If It's Illegal To Sell Cakes From Home, Can I Do This?
Business By MrsNancyB1 Updated 22 Aug 2009 , 11:16pm by Larkin121
You also said that you're not "operating" anything, but also said that if you got a request from a church friend to do a cake then you'd do it and get paid for it. That's operating a business, albeit on a small scale.
No, it's not. Just because people say so around here all the time doesn't make it a fact.
I think that we need to be aware that a long conversation with someone doesn't supercede the laws as they're written for your state.
Who said supercede? Who knows the public health laws in my state better than my own HD Rep? She told me how her department interprets them. A few cakes for friends and family do not make me a "food manufacturer".
If you want to take the risk, then go ahead. I don't want to, so I follow the laws and get my licenses and insurance.
I follow the laws too.
It's not legal or illegal for Kelly to make a cake out of her home under those conditions she lists because it is a non issue in her area. (Mine too.)
In other words, the Health Department does not even cover these situations. They are not in their purview. No jurisdiction.
If she's not doing it for the general public there is nothing there to govern, guys.
Land of the free, home of the guppy
(who eat their young or in this case fellow cakers)
meant in a poke in the ribs way
Kelley is so conscientious she know exactly where the law begins.
She gets an A+ in my book.
It's bad enough so many of us cannot do what we want to do.
Kelley, for what it's worth, you have my permission/blessing to do the little bit you are allowed to do.
I mean not that you needed it either.
People get ticketed for jaywalking all the time thousands a year especially in other countries.
It is not illegal for me to make a wedding cake for my daughter or my son or my neice or any of my family even if you think and say it is. Huff & puff and blow my house down. 
This sounds like the Regulator and the Moderator War being discussed in the cake lawsuit thread in the business forum. 
I've roughly followed the posts back and forth on this topic.
I called the HD yesterday myself, and gave the officer a very specific (and true) example.
I told him that I have a close, personal friend of mine who is already planning a home Christmas party, where there will be about 30 guests. My friend asked if I could design and bake a cake for her, and that she would pay me for it. I asked the officer if it's legal for me to take the money.
Of course the officer couldn't come straight out and say that I *could* take the money, but he did re-iterate that it's illegal to sell my cakes to the public. That's where it got a little dicey. We ended up getting into a discussion about the public vs. private friends.
At the end of our lengthy conversation, he told me that I'm doing it for a friend, and if that friend wants to offer me money because I helped her, then that's between me and my friend.
I then emphasized that I understood that it is not OK for me to distribute a business card, bake for people who weren't direct friends etc. So basically the HD officer told me the same thing that Kelleym was told.
FTR, I also discussed what needed to be done for me to go into business legally, and he said that I needed a commercial kitchen and then I could sell legally. This is stuff that I already know, but I wanted it to be clear to the officer that I do not want to break laws, especially if a cake business could possibly be in my future.
To me I believe it means they are not out to micro-manage us and invade our kitchens and Big Brother the buttercream which is refreshing all things considered.
Didja see where the little 10 year old got a ticket and was fined for having a lemonade stand in New York City? They rescinded the ticket.
People get ticketed for jaywalking all the time thousands a year especially in other countries.
It is not illegal for me to make a wedding cake for my daughter or my son or my neice or any of my family even if you think and say it is. Huff & puff and blow my house down.
This sounds like the Regulator and the Moderator War being discussed in the cake lawsuit thread in the business forum.
Just a Q, isn't illegel for you to sell it to them though?
Mike
Just a Q, isn't illegel for you to sell it to them though?
Mike
It depends on the exact wording of the law, and how the local HD interprets and enforces it. That's why it's always better to call and get the verdict directly from the horse's mouth rather than listening to what "they" say "on the internet".
They just slapped a $50 fine on a 10-year-old in CA for having a lemonade stand. If the kid can't make a little bit of change by selling lemonade, I doubt there's a loophole in the laws there to let you sell cakes from home.
Theresa 
They just slapped a $50 fine on a 10-year-old in CA for having a lemonade stand. If the kid can't make a little bit of change by selling lemonade, I doubt there's a loophole in the laws there to let you sell cakes from home.
Theresa
It was NY and she went to a public park to sell it...if it was in front of her house it would of been ok.
No there was another one, I just read about it today, and it was in California.
Theresa
It's not the same thing, the comparison doesn't make sense. Our OP was specifically asking about being paid by friends and family for her cakes. If the boy had been "selling" lemonade to his grandma and grandpa, there would not have been an issue or a news story.
MrsNancyB - I'm very glad you called your HD and got some clarification. I encourage everyone to do that.
Well clearly there are some of us here who will never agree so let's just agree to disagree and move on.
This is sort of like the patient who is told by 4 doctors that they need major surgery to survive....but they go searching for that one doctor that will tell them they don't need the surgery. They go with the answer they WANT to hear instead of the answer they SHOULD have listened to.
My position has always been and will always be that I have worked too damn hard to build my Salon business and to build my dream home to risk losing it for a lousy $500 profit on a cake. That's the reason we moved to MA so that I could pursue this dream.
Whew....I had to EDIT this baby after I noticed all the spelling errors....must be this darn humidity we're having.
I just read through this thread and wanted to point something out. Someone suggested earlier in the thread that if anyone didn't like the laws in their state, they should try to get them changed. Kelleym has been doing just that here in Texas for quite some time. She worked extremely hard to get the cottage law (sorry, can't remember the exact name of the bill) drafted, introduced to the Texas legislature, passed out of committee and onto the floor for a vote. Texas is a crazy state in that department...when time runs out for the legislature, it's over...any bill that wasn't voted on has to wait for two years until the next session. We ran out of time, but not for lack of effort, especially on her part. Thanks, Kelleym! I'm hoping we'll be successful in 2011.
So they go with the answer they WANT to hear instead of the answer they SHOULD have listened to.
So in this case I guess YOU would be the person with the answer I SHOULD listen to, rather than my county HD rep? Zoiks, I guess I should call her and tell her how wrong she is. 
"Hello, Ms. Inspector? I can't actually sell cakes to people I know - someone on an internet message board from Massachussetts told me so."
I just read through this thread and wanted to point something out. Someone suggested earlier in the thread that if anyone didn't like the laws in their state, they should try to get them changed. Kelleym has been doing just that here in Texas for quite some time. She worked extremely hard to get the cottage law (sorry, can't remember the exact name of the bill) drafted, introduced to the Texas legislature, passed out of committee and onto the floor for a vote. Texas is a crazy state in that department...when time runs out for the legislature, it's over...any bill that wasn't voted on has to wait for two years until the next session. We ran out of time, but not for lack of effort, especially on her part. Thanks, Kelleym! I'm hoping we'll be successful in 2011.
You're welcome - and we WILL. 
My position has always been and will always be that I have worked too damn hard to build my Salon business and to build my dream home to risk losing it for a lousy $500 profit on a cake. That's the reason we moved to MA so that I could pursue this dream.
dkelly I do think you are still mixing up the two different aspects of this concept that often get commingled when discussing "doing cakes under the radar." Making an occasional cake for your mom, your sister and/or some close friends, and allowing each to pay you for it, does not constitute "running a business". As stated earlier, I think this is the intent behind these HD people who admit that they aren't going to go after people who do this. They recognize that they are talking to people who are NOT running a business.
To offer up an analogy: every time our buddies host a BBQ and ask all of us friends to reimburse them for the cost of food and booze, are they really operating an illegal food-service establishment and "selling" liquor without a license? If your son is great with cars and he fixes your leaky gasket, and you pay him for his time, is he now "operating a repair shop" in your driveway?
My sister in law is a hairstylist, but I don't believe that all of the times she gave my grandmother a haircut - and my mother slipped her a $20 bill - that she was operating her business out of my mom's house and that they should all be subject to business taxes and legal regulations FOR THOSE INSTANCES. Should my mom have been fined for operating a hair salon in a residential district? Is there truly no difference between providing a service for a family member versus for the general public? According to the HD that kelleym spoke to, there IS a difference where she lives.
I DO agree that liabilities exist when you provide food for others (whether or not they pay for it)...but that still doesn't mean you are operating a business. Even if nobody pays me for the bridal shower cake I make for my friend, I still risk getting everyone at the party sick, as does the friend who made the crabcakes, and the one who volunteered the caesar salad (Lord help me I hope she didn't use raw eggs in the dressing). Being reimbursed for the cost doesn't change that liability nor does it make any of those ladies "a caterer." If you are afraid of your friends or your brother suing you if your food makes them sick, you should definitely not be making food for your friends - for money or for free. I'm not being a smartypants here; I'm quite serious. Goodness knows there are people out there who WOULD do that and anyone who ever feeds another person needs to stay alert in case those people are in your circle of friends.
Please don't misunderstand - I totally agree with all of the professionals here who advise against trying to run an actual cake decorating business by finding loopholes to get out of being licensed and insured. I absolutely agree that trying to actually bake for the public as a business, under the guise of some other operation or "not really a business", is not acceptable, neither ethically nor legally. And I'm not sure I understand the HD folks who specifically state that as long as you don't advertise, they won't go after you even if you are soliciting the general public for orders 
except as explained above (i.e. they are not offering their permission as much as they are admitting that they cannot possibly police people that they cannot find).
But again, my point is that THAT is a completely different situation than the ones kelleym is trying to outline.
I hope that my post makes at least an ounce of sense!
So they go with the answer they WANT to hear instead of the answer they SHOULD have listened to.
So in this case I guess YOU would be the person with the answer I SHOULD listen to, rather than my county HD rep? Zoiks, I guess I should call her and tell her how wrong she is.
"Hello, Ms. Inspector? I can't actually sell cakes to people I know - someone on an internet message board from Massachussetts told me so."
I think it's safe to say that you know the law in your state probably better then anyone. I'm not telling you to stop selling cakes so I don't understand why you're being so defensive.
Ceshell...your post makes perfect sense and I completely agree.
dkelly...I'm not sure why you disagree with the HD so vehemently on this issue. In this particular situation, where someone wants to be reimbursed for making a cake for family or friends, there's no potential harm to your business or the general public, so why the fuss? Someone making 1 or 2 cakes a year is not "in business" even if they are getting reimbursed/paid.
I do agree with you (dkelly) about people seeing something on an internet message board and taking it for fact. That drives me nuts! Clearly, the advice being given here is to check with the local HD to see what the regulations are in your area. No one is suggesting that the OP find a loophole in order to make a cake or two.
My position has always been and will always be that I have worked too damn hard to build my Salon business and to build my dream home to risk losing it for a lousy $500 profit on a cake. That's the reason we moved to MA so that I could pursue this dream.
dkelly I do think you are still mixing up the two different aspects of this concept that often get commingled when discussing "doing cakes under the radar." Making an occasional cake for your mom, your sister and/or some close friends, and allowing each to pay you for it, does not constitute "running a business". As stated earlier, I think this is the intent behind these HD people who admit that they aren't going to go after people who do this. They recognize that they are talking to people who are NOT running a business.
Ceshell I guess I'm the one not being clear........I'm not debating the "under the radar" point.
I'm saying that these HD reps who are bending the very laws that they are paid to enforce are wrong to mislead all of our fellow home bakers out there. Their "word" really doesn't mean a darn thing, the written law is what's important.
Of course that's just my opinion.
dkelly...I'm not sure why you disagree with the HD so vehemently on this issue.
The reason I disagree with this particular HD rep is because unless the information she is giving out is in fact "law", she shouldn't be giving it out. To tell a home baker that "she" won't go "after them" is irresponsible on her part.
Now, if it's in writing that's a different story........everyone's butt would be covered. But, based on what I've read here, this information was "verbal" not "written law". There's a big difference.
That's why I disagree.
I'm saying that these HD reps who are bending the very laws that they are paid to enforce are wrong to mislead all of our fellow home bakers out there. Their "word" really doesn't mean a darn thing, the written law is what's important.
I have to disagree (again, sorry). The job of the HD rep is to interpret and enforce the law. If the written law was the only thing we needed in this country, then we wouldn't have a judicial system...it would just be law enforcement.
I'm saying that these HD reps who are bending the very laws that they are paid to enforce are wrong to mislead all of our fellow home bakers out there. Their "word" really doesn't mean a darn thing, the written law is what's important.
It's undoubtedly different everywhere, but in the smaller cities and the less populated counties here, there may be just one health inspector for the entire city or county. If that one person says that letting your relatives and friends pay you for an occasional cake is not a business and is not subject to licensing requirements, then their word is enough, because they're the only person in the city or the county with the power to write you a ticket or give you a cease and desist order. In all the c-stores I worked in, with all of the different health inspectors I encountered, none were state inspectors, all were either from the city or the county. I think they do it that way because individual cities and counties may have requirements stricter than the state minimum requirements.
Now, if I called the health department where I live, and spoke to one person who gave me the green light to make cakes for friends and family for money, then there might be another 20 people out there with the ability and the inclination to give me a ticket. If I lived a mile away in Hollywood Park, and I called and asked the same thing and the one health inspector for the whole city gave me the go ahead, I would know that it was fine. San Antonio couldn't fine me for selling in Hollywood Park and the health inspector there had already said it was fine, so he wouldn't be coming after me (just an example, I do not live there and did not call them, so if anyone there wants to know, they'll have to call and ask)
I'm saying that these HD reps who are bending the very laws that they are paid to enforce are wrong to mislead all of our fellow home bakers out there. Their "word" really doesn't mean a darn thing, the written law is what's important.
I have to disagree (again, sorry). The job of the HD rep is to interpret and enforce the law. If the written law was the only thing we needed in this country, then we wouldn't have a judicial system...it would just be law enforcement.
I'm not sure why you disagree with me then if you say "the job of the HD rep is to interpret and enforce the law". That's what I'm saying.
however.....this rep is telling someone that she "won't go after the home baker" if they only sell to family/friends, even though the law in TX clearly doesn't allow home baking legally.
Unfortunately we may not all agree with the written laws but they are there for a reason as flawed as they may be. I guess that's why so many are working so hard to get these very laws changed. Hopefully, they'll be successful.
Hey, just to throw a thought in the pot too, and this is totally just a thought... one day owning a cake business is not like one day being president.
When someone goes to give you a loan, if someone comes forward and says, "ooh but she sold me a cake when she wasn't a legal business" I just really don't think that will matter... I could totally be wrong.
I sold a lot of cakes before I got inspected and licensed, even though I knew at any time I could call the lady to do it, I just kind of slacked on it, smack me if you want. Anyhow, she came to do the inspections and I showed her my book, explained my business... and she was like, man those are some cool cakes! And then when I wanted to pay for insurance, I told hem exactly what I DO, and they were cool. No slap on the wrist, no backlash, just moved forward to being legal.
Now, I'm not saying, go and sell all you want until you open your business one day, I'm just saying that selling some holiday cakes to your friends and family, and maybe even a friend of a friend will probably not hold you back. I would even venture to say that if you were caught, fined, and shut down, that would still not effect your ability in the future to lease a place and get inspected (unless of course the fine took all of your savings...)
Alllll speculation...
the law in TX clearly doesn't allow home baking legally.
That's not actually how it's worded, and I linked the actual verbiage upthread.
§229.167 (E)(10) Private homes and living or sleeping quarters, use prohibition. A private home, a room used as living or sleeping quarters, or an area directly opening into a room used as living or sleeping quarters may not be used for conducting food establishment operations.
My county's health department does not consider me to be a Food Establishment if I make cakes for my friends and family. It doesn't matter how you interpret it (and you obviously interpret it in the most narrow way possible).
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