Selling home cooked meals: state says yes, Alameda County still to decide

It’s Tuesday night and Hai Ngoc Lam’s neighbors are hungry. They start arriving at 5 p.m., walking the few blocks from their own homes or parking in the spaces Lam and his husband, Joe Acanfora, have left empty in front of their North Oakland duplex. One by one, they walk through the wire gate, up the front steps, and push open the front door that’s been left open—just a crack—for their arrival. Many have been repeating this Tuesday night ritual for years, but for any newcomers, an arrow on the door points up. Eating Saigon, it says, is upstairs.

They come for the home cooked bún bò huế (beef noodle soup), bánh mì hấp (steamed baguette topped with meat and vegetables), phở gà (chicken noodle soup), or any number of other traditional specialties that Lam—a chef who immigrated from Vietnam in 2013 with his American husband—prepares each week. The neighbors have become friends over the years, but they’re also paying customers. Between 10 and 35 of them order on Lam’s website each week, pay using PayPal, and take food home either in their own Tupperware or the compostable takeaway containers that Lam and Acanfora provide.

It’s not exactly a restaurant. And it’s not exactly legal—yet. But Lam’s neighbors don’t really care. It’s like eating out of your mother’s kitchen, Lam says, which also hasn’t been inspected by the health department or granted a permit. In fact, he says, food made in a home is better than any made in a restaurant. “Every day you take care of your kitchen, so that’s why my customers really love it,” he says. “The food from here, from other cooks, I’m sure [is] much, much better than the restaurant. Why? They cook for their family. They cook for love.”

County health department officials across the Bay Area and California disagree with Lam’s sentiment, but state lawmakers are ready to allow cooks like Lam to continue selling meals prepared in their home kitchens. The Homemade Food Operations Act—AB 626—passed unanimously in the state senate and assembly this summer, and Governor Jerry Brown signed it into law on September 18, creating a pathway for counties to offer permits to home chefs. The law will take effect in January, but counties can still opt out by not creating local permits.

In counties that allow them, home cooks could apply for a special microenterprise home kitchen permit, which would not carry the same restrictions on hand washing, sinks, ventilation, and animals that most other food facilities permits require. The permits would be limited to businesses with no more than one full-time employee and less than $50,000 in gross annual sales. Counties could place further restrictions on home cooking operations in regards to the types of food allowed and the days and times a kitchen can operate.

The law will allow home cooks who are already making and selling food—like Lam and an estimated 50,000 other home cooks across the state—to legitimize their businesses and no longer risk criminal sanctions. Violating California retail food laws is a misdemeanor that can carry fines and up to six months in county jail.

It will also allow home cooks to test early-stage food business ideas without needing to invest in a commercial kitchen. Building a commercial kitchen can cost hundreds of thousands of dollars. Renting one can get pricey too, especially in this low-margin industry: at Kitchener Oakland—one of the most affordable options and one designed specifically for microentrepreneurs—renting a shared kitchen space costs $23 an hour for 10 hours per month. Rates there go down with increased use; several similar kitchens operate in Oakland.

Supporters say the new law will make it easier for the people who sell food from their homes (mostly women, immigrants, and people of color) to create or legitimize businesses as soon as permits become available in their counties. “In our view, this will become the new lowest-barrier-to-entry way to get your start in the food world,” said Matt Jorgensen, founder of the C.O.O.K. Alliance, an advocacy group for legalizing home-cooked food sales, and the leading voice pushing for the bill.

Jorgensen was also co-founder of Josephine, an Oakland-based online meal sales app that connected home cooks with local customers before it was shut down in 2016 after a sting operation by Alameda County Environmental Health and Berkeley Public Health officials over concerns about food safety in unpermitted kitchens. The company continued operating in Portland and Seattle for a short time, but closed all operations earlier this year.

State law currently requires that food for sale be prepared in a certified commercial kitchen that has been inspected and meets requirements for hand washing, storage temperatures, sinks, ventilation, waste water systems and more. Since 2012, exemptions have been made for “Cottage Food” operators—cooks in registered and permitted home kitchens preparing small amounts of packaged foods deemed low-risk for food-borne pathogens. The meals sold through the Josephine platform—by Lam and about 1,000 other California cooks—did not qualify for this exemption.

Unlike other Josephine home cooks, Lam did not receive a cease and desist order during the sting, because he was on a long vacation at the time. When the couple returned, “our neighbors begged us to keep cooking for them,” Acanfora said. And since Lam loved cooking and the income he received from it, he decided to continue, despite the legal risk of doing so.

Operating on their own, they weren’t “public,” Acanfora said. And since they “just cooked for people we already knew,” they weren’t too worried about being shut down. After Lam received American citizenship in 2016, Acanfora said they were less concerned with the consequences of selling food than they had been when Lam had only a green card. “Worst case, we stop,” Acanfora said. “I don’t think we’re really going to be imprisoned, and I can’t imagine the fine is too crazy. That’s a background concern now.”

The passage of the new law added to their confidence, and they agreed to share their story with Oakland North and The New York Times, which spoke with Lam and Acanfora on the same day. Since their business remains illegal until they become permitted, speaking publicly exposes their business to authorities. “Well, if they shut us down next week, we’ll take a vacation, wait for the new law to get implemented, and start again,” Acanfora said.

But given previous opposition from Alameda County officials, it’s not clear if these permits will be available in Oakland any time soon.

The Alameda County Board of Supervisors opposed the bill. Their published 2018 legislative platform stated that the bill bypassed “extensive safeguards” by allowing “unregulated preparation of high risk foods by untrained preparers in a home kitchen setting with none of the safeguards found in commercial kitchens and restaurants. This would result in a vast increase in the outbreaks of food borne illness while increasing the difficulty in tracking its source.”

A representative from the board joined health officials from across the state to log their opposition to the bill at a June, 2018, meeting of the senate health committee, which ended up giving a thumbs up to the bill.

County supervisors Wilma Chan and Keith Carson, who represent Oakland on the board, did not respond to a written request for comment by press time.

Since the governor signed the bill, Alameda County Health Department leaders haven’t offered any clarity on whether they will endorse allowing home cooking permits in the county. Department spokesperson Sherri Willis said she had conveyed the question to Ron Browder, director of Alameda County Environmental Health, but had not received a specific answer. “Given the law isn’t effective until January 2019, it’s too early to comment,” she wrote, summarizing his response.

Food safety is not the only concern of those who opposed the bill. Christina Oatfield, a former underground home cook and an attorney at Sustainable Economies Law Center (SELC), an Oakland-based legal research and advocacy organization that helped write the Cottage Food Act, believes that AB 626 creates a mechanism to exploit already-vulnerable entrepreneurs. The law includes provisions for third-party online companies to facilitate sales—companies like Airbnb, which provided funds to lobby for the bill so their hosts and others might be able to sell meals using the company’s “experiences” platform, and DishDivvy, a company based in Southern California that, like Josephine, connects eaters with home cooks via an app.

Speaking shortly before the bill passed, Oatfield said tech companies stand to gain more than the cooks. These online sales platforms, she said, are not required to carry liability insurance, could make it difficult to trace the origin of food, and could lead home cooks to increase production volume beyond what is safe for their kitchens. While cooks are not required to sell through those platforms, Oatfield is concerned that one or two of them might come to dominate the market, making it difficult for home cooks to sell in other ways—just as Uber and Lyft have eclipsed other methods of requesting a ride, including using taxis and smaller ride-share apps. This “could concentrate a lot of power in one or a few tech companies,” she said, saying the bill “represents a sellout of the food movement to big tech.”

But because her group supports creating economic opportunities for home cooks, they proposed amendments to the bill that would have made it more similar to California’s farmers’ market legislation. That legislation allows farmers to seek exemptions from the “standard size and pack” laws that make California fruits and vegetables commercially marketable and exportable. It also requires that the direct-to-consumer venues that sell this produce be run by nonprofits, government entities or farmers. The legislation, which passed in 1977, “prevents exploitive middle men from exploiting farmers,” Oatfield said.

Other backers of these proposed amendments included 21 food makers and advocacy organizations, including the Oakland and Berkeley food policy councils, the Ecology Center (which operates Berkeley farmers’ markets and curbside recycling), and La Cocina (a San Francisco incubator that helps women and immigrants create legal food businesses). Leaders of those organizations signed an open letter to California lawmakers opposing what they called the “Uberization of food.”

“Legislation to empower home cooks and decriminalize the sales of homemade food should be about worker justice and food justice,” they wrote in the letter. “As community leaders in the growing and diverse food movement, we resist the concentrated corporate control of the food system.”

The proposed amendments were not adopted, and Oatfield said her group is now considering whether they could partner with another organization to create their own online sales platform to support food businesses in ways that align with their vision for worker justice.

For his part, Jorgensen bristles at the term “Uberization,” which he said is a “trigger word” meant to associate the bill with the behavior of a tech company notorious for scandal and the questionable treatment of workers. He believes the new law will encourage neighborliness and empathy by allowing community members to buy food from each other and will create new income streams for people, whether their home cooking is a side hustle or an entry point into a larger business. “There’s nothing as fundamental a way to share culture and get to know your neighbors as home cooked food,” he said. And he points out that unlike ride-sharing apps—which don’t let users request a particular driver—meal app customers can support the same cook over and over again. “Cooks are the face of their own company, and get to know customers directly,” he said. “If a platform is overly oppressive or exploitive, cooks will go around them.”

Jorgensen said he agrees with Oatfield about many things, including “concern about the precedent the gig economy has set so far” and has an interest in seeing producer cooperatives thrive. But he’s also impatient for home cooking sales to become legal. “I agree with SELC’s long-term view of the economy,” he said, “but I don’t think we need to ask cooks to wait for capitalism to end.”

That said, it was in part the very forces Oatfield is concerned about that led his team to shutter Josephine. “We saw firsthand the pressure between investor expectations for growth and our desires to grow a values-based movement rooted in social justice,” he said. Now that AB 626 is law in California, he said the C.O.O.K. Alliance will promote similar legislation in other states and continue working locally to help home cooks get permits.

Sitting in their living room days after the bill was signed, Lam and Acanfora dismissed the idea that the Josephine app was exploitive—quite the opposite, they said, explaining that company staff often asked how they could help Lam’s business and provided a marketing platform beyond what the men could have accomplished on their own. “I don’t know if we would have succeeded without it,” said Acanfora. “How do you get word out for a new situation like that without somebody to help you?”

But he also said they don’t plan to sell through another app, even if a new one comes online locally. The associated fees probably wouldn’t make sense for their business, he said, and they’ve been doing just fine using their own website since Josephine shut down. “We would certainly still sell through the Internet. That’s the only viable option I think even in the future,” he said. “But I don’t see a need to partner with an Uber or an Airbnb or something like that.”

Acanfora said he was “shocked” that the bill made it through state lawmakers, but is excited to get out of the “limbo zone” they’ve been in for years. “Now we can make a clear decision how to proceed,” he said. “It’s an exciting opportunity.” If Alameda County officials agree to create home kitchen permits, he hopes that Eating Saigon “could be a source of real income for Hai, rather than just spending change. It would be a serious alternative to working in a restaurant, rather than just a temporary fix.”

Ultimately, they’d like to open a restaurant. “Open a restaurant in the USA! Yes, yes!” Lam said enthusiastically. He already owns a restaurant in Saigon, which is now run by one of his brothers.

Until he can get his Oakland business to that stage, cooking and selling from his home kitchen feels natural. “Vietnamese people, they love to go out to eat,” Lam said, pointing out the popularity of street food and small restaurants that are indistinguishable from people’s homes. “They serve right out of their living rooms,” Acanfora said. “You walk out your front door to your neighbor’s house and you can eat well. It’s really fun.”

Lam hopes county officials will soon allow him to continue expanding the business that he loves. Saying yes to home cooks, he said, is an important step for helping people like him be successful.

“It’s amazing for me,” he said. “And you guys will get the best food.”