NJ Home Bakers face municipal pushback

The Cottage Food Regulations enacted in Oct 2021 allow entrepreneurs, like Jennifer Marich of Sweetest Moments, LLC in Manalapan, to sell baked goods, like these custom Tiffany's-themed bridal shower desserts, directly to consumers. (Photo courtesy of J. Marich/ credit to Melissa Gorman.)

Trenton- Last October, New Jersey home bakers rejoiced when the state became the last in the country to enact cottage food regulations. These rules, set forth by the Department of Health, allow bakers and other non-TCS food producers to apply for a permit for the direct sale of their goods, with a gross income up to $50,000. Since then, nearly 500 Cottage Food Operator Permits have been issued to residents throughout the state. Others haven’t been so lucky. The reason why lies at their own town halls.

The permit application includes a checklist, which among other items, asks bakers to submit paperwork for water testing and provide proof of food handler manager certification. But it also includes a query that is causing waves:

‘I have checked with my local municipal government and there are no local ordinances or zoning requirements that would prevent me from operating a home-based food business. ‘

This simple “yes or no” query, as it turns out, isn’t so simple. For many bakers, it’s become the first step into a maze of bureaucracy, misinformation, and a glaring lack of communication. The regulations were driven by interest groups throughout the state, but perhaps none so much as the New Jersey Home Bakers Association (NJHBA), who waged a years-long campaign for the rules across all areas of state government. The NJHBA stands on three main principles—economic development, freedom of choice for producers and consumers, and food safety—while seeking to make the sale of home-baked goods equitable and attainable for all New Jersey bakers. The municipal pushback some bakers are experiencing is taking that freedom out of reach.

What’s Causing the Issue?

New Jersey, despite its size, has 564 separate municipalities, each with an autonomous government and its own codes. In theory, regulations coming from the state should take precedence over these municipal codes, but that isn’t necessarily the case. Add in the non-specificity of the question on the permit, and many bakers find themselves being sent from department to department at town hall, seeking an answer.

Many bakers are now mired in red tape and requests for variances, which can come at a hefty application cost with no guarantee of approval. The NJHBA has been collecting stories from bakers around the state, many of whom preferred to stay anonymous for fear of reprisal from their towns. Some bakers shared that they can’t afford hundreds of dollars on attorney fees to take their cases before zoning boards. Another said that they were giving up because, in their town, arguing with city hall is simply not an option because no one ever wins. More than one baker has been asked to supply floor plans to their homes and apply for variances costing several thousand dollars. Others still have gotten a terse “no” without any further explanation.

The biggest issue at play seems to be a lack of communication, or more to the point, missed communication, between the state and the towns. A Jan 20, 2022, letter from the Department of Health to the NJHBA’s attorneys indicated that the state has no intention of reissuing a memo to the towns, in a clause that reads, in part, “The Department engaged in a fully public process as to the cottage food rules, held numerous public meetings, issued a press release, and held mass stakeholder meetings about it with the locals to provide as much guidance as possible.”

In other words, the towns should know about the regulations, but many claim that the first they are hearing of the rules is when bakers call to inquire about ordinances. One Sussex County mayor said that may be an honest oversight, given the volume of communication between the state and the towns.

“On any given day,” Alex Rubenstein, mayor of rural Byram Township, said, “We might get dozens of emails from various state offices. It could be a possibility that some people missed these memos.”

However, he doesn’t think that’s any excuse for towns to be outright shutting down people’s dreams of owning a home-baking business. “There has to be room for discussion,” Rubenstein said, “This is new for everyone, and owns, whether they got the original information or not, should know about this now and take appropriate action without being hostile. Small business is a good thing.”

Fighting Misconceptions

Two major misconceptions are fueling some of the town hall issues. The first is what seems to be a broad misunderstanding of the cottage food industry. Cottage food laws are explicitly designed to support not full-scale commercial enterprises but small business opportunities for those seeking to supplement their income without the hefty costs of renting or buying commercial real estate. Yet, some towns have indicated that hey consider home-based baking businesses to be on par with commercial or retail bakeries.

Zoning officers have expressed concerns about large volumes of customer traffic or large commercial raw materials deliveries in residential areas, but those concerns go against both the spirit and the letter of the rules, which have very specific language about sales venues and food storage. Still, some municipalities aren’t seeing it that way. As one Morris County official put it, “The state often adopts laws without consideration of the larger impact or local zoning ordinances.”

For those unfamiliar, a cottage food business can be described with an analogy between an artist owning a studio versus a gallery. An artist’s studio is the private space where they create their art, and the gallery is the commercial space where they sell it. Home bakers use their kitchens as their studios and then deliver or sell their goods elsewhere—no “gallery” needed. Based on reaction throughout the state, it seems that until every town can come to a solid understanding of the small scale that cottage food business truly entails, this first misconception will continue to be a thorn in the side of would-be baking entrepreneurs.

The second misconception, which is easier to dispute, is a mistaken belief that the regulations aren’t actually in place. This misunderstanding stems from Governor Murphy’s Jan 18, 2022, pocket veto of a bill meant to codify the rules enacted in Oct 2021. While the bill was indeed pocket vetoed, that measure had no impact on the regulations. The Department of Health continues to issue permits nearly every day based on completed, approved applications. Meanwhile, the NJHBA and other interest groups, like the New Jersey Farm Bureau, are pushing for the bill to be reintroduced in the new legislative session to complete that codification and correct an inaccuracy regarding the regulation of honey sales. While codification is not necessary for administrative rule changes, it is standard procedure for the legislature to do so. Although it was quelled with the pocket veto, the previous legislation passed unanimously through both the Assembly and the Senate. Interest groups expect a reintroduced bill to be met with the same approval.

Bakers Are Finding Recourse

Despite the misconceptions and municipal pushback, not every baker facing red tape at town hall is striking out. One Essex County baker, who prefers anonymity, found their town of Livingston to be reasonable about the process. Informed that the township is currently taking steps to amend its ordinances to include home baking businesses, they applied for and received their state permit.

“Once I have confirmation from the town,” they said, “I’m all ready to proceed with officially setting up my business and begin selling my cakes.”

In the Colonia section of Woodbridge in Middlesex County, cookier Vittoria Santorella became her own advocate after being run around to several municipal departments seeking approval. After receiving no satisfactory answers, she took to the town codes to find the relevant passages that would allow her to send her permit application to the state.

“I spoke with the clerk, the zoning department, the health department, and the planner,” Santorella said, “It took a lot of back-and-forth, but someone finally found the memo from October explaining the rules. I dug into the ordinances and found what I needed to prove I wouldn’t be violating town codes.”

Santorella also contacted the state’s Project Specialist, Rashida Hussain, to discuss her experience with town hall. The Department of Health appointed Hussain and Project Coordinator William Manley to oversee the enactment of the new regulations, and bakers with questions or concerns are welcome to contact them for guidance. The NJHBA is working alongside one of their former attorneys from the Institute for Justice to help people advocate for themselves in their hometowns. The association is also participating in educational events for bakers seeking to understand the ins and outs of the regulations. Two such virtual events are coming up in April in partnership with the Piscataway Public Library and Garden State Kitchen.

NJHBA board member Martha Rabello expressed frustration at the problems bakers are facing on a local level, but she is hopeful that giving people the tools to properly navigate their municipal waters will be an effective strategy. According to Rabello, the NJHBA is committed to its mission to make home baking permissible and equitable for all New Jersey bakers. It remains to be seen if towns will soften their stance or come to the realization that cottage food businesses are not commercial bakeries. For now, Rabello encourages people to sign up for the events and to send a copy of the regulations to their towns to ensure that everyone is aware of the permissions now afforded to home bakers.

“It’s also a good idea for people to look into what rights other home businesses have in their town, like consultants or attorneys, to ascertain if the same rights can and should be extended to home bakers,” Rabello said, “The more information people have, thebetter equipped they’ll be to be to handle conversations with town officials.”

(This is Part II of a series about the impact of cottage food regulations in New Jersey.)