California Cities Cannot Ban a Home Cottage Food Kitchen

A cottage food operation under Health and Safety Code section 113758(a) is an enterprise inside the registered or permitted area of a private home where the operator actually resides, with no more than one full-time equivalent cottage food employee not counting a family member or household member. The statute defines "private home" to include an apartment or other leased space, so renters are not excluded, and it defines the "registered or permitted area" as the home kitchen used for preparing, packaging, storing or handling cottage food products plus attached rooms used exclusively for storage. Section 113758(a)(1) makes a Class A operation direct-sale only. Section 113758(a)(2) lets a Class B operation sell both directly and indirectly, including offsite events and third-party retail food facilities permitted under section 114381.

Direct sale is defined broadly in section 113758(b)(4) and covers holiday bazaars, bake sales, food swaps, farm stands, certified farmers markets, community-supported agriculture subscriptions, in-person sales at the operation itself, and orders placed by phone, over the internet or by any other digital method. A direct sale may be fulfilled in person, by mail, or through a third-party delivery service, so a Class A operator may legally ship. Indirect sale, in section 113758(b)(5), is the three-party transaction that only a Class B operator may run: the consumer buys the home baker’s product from a retailer holding a valid section 114381 permit.

The sales ceiling is the number most often quoted wrong. The Legislature set $75,000 and $150,000 when it created the Class A and Class B split in AB 1144 (Stats. 2021, Ch. 178), effective January 1, 2022, and in the same sentence required that the gross annual sales for both classes "shall be annually adjusted for inflation based on the California Consumer Price Index." The statute text on the legislature’s own site is never restated with the adjusted figures, so the printed numbers are four years stale. The Department of Public Health publishes the running table: $80,475 and $160,950 from January 1, 2023 on a 7.3 percent CPI change, $83,614 and $167,227 from January 1, 2024 on 3.9 percent, $86,206 and $172,411 from January 1, 2025 on 3.1 percent, and $88,878 and $177,756 from January 1, 2026 on a further 3.1 percent. A California cottage baker planning around the $75,000 in the code is leaving roughly $13,878 of permitted revenue unused.

Getting open is a registration, not a business licence, and the two classes are treated very differently by Health and Safety Code section 114365. A Class A operation may not open for business until it registers with the local enforcement agency, normally the county environmental health department, and submits a completed self-certification checklist confirming six conditions: no cottage food work in the kitchen concurrent with domestic activities such as family meal preparation, dishwashing, clothes washing or ironing, kitchen cleaning or guest entertainment; no infants, small children or pets in the kitchen while products are being prepared, packaged or handled; clean equipment and utensils in a good state of repair; food contact surfaces, equipment and utensils washed, rinsed and sanitized before each use; preparation and storage areas free of rodents and insects; and no smoking in the cottage food area while products are being handled. The agency then issues a registration number. A Class A operation is not subject to initial or routine inspections at all. An inspector may enter the registered area only on the basis of a consumer complaint giving reason to suspect adulterated or unsafe food or a violation of the chapter, and may recover the cost of that inspection only if a violation is found. A Class B operation needs a permit, issued after an initial inspection, and is subject to no more than one inspection per year.

A registration or permit is nontransferable, is valid only for the named person, location, type of food sales and distribution activity, must be renewed annually, and a copy must be kept onsite at the time of any direct or indirect sale. Section 114365(b)(4) is the provision that saves a lot of paperwork: a registration or permit from one county is sufficient to operate throughout the state, so a Sacramento County registrant selling at a Los Angeles farmers market does not register again.

What may be sold is fixed by an approved list rather than by the operator’s judgment. Section 114365.5 requires the Department of Public Health to adopt and post a list of nonpotentially hazardous foods, and forbids any cottage food product that is potentially hazardous as defined in section 113871. The statutory floor for that list includes baked goods without cream, custard or meat fillings such as breads, biscuits, churros, cookies, pastries and tortillas; candy such as brittle and toffee; chocolate-covered nonperishable foods; dried fruit; dried pasta; dry baking mixes; fruit pies, fruit empanadas and fruit tamales; granola, cereals and trail mixes; herb blends and dried mole paste; honey and sweet sorghum syrup; jams, jellies, preserves and fruit butters meeting 21 C.F.R. Part 150; nut mixes and nut butters; popcorn; vinegar and mustard; roasted coffee and dried tea; and waffle cones and pizelles. The State Public Health Officer may add or remove items outside the Administrative Procedure Act, but a change takes effect only 30 days after notice is posted on the department’s cottage food program website, the notice must allow at least 20 calendar days for written comment, and a removal must be accompanied by a posted explanation of why the item is potentially hazardous. Because the whole scheme turns on nonpotentially hazardous food, hot meals fall outside it and into California’s separate microenterprise home kitchen operation permit.

Section 114365.2 adds the operating rules. The person who prepares or packages the products must complete a department-approved food processor course within three months of registering and every three years afterwards, and the course may not run longer than four hours. Every label must carry the words "Made in a Home Kitchen" or "Repackaged in a Home Kitchen" in 12-point type on the primary display panel, the common or adequately descriptive name of the product, the name of the cottage food operation, the registration or permit number together with the county of the issuing local enforcement agency, and the ingredients in descending order of predominance by weight where there are two or more. Advertising is covered too: any website, social media post, newspaper notice or other public announcement must show the county of approval, the permit or registration number, and the same home-kitchen statement.

The preemption in Government Code section 51035 is what stops a city undoing all of this through zoning. Where a city takes the use-permit route under subdivision (a)(3), the permit "shall be granted" if the operation complies with reasonable local standards on the four listed factors, any noise standard must be consistent with the local noise ordinance implementing the general plan’s noise element, the permit must be processed as economically as possible, and fees may not exceed the cost of review and permitting. An applicant may demand written verification of fees and the city must supply a breakdown within 45 days, and the application form itself must state that right. Subdivisions (c) and (d) close the building-code route: running a cottage food operation is not a change of occupancy under the State Housing Law or under local building and fire codes, and the home is still treated as a residence under the State Uniform Building Standards Code, so no city may demand a commercial kitchen build-out or a commercial occupancy reclassification as the price of a permit.

The registration is the gate: section 114365(a)(1)(A) says a Class A operation "shall not be open for business" unless it is registered with a completed self-certification checklist, and section 114365(a)(2)(A) says the same of a Class B operation without a permit. A registration or permit is valid only for the person, location, food type and distribution activity named on it, and only for its stated term "unless suspended or revoked for cause," so changing address, adding indirect sales, or handing the business to a relative all require going back to the local enforcement agency.

Enforcement sits with that county agency rather than with the Department of Public Health. For a Class A operator the practical exposure is complaint-driven: an inspector may enter the registered area only where a consumer complaint gives reason to suspect adulterated or unsafe food or a violation of the chapter, access is limited to the registered area and to enforcing this chapter, and section 114365(a)(1)(C)(iv) lets the agency recover its reasonable inspection costs only if the operation is found in violation. Passing the CPI-adjusted sales ceiling, $88,878 for Class A and $177,756 for Class B from January 1, 2026, is not a fine but a status change: the enterprise no longer fits the section 113758 definition of a cottage food operation and must move to a permitted retail food facility.

On the local side, a homeowner refused a permit or handed conditions that go beyond spacing and concentration, traffic control, parking and noise control should point the planning department at Government Code section 51035(a), and can force a written fee breakdown within 45 days under section 51035(a)(3) if the charges look inflated.