This article was reprinted with permission from Virginia Mercury.
Just before Thanksgiving, Richmond-area cake pop maker Kelly Phillips spent a Friday night preparing a batch to sell at a holiday market featuring local handmade goods. On her KP’s Kake Pops Facebook page, she posted a photo of her kitchen counter filled with a colorful assortment of cake pops with flavors like Death by Chocolate, Creamsicle and Red Velvet Blondie.
“What can I say… I like to party and lead a thrilling life!” she joked about her self-described side hustle.
She had no idea her cake pops were about to land her on the wrong side of the law.
On Dec. 1, a food safety official informed her she was operating her cake pop venture without a necessary permit from the Virginia Department of Agriculture and Consumer Services. Failure to rectify the situation, the official said, could lead to a misdemeanor charge.
“My first thought was a curse word,” Phillips, 40, said in an interview. “It was just devastation. I was like why is this happening.”
The cake pop kerfuffle spotlights the finer points of Virginia’s food safety regulations, which are meant to protect the public from consuming potentially unsafe products prepared in unsanitary conditions.
Those rules include an exception allowing small entrepreneurs to make low-risk foods like baked goods, jellies, nuts and pickles in their own kitchens and sell them either directly from home or at farmers markets. The law prohibits uninspected goods from being “offered for sale over the Internet or in interstate commerce.”
Phillips, VDACS said in its letter, was violating the rules on uninspected products by having a booth at a craft show instead of a farmers market and by promoting her cake pops, cocoa bombs, candied nuts and other goods on social media.
“What is the difference between a farmers market and a craft show?” Phillips said.
In an email, VDACS spokeswoman Shelby Crouch indicated there are regulatory distinctions between different types of events, adding that special events like holiday markets “may be under the Virginia Department of Health’s jurisdiction.” State oversight of food preparation and sales is split between VDACS and the health department.
Phillips said the recent warning from VDACS was the first trouble she’s had with authorities in more than a decade of making cake pops, which started as a hobby supplying treats for friends’ baby showers and birthday parties. She said she’s unsure what prompted the attention from VDACS but suspects it may have been a complaint from another vendor.
A client services manager for a financial planning firm by day, Phillips said she hopes her experience can draw new attention to rules she considers outdated and unworkable, particularly in an era when many small businesses rely on social media to connect with potential customers and drive up in-person sales.
“That’s where 50% of my business comes from,” Phillips said, insisting that she only used her online presence to post photos and menus and let people know when and where her baked goods would be available.
After hearing from VDACS, Phillips shut down her booth at the craft fair and went mostly silent on social media, but she sought help to push back.
In a recent letter to VDACS on Phillips’ behalf, the Institute for Justice — an Arlington-based law firm that focuses on civil libertarian causes including battles over the homemade or “cottage” food industry — called Virginia’s policy “breathtakingly unconstitutional.”
“At bottom, VDACS’ policy is that people are free to sell cottage foods at their home or at farmers’ markets but forbidden from posting about that same food on Facebook or Instagram,” wrote Institute for Justice attorney Caroline Grace Brothers. “That is an obvious violation of the First Amendment.”
In previous correspondence with the law firm unrelated to the Phillips case, VDACS said its Office of Policy and Planning “has clarified that ‘offered for sale’ includes advertising on the internet.” In an email, a VDACS official told Phillips that the agency had determined she “may not have a website without being permitted.”
In an interview, Brothers said advertising is protected under the First Amendment as long as it doesn’t mislead consumers and promotes a legal product.
“Cake pops are legal in Virginia,” Brothers said. “If it’s legal to sell, it’s legal to discuss under the First Amendment.”
After being forwarded the law firm’s letter, VDACS sent the Mercury a statement that seemed to reverse the agency’s previous determination that the ban on online sales extended to online advertising.
“Exempted products may be promoted or advertised online, so long as these products are not being offered for sale over the internet,” Crouch said. “Sometimes it can be difficult to assess whether a product is being offered for sale online or is only being advertised over the internet. If there has been any confusion, we hope this clarifies regarding the promotion of products on social media when these products are not being offered for sale online.”
Phillips said she can’t resolve the issue by getting the food safety permit VDACS said she needs because she has dogs and a house with an open floor plan. That setup, she said, makes it impossible to comply with a rule requiring the food preparation area (her kitchen) to be “completely enclosed” from pets.
“To add hinged doors or walls in order to have that would cost me more than I would make making cake pops for the next five years,” she said.
