As we enter our sixth month of pandemic life, amateur bakers and chefs are looking to turn their skills in the kitchen into a little extra cash by selling their culinary creations online or in their local communities. This popular trend, however, comes with a sea of red tape and threats of home intrusion. It is tough to accomplish anything these days without asking the government for permission, and selling so-called “cottage foods” is no exception.
Take Maryland, for example, where it is a jailable offense to deny regulators access to your home if you sell any food made in your kitchen. And that is on top of a $5,000 maximum fine. A second violation could land you in jail for up to a year. If you sell beef jerky to your friends or peddle your pies at a local farmer’s market, be aware that the regulators might show up on your doorstep. They won’t have a warrant, but turning them away could be the start of a long and costly legal battle.
Meanwhile, Virginia deems a private residential house to be a “food manufacturing plant” under its industrial regulations. Therefore, if your food is not on the government’s approved list of “cottage foods,” the full weight of industrial regulations for food manufacturers will descend on your home kitchen, including warrantless inspections, sampling and vehicle stops.
One might assume these are necessary protections for health and safety, until you consider the list of foods that might land you on the wrong side of the line. D.C. regulations permit residents to produce and sell doughnuts, as long as they are baked and not filled. Sales of cakes of any kind are approved, as are fruit pies, fruit empanadas and fruit tamales. One can, therefore, fill a pie or a cake with fruit and sell it to their neighbor, but not a doughnut. And don’t even think about frying it.
These completely arbitrary distinctions are hardly justified.
Neither the home nor the innocuous neighborly activities of daily life is safe from the grasping hands and prying eyes of government inspectors. The extra cash that unemployed, furloughed and part-time workers try to scrape together during the lockdowns by selling food from their kitchens could make them a target.
But what does the Constitution say about all of this?
American independence was motivated in large part by opposition to arbitrary searches carried out by the British during the 18th century. This opposition was enshrined in the Fourth Amendment in our Bill of Rights, which requires that searches and seizures of homes be “reasonable.” An officer must have probable cause to believe illegal activity has taken place, along with a warrant issued by a judge that limits the places he can search and the people or things he can seize.
Fast-forward to 2020. Are warrantless searches of home kitchens under threats of imprisonment or fines much different from the abusive practices our Bill of Rights was drafted to prevent? As legal historian Bill Cuddihy explains in his detailed treatise on the history of the Fourth Amendment, it was not only British searches and seizures that the Founders intended to limit but also those carried out by the colonial American governments. In the 1760s, Massachusetts passed legislative schemes aimed at the quality of leather and baked goods that gave inspectors the right to enter homes and businesses with neither warrants nor cause. Other states followed suit, but by the time of the ratification of the Bill of Rights, these regimes had fizzled.
In the 1960s, the Supreme Court reasserted the rights of Americans to the security of their homes from warrantless intrusions when it ruled that zoning inspectors could not threaten their way into houses without warrants. The oversight of a judicial officer is an indispensable part of American search and seizure practice and is written into our Fourth Amendment. Attorneys call it the “Warrant Clause.”
It is inevitable that the government, once granted power by the people, will use the tools it has to expand its authority. This country has witnessed many such expansions into the daily lives of American citizens. Often the claim is made that regulations promote health, safety or efficiency. But such excuses cannot overcome the balance struck at this nation’s founding, which requires that searches of houses need a judge’s approval.
It may be hard to imagine that heavy-handed local food regulations would spark a modern revolution. But at the very least, D.C. Metro-area residents who want to prepare and sell food products in their own homes should know they have the right to be protected against baseless government intrusion.
Daniel Woislaw is an attorney at Pacific Legal Foundation, which litigates nationwide to achieve court victories enforcing the Constitution’s guarantee of individual liberty.