 month process.
It was wait, wait, wait… hurry up! We often wouldn’t know when the next thing would happen with our bill, and then all of a sudden, it would get on the calendar for a vote the following week, and we’d get to work.
Here’s a brief synopsis of events:
- Mid-January: we submitted the bill
- Mid-February: it got assigned its bill number (AB 1144)
- Late-April: it passed Assembly Health
- Late-May: it passed the Assembly Floor & moved to the Senate
- Early-July: it passed Senate Health
- Late-August: it passed the Senate Floor
- Mid-September: it was signed by the governor
As you can see, nothing happened quickly. There were long waiting periods in between each step of the process, including the legislature’s summer recess at one point.
So once we got the bill into the session, what did we actually have to do to move it forward?
As I alluded to earlier, much of the work involved finding CFOs in the legislators’ districts and getting them to contact their representatives. The Institute for Justice did a lot of the backend work for this. In hindsight, I’m not sure that we needed to do as much as we did, but hindsight is 20/20. You never know what’s going to happen, and better to be safe than sorry!
We also had to find and prep testifiers for the health committee hearings on both sides. The Institute for Justice created a Google form to capture compelling stories. Thanks to Sonia Chang (Cali Granola), Kathy Sing (Kathy’s Kernels), and Laura Pellowski (Delectables) for stepping up to the plate!
We also had to submit letters of support for the committee hearings. I and a few other organizations submitted our own letters, but the Institute for Justice did most of the work for this. They created a Google form to let CFOs show their support, and then they compiled the resulting support letter.
We had a number of meetings, such as with the state health department (CDPH), the CCDEH, with the testifiers, or just amongst ourselves.
On my end, I was often keeping people in the loop, either through my email list, or through the Facebook group. I would let people know when we needed their support and when to take action.
I also was the most knowledgeable about the law itself and what we were trying to change. I provided stats & facts (that was for the initial draft) to get everyone on the same page.
Also, I was intimately involved in two amendments that were needed during the process.
Most of the technical steps of moving the bill through the session were handled by Asm. Rivas’ office. Kenneth and I communicated a LOT over the past 8 months, but a lot of stuff happened behind the scenes without me having to do anything.
It was pretty crazy at a number of points in the first few months, but then things calmed down.
Once we worked out the kinks, our bill received overwhelming support from legislators and ended up getting prioritized at the right times.
When I heard that the governor had signed it, and the final step was complete, I sort of sat back in awe at what we had accomplished.
It started as an idea in my head last year, but I had no idea where it would lead.
Although I started it, I most certainly can’t take credit for it passing. Thanks to the MANY people who helped make it a reality!
Many times, it seemed like we were a half-step away from failure, and that all of our effort would be (mostly) for nothing, and that we’d have to start all over again a year later.
But that didn’t happen, and somehow, someway, our bill made it through a long and complex journey!
Suffice it to say, I learned a ton along the way.
Was it more effort than I initially expected? Yes, I would say so.
But was it worth it? Absolutely.
Congratulations to California! I’d love to get things in Oregon changed ($20K per year?!?). I contacted Institute for Justice, and they told me they already have their states selected for the year to concentrate on. Feel like I’m going at this alone.
Hi Trina, glad to hear that you are interested in improving the law! I’m not surprised that IJ wouldn’t pick up your initiative at this point, as they usually meet each summer to discuss their plans for the following year. However, I know that Jenny Berg has also been interested in starting a bill this year. I just responded to her via email and told her about your comment, so hopefully she’ll message you via a direct message through Forrager. At the very least, I think you should be able to get something in the works by 2023.
David’s story is an awesome example of how an idea, coupled with the power of people can turn into real change in your community. Honored to work with you!
Thanks Jordan, you were a critical piece of the puzzle!
Thank You! David for all your time and effort for helping to revise the Cottage Food Law for California. This will definitely help all of us expand our business. If it weren’t for the obstacles you faced at the time we probably wouldn’t have the luxury to ship and use 3rd party delivery companies today. They say out of crisis come creativity. This surely was the case. Your baby girl is part of this as well and she is beautiful!
Thanks for the kind words Dee!
So inspiring – but a bit daunting. Working to get Washington updated. Thank you for your work and advocacy.
Daunting but rewarding! I know you are making strides in WA, which is much needed!
Congratulations! I’m so happy for you guys! It’s definitely a process, but well worth it in the end. Just remember, it doesn’t just stop with the bill. You have to keep an eye on the policy makers, and it never stops. Your baby is beautiful!
Thanks so much Shelley! You know better than almost anyone what it takes!