Massachusetts Cottage Food: A Local Board of Health Permit, Not a State Law

The instrument is the State Sanitary Code, Chapter X, published as 105 CMR 590.000 and adopted by the Department of Public Health under M.G.L. c. 94, §§ 146, 189, 189A, 305A and 305B and M.G.L. c. 111, §§ 5 and 127A. The current version is dated 10/05/2018. It works by adopting the 2013 Food Code, not including Annexes 1 through 8 and as amended by the Supplement to the 2013 Food Code, and then adding Massachusetts-specific provisions on top.

The first thing to understand is that Massachusetts does not treat a cottage food kitchen as something outside the food establishment system. The definition of Residential Kitchen in 105 CMR 590.001 is simply a kitchen in a private home, and the definition of Food Establishment expressly names a residential kitchen for a cottage food operation as one of the operations that is a food establishment. That single drafting choice is why the answer here is a permit rather than an exemption. There is no product list of approved cottage foods, no annual sales cap and no labelling statute, because Massachusetts never built a separate cottage food scheme to hang them on.

The exemption in 105 CMR 590.010(F)(1) is genuinely narrow. No permit from the board of health is required if an on-farm or off-farm cottage food operation only sells whole uncut fresh fruits and vegetables, unprocessed honey, pure maple products, or farm fresh eggs stored and maintained at 45 degrees Fahrenheit, 7.2 degrees Celsius, or less. The word "only" governs: add a jar of jam or a tray of brownies to a stand selling honey and maple syrup and the exemption is gone for the whole operation.

Everything else runs through 105 CMR 590.010(F)(2). A cottage food operation shall not sell or serve food unless it has been approved to do so and has obtained a valid permit from the board of health. The board reviews the application as specified by administrative guidelines of the Department and may approve an application that conforms with those guidelines and with the applicable sections of the 2013 Food Code. This is municipal permitting: the board of health in the city or town where the kitchen sits decides, so requirements and fees vary between Massachusetts municipalities even though the regulation behind them is statewide.

The permit itself is described in the Massachusetts amendment to Food Code section 8-304.25, added by 105 CMR 590.008. There shall be one permit form for each food establishment, stating whether it is annual, semi-annual, seasonal or temporary, and naming each permitted operation. The list of operations includes, as its own category, "Residential kitchen for retail sale; cottage foods," alongside food service, retail food, mobile and pushcart, temporary, caterer, and residential kitchen for bed-and-breakfast. The permit must also state the name and address of the establishment, the name of the permit holder, the expiration date, and any restrictions on the type of operations allowed.

One limit catches people who plan to grow the business. Under 105 CMR 590.010(A)(1) each caterer must have as its base of operations a food establishment complying with 105 CMR 590.000, except that a facility holding a permit as a residential kitchen shall not serve as the base of operations for a caterer. A Massachusetts cottage food permit therefore cannot be used to launch a catering operation from the same home kitchen.

Two further residential kitchen carve-outs sit in the definition of food establishment rather than in the cottage food section, and both are worth knowing. A residential kitchen is not a food establishment if only food that is not time or temperature control for safety food is prepared for sale or service at a function such as a religious or charitable organisation's bake sale, where allowed by law and where the consumer is informed by a clearly visible placard at the point of sale that the food was prepared in a kitchen not subject to regulation and inspection. Nor is a residential kitchen that prepares food for distribution to a charitable facility under M.G.L. c. 94, § 328, and 105 CMR 590.008 adds that a nonprofit entity distributing or serving food without charge, or at a charge sufficient only to cover handling, may not be charged a permit fee.

Finally, do not confuse the retail permit with the wholesale licence. M.G.L. c. 94, § 305C requires an annual Department licence for every person engaged in the business of processing or distributing food for sale at wholesale, applies to one place of business only, requires an inspection of the premises before the licence issues, and directs the Department to send a copy of the licence to the board of health of the city or town. That is the wholesale track. A cottage food operation selling direct to consumers is permitted by its board of health under 105 CMR 590.010(F); a home producer that starts supplying shops or distributors is in section 305C territory instead. Section 305C also excludes farmers selling raw farm products including eggs, and purveyors of fresh fruits and vegetables, which mirrors the products the cottage food exemption lets through.

000. 016(A), any person who violates any provision of the regulation shall, upon conviction, be fined not more than $100 for the first offense and not more than $500 for a subsequent offense unless a different penalty is set by statute. 016(B), failure to comply with an order issued under the regulation carries the same fines, and each day's failure to comply is a separate offense. c. 94, § 305A punishes preparing, keeping, storing, serving or distributing food for sale under unclean, unsanitary or unhealthful conditions by a fine of not more than $100 for a first offense and not more than $500 for a subsequent offense, and applies the same fines to any violation of a regulation adopted under it.

Beyond fines, the permit itself is at risk. 014(A), the board of health or its authorized agent may summarily suspend a permit without a prior hearing where an imminent health hazard is found to exist, provided a hearing is afforded within three business days of a request. A summary suspension order must be in writing, posted at a public entrance and given to the permit holder, must state the specific violations and require operations to cease immediately, and takes effect immediately upon posting. 015.