California Cooks Selling Directly to the Public

It used to be that if you liked to cook, you had to open a restaurant in order to make money off of your cooking. There’s the food truck route, of course, but soon, there will be another option in California: you can sell food you make in your home kitchen directly to the public.

If you’re interested in doing this, the law behind this is actually quite involved. I’ll mention some sections of the California Health and Safety Code below, but the basic idea involves the creation of something California calls a “microenterprise home kitchen operation” (CA Health and Safety Code section 113825). There are other code sections that will specify how a “microenterprise home kitchen operation” will fit in to the existing law that governs food, restaurants, food preparation, etc. And, of course, there are going to be laws that specify how microenterprise home kitchen operations will be regulated by the city or county they’re located in and several sections of the Health and Safety Code (e.g. Section 114367) will be devoted to that.

Microenterprise Home Kitchen Operation (MHKO)
This will be defined in section 113825 of California’s Health and Safety Code. An MHKO has nine criteria:

  • It doesn’t have more than one full-time employee. Family members and household members don’t count.
  • Food is prepared, cooked, and served on the same day.
  • Food is either (1) consumed onsite, or (2) offsite if the consumer picks the food up or is delivered
  • Food preparation does not involved anything requiring a HACCP plan or the production, sale, or service of raw milk or milk products. HACCP stands for “Hazardous Analysis Critical Control Point” and is discussed further in Health and Safety Code 114419, et seq. HACCP plans are involved so I’m not going to discuss them further in this post.
  • An MHKO cannot sell or serve raw oysters
  • No more than 30 meals per day or 60 meals per week can be prepared. This is the maximum under state law. Local laws passed by a city or county, for instance, can specify a lower number.
  • The MHKO does no more than $50,000 in annual gross sales
  • The MHKO sells only to consumers and not to wholesalers or retailers. MHKOs can sell their food via the Internet and that counts as a sale to consumers.

An MHKO is also exempt from quite a few laws that normally would apply to an establishment where food is prepared and sold.  I don’t think the intent is to exempt an MHKO from the basic requirement itself (e.g. employees must wash their hands), but rather to relieve the burden on a small business where the downside risk is low or limited. Still, if you’re going to patronize an MHKO, check out section 114367.1(b) for the 26 exemptions an MHKO enjoys relating to things like having handwashing facilities, having clean dishes and cups for second servings, no smoking signs, etc.

Lastly, MHKOs can be subject to extensive regulation (e.g. operating permits, etc) by the city or county they’re in. Each city and county will be different, of course, but state law will require that each MHKO submit in writing their standard operating procedure which will include descriptions of:

  • All types of food or food products that will be handled at the MHKO
  • The proposed procedures for food handling and preparation
  • Procedures, methods, and schedules for cleaning utensils and disposing of refuse
  • How food will be maintained at the temperatures specified by law to keep it safe and fresh
  • Days and times the facility will be used as an MHKO.

As always, this post was not meant in any way, shape, or form to be a comprehensive discussion. I only mean to summarize the main points and introduce terminology and citations that I think most people will be interested in. If you have an involved situation or you actually want to open an MHKO yourself and you have questions, I highly recommend you find an attorney in your area to assist you.

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Andy Chen

Andy I. Chen is a lawyer licensed to practice law in California and New York. Andy maintains offices in Los Altos, California and Modesto, California. Under the New York Court of Appeals' 2015 decision in Schoenefeld v. State of New York, Andy does not accept cases from those in New York state. He does, however, know many lawyers in New York state and would be happy to make a referral.

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