Neighbors saw a chance to help when 12-year-old Danny Doherty opened a charity ice cream stand outside his home in Norwood, Massachusetts . Local health officials saw a threat. As soon as they learned about the unauthorized scoops of vanilla, shaved chocolate, and New England fluffernutter, they rushed to shut down the operation. Danny received a cease-and-desist letter on Aug. 5, 2024.
By this point, he had raised $124 and committed half the proceeds to the Boston Bears, a special education hockey club for children. Danny’s older brother, who is autistic, has played on the team for 10 years, and the family wanted to show its gratitude. But town officials could not allow the goodwill to continue.
The problem? Danny lacked the required permits, licenses, and certificates for a food establishment.
If he had questions about these requirements, he could have started with a 31-page rulebook from the Norwood Public Health Department. Then, he could have reviewed business and zoning laws, filled out forms, paid fees, and purchased insurance. Yet so much red tape is overkill for an operation involving one folding table and two chairs.
Most young entrepreneurs skip these steps. They mow lawns, wash cars, and babysit children without registering as business owners. Code enforcers generally look the other way. But they can be sticklers for rules when a venture involves food.
Police have shut down lemonade stands run by children in California , Colorado , Georgia , Iowa , Texas , and elsewhere. Officers in East Hampton, New York , shut down a lemonade stand run by comedian Jerry Seinfeld’s son.
The problem got so bad that Country Time Lemonade launched a “ Legal-Ade ” service with free attorneys for children in 2018. Nothing similar exists for ice cream stands, and the laws work against Danny in Massachusetts.
The commonwealth legalized cottage food, which refers to homemade food prepared for sale, in 2000. The startup process is streamlined compared to opening a restaurant, which takes at least 92 steps in Boston. But the regulatory hassle is still too much for a popup stand that might stay open for just a few days or weeks.
Local boards of health can tack on additional restrictions or ban cottage food altogether in Massachusetts, which scores a D-minus for regulatory burdens on a national cottage food report card. State lawmakers have introduced reforms in recent years, but the bills never go far.
The result is a patchwork of regulations that vary widely in 351 jurisdictions across Massachusetts. Cottage food applicants in Norwood must pass a home inspection , submit a workman’s compensation affidavit, and pay for a permit.
Even if cottage food producers navigate the process successfully, no Massachusetts jurisdiction tolerates the sale of homemade refrigerated or frozen foods. The law covers home-baked goods only. To run an ice cream enterprise from his own kitchen, Danny would have to move to another state.
Spurred by ethical, environmental, and health concerns surrounding factory food, and wanting to give small entrepreneurs a chance, lawmakers have expanded cottage food laws from coast to coast. Arizona jumped to the front of the movement in 2024 with a “ tamale bill ” that will allow vendors to sell homemade meals and other foods that need refrigeration or freezing. Iowa, Montana, North Dakota, Oklahoma, Utah, Wyoming, and parts of California have similar laws.
Research from our public interest law firm, the Institute for Justice, shows no confirmed case of foodborne illness related to cottage food in these states. Zero. Zilch. Nada.
Cottage food is overwhelmingly safe, but Norwood does not care. So, Danny developed a workaround. He started giving his ice cream away for free and asking for donations to the hockey club. Results have exceeded expectations. In less than one month, he pulled in $20,000 for the hockey club.
Still, the town’s interference was unnecessary. It was also unconstitutional. Buyers and sellers have a right to connect, and the government cannot stop them without good reason. Norwood uses public health as an excuse but has no evidence.
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Instead of freezing out people like Danny, regulators should applaud them. State lawmakers could do their part by passing meaningful reforms.
Homemade food brings people together. The world needs more of this, not less.
Erica Smith Ewing is a senior attorney and Daryl James is a writer at the Institute for Justice in Arlington, Virginia.
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