In most states, you can only sell certain types of homemade food. Most cottage food laws only allow nonperishable food items, but some are less restrictive. For instance, Wyoming’s food freedom law allows any type of food that doesn’t contain red meat, and home food processors in Virginia can sell anything that doesn’t contain any kind of meat. Conversely, some states are very restrictive, like Wisconsin (only allows canned goods) and Oklahoma (only allows some types of baked goods).
Non-Potentially Hazardous Foods (non-PHFs)
Most cottage food laws only allow “non-potentially hazardous foods” (non-PHFs), which are also referred to as non-TCS (time/temperature control for safety) foods. Non-PHFs are nonperishable foods that do not require refrigeration or heat to keep them safe. Potentially hazardous foods, like those with meat, dairy, and cooked vegetables, can grow harmful bacteria when left out of the fridge for more than a few hours.
Each state has their own definition of what constitutes a non-PHF, but generally speaking, these are food items with a pH level of 4.6 or below (acidic foods), or a water activity (aw) level of 0.85 or below (low moisture foods). Some states also include foods that have a specific combination of both levels (e.g. pH of 2.2 + aw of 0.90 = non-PHF). In some states, certain types of foods need to be tested in a lab to ensure their safety.
Although most states only allow non-PHFs, it’s important to note that most don’t allow all non-PHFs. For instance, although low-acid canned goods and meat jerkies don’t require refrigeration once produced, almost all states prohibit those items because they can be more dangerous if produced improperly. Some states may limit allowed foods to baked goods only, or to a specific list of food items, so you need to check your cottage food law to see what’s allowed in your state.
Types of Foods
Here are some common types of non-potentially hazardous foods (non-PHFs) that are allowed in most states:
- Bread: breads, muffins, scones, biscuits, bagels, donuts, tortillas
- Cake: cakes, cupcakes, cake pops, cake balls, icings/frostings/glazes without dairy
- Candy: hard candies, fudge, chocolate, caramels, brittles, toffee, cotton candy
- Condiments: syrups, honey, ketchup, mustard, nut butters, oils, vinegars
- Dry goods: baking mixes, soup mixes, dried herbs, spices/seasonings, coffee, tea, cereal, pasta
- Pastries: fruit pies, fruit tarts, fruit empanadas, cones
- Preserves: jams, jellies, fruit butters, marmalades, pickles
- Snacks: granola, crackers, pretzels, nuts/seeds, dried fruit, popcorn, trail mixes, health bars
- Sweets: cookies, brownies, dessert bars, pizzelles
Here are some foods that are often non-PHFs, but are not allowed in most states (or may require lab testing):
- Frostings with dairy, like meringues and ganaches (usually buttercreams without egg are allowed)
- Low-sugar jams, jellies, and preserves
- Savory or sweet sauces, like BBQ sauce or chocolate sauce
- Salsas, acidified foods, or low-acid canned foods
- Fermented foods, like sauerkraut or kombucha
- Carbonated drinks or some types of fruit juices
- Meat jerkies
Here are some common types of potentially hazardous foods (PHFs) that are not allowed in most states:
- Products with meat or seafood
- Products with milk, eggs, cheese, cream, and other dairy (minimal eggs or milk in baked goods are usually allowed)
- Perishable baked goods like cheesecakes, cream pies, or custards
- Fresh, cut vegetables and fruits
- Cooked rice, beans, vegetables, or potatoes
- Soups, pastas, or casseroles
- Tofu and soy-protein foods
- Garlic and oil mixtures
Remember that each state is different, so check your cottage food law for specifics about what is allowed.
If you simply want to sell whole, uncut fruits and vegetables, you can usually do so without needing a license from the health or ag department. In some states, food establishments (like restaurants and grocery stores) can only buy produce from “approved sources”, like state-registered or certified farms.
In most states, pet food cannot be sold with the state’s cottage food law; instead it must be produced in an approved and inspected facility. This includes pet treats or any kind of food that is not intended for human consumption.
In this case, it doesn’t matter how the food is made, what ingredients are used in it, or whether it is a non-PHF. It also doesn’t matter whether humans can eat the product… what is important is whether the product is intended for humans or animals.
Although it might seem backwards that dog food can be more highly regulated than human food, it is simply because human and animal foods are usually regulated by different government departments and/or different sections of law. Cottage food laws are usually written to override the food code (pertaining to humans) and don’t affect the laws concerning animal feed.
Selling Prohibited Foods
If you would like to start a business selling something that is not allowed under your cottage food law, then you probably cannot produce it at home and legally sell it. To start a business that sells non-cottage foods, you usually need to use a commercial kitchen and get the appropriate licenses/permits from the health or ag department.
Typically, a cottage food business cannot be combined with a commercial one; therefore, if there is anything that you want to include on your menu that is not allowed under your cottage food law (like cheesecake), you would need to skip the cottage food law and use a commercial kitchen instead. It also may be a good idea to keep things simple by limiting your business to the allowed foods until you have some success running a food business.