Spring 2019 Issue
OF KITCHENS AND HEROES
Years ago, I met a lovely woman who had exchanged her McMansion in the Midwest for a railroad apartment in Manhattan. Which also meant that she had spurned her glorio...
Home Bakers Unite - Fighting New Jersey's Ban on a Cottage Industry
Growing up in Brazil, Martha Rabello, who now lives in Fanwood with her husband and three young children, loved the coffee and sweets that her grandmother served every day at 3pm.
After settling in the United States in 2005, Rabello attended the pastry program at Manhattan’s Institute for Culinary Education, graduating in 2009. She subsequently developed two coffee hour– inspired cookie flavors, one featuring corn flour and fennel seed and the other featuring coffee and dark chocolate. She set about securing commercial kitchen space to produce the treats for sale online and at local cafes under the name Cherryspoon. Now, due to New Jersey regulations that forbid her to work in her more affordable home kitchen, she finds herself out of business. Today Rabello and others are fighting a long legal battle with the state, one that now includes representation by the Institute for Justice, based in Arlington, VA, a nonprofit, libertarian, public-interest law firm.
“The profit margin for cookies is very small,” says Rabello, and kitchen rentals can cost up to $30 per hour. When she began her family, the added cost of daycare made the whole project prohibitive. “I wasn’t making any money, so I had to stop.”
This is when Rabello discovered that, at the time, New Jersey was one of the few states that prohibited home bakers from selling their products. If she had attempted to sell her product from her home kitchen, she could have faced a $1,000 fine. “I even heard about someone who was threatened with jail time,” she says. The only legal exception is for those selling homemade baked goods for charity.
Nearly a decade ago, a bill was written that would challenge the current state of the cottage food industry in New Jersey, but the legislation has languished in the Senate, largely due to the efforts of Sen. Joseph Vitale, who serves as Chairman of the Health, Human Services and Senior Citizens Committee. The Middlesex County Democrat’s apprehensions about food safety and the need to protect commercial bakers from competition have continuously stalled any progress toward a resolution.
“The volume you produce in a commercial kitchen is never going to be the same as what you produce in a home kitchen, so I’ve always felt that competition is not a real issue,” says Rabello.
Regarding food safety, she states that there has not been one documented case of health concern with home-baked goods across the country. The Institute’s legal team did extensive research and found no reports across the country of anyone getting sick from home-baked goods. In addition, this has been confirmed by government experts in both the Wisconsin and New Jersey cases.
Working with fellow New Jersey bakers Elizabeth Cibotariu and Heather Russinko, Rabello helped form the New Jersey Home Bakers Association, born in 2011 as a grassroots community working to legalize the sale of non-potentially hazardous, edible home-produced goods and to renew the battle to bring this bill to fruition. The association now has more than 200 members and nearly 5,000 online followers.
Cibotariu, of Jackson, was born in the United States but lived in Romania with her grandmother until the age of seven. She served in the Iraq War and is an Army helicopter technician in the National Guard. She loves to make cakes, cupcakes and cake pops for gatherings of friends and family.
“I have a very strong passion for the art of cake decorating, as well as for the freedoms [that] entrepreneurs in the US are afforded,” she says. “When I came upon the ban, I was frustrated. My sense of righteousness and equality, the reasons I signed up in the military, the freedoms I protect were not being represented in New Jersey’s home baking ban.”
Russinko is a single mom and domestic abuse survivor working in corporate account management and raising her teenage son in Franklin. Finding solace in baking, she dreamt of selling her cake pops to provide things for her son that are almost impossible in a single income household. “Simple things: like a random vacation, YMCA membership or a college fund. Perhaps just to be able to pay my bills and count a little less on miracles,” she says.
The Institute’s National Food Freedom Initiative, designed to empower food entrepreneurs, was launched in 2013 and, by that point, had already won constitutional challenges to Wisconsin’s prohibition on selling home-baked goods and Minnesota’s restrictions on the right to profit from both baked and canned goods produced at home. Their efforts left New Jersey with the dubious distinction of being the last state to recognize and monitor the cottage food industry.
In 2016, the institute took up the cause of New Jersey’s home bakers and agreed to represent the group in their fight. Erica Smith, lead attorney on the institute’s case in New Jersey, is a strong proponent of economic liberty, or, as she explains it, “the right for people to earn an honest living without having to deal with these irrational laws that get in their way.” “New Jersey is actually the only state to ban all homemade foods.”
Key to the fight is that this challenge regards only foods that are shelf-stable and don’t need refrigeration, making them fall into the category of what is considered potentially non-hazardous.
“I’m very happy to be one step closer to sharing my gift for baking once again. It is time for the Garden State to catch up with the rest of the country.” —Martha Rabello
“These are goods that have a low moisture content,” says Rabello, so unlike custards and mousses, they are not at risk for bacterial contamination.
Every state’s cottage food laws vary. Some locales require regular inspections of home kitchens, others require just a license and yet others demand that all items for sale be tested. The New Jersey Home Bakers Association does recognize the need for rules and parameters to ensure public safety. After meeting with Sen. Vitale, association members suggested that all professional home bakers be required to earn national certification in food safety.
“We always wanted to talk, but we always got a hard ‘no’ back,” says Rabello.
Although New Jersey law does not require most bakeries to identify possible allergens in their products, the group is also willing to discuss labeling with ingredients and warnings as other states do.
The ban affects underrepresented segments of the population, says the legal team, whose study found that most people seeking to affordably sell their food products are women, mothers in particular, and retirees.
“New Jersey’s home-baked goods ban has nothing to do with safety and everything to do with politics and protectionism,” says Smith. “This ban is hurting moms and hobbyists who simply want to use their talents to support their families.”
In one of its most recent forms, the bill allowed for a $50,000 cap on any income made from the sale of home-baked goods.
Repeated efforts to reach Vitale for comment have been unsuccessful. In 2016, he told the Associated Press that commercial bakers were concerned about being undermined. “If the cap is $50,000, that’s potentially $50,000, or some portion that’s out of the bottom line of a small baker.”
In April 2018, the bakers made a leap forward in their fight when Judge Douglas Hurd of the Superior Court of Mercer County denied a request of New Jersey’s Health Department to dismiss the lawsuit. The lawsuit will move forward, and the next step is for the parties to conduct discovery, move for summary judgment and ask the court to decide whether New Jersey unconstitutionally limits the home bakers’ freedom by imposing unreasonable barriers on their right to earn an honest living, while protecting commercial bakers from competition.
“I’m very happy to be one step closer to sharing my gift for baking once again,” says Rabello. “It is time for the Garden State to catch up with the rest of the country.”
The group does not anticipate a ruling until sometime later this year but Smith is cautiously optimistic. “If we win this lawsuit, it is going to be great for New Jersey home bakers, and it’s going to be great for everybody who has a sweet tooth in New Jersey and just wants to be able to buy fresh, local treats.”
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