Selling homemade goodies - legally

July 23, 2009: 3:01 PM ET

Selling sweet treats can be a fast way to make extra cash, but the road to doing it legally is paved with bureaucracy.

Ana, Dartmouth, Mass.
I'm thinking about making some truffles (chocolate and peanut butter), putting a flyer together, passing it to friends at work and selling to them. I'm making them at home.  Do I need to get a business license or a food license?

By Emily Maltby, staff writer

Lots of people are eying their kitchens right now as a way to earn a little extra cash in a bad economy. The Massachusetts Department of Public Health Food Protection Program receives more than 200 inquiries a year from residents hoping to open a food business.

The permits and licenses you will need vary depend on whether you want to incorporate, where you will be running the business, and the type of munchies you want to sell.

Each state has its own guidelines. Massachusetts recently published a brochure on the requirements for residential kitchens, broken out into two categories: "retail kitchens," from which you sell the goods directly, and "wholesale kitchens," for those who are selling their creations to another vendor, such as a local grocer.

What you're asking about is a retail kitchen. To set one up legally, you'll need to be inspected by the local board of health, which will approve and license you.

"They will test to make sure that there is appropriate sanitation, such as making sure there is enough chlorine to clean the food preparation areas and that the dishwashing operation has a sufficient temperature for sterilization," says Suzanne Condon, director of the Massachusetts Department of Public Health's environmental health and safety bureau, located in  Jamaica Plain, Mass.

The health board's inspectors will also make sure that your product is a "low-risk food," meaning that it does not require refrigeration and does not support the growth of disease-causing bacteria. The board may require a lab test to determine the pH and moisture levels of your snacks, along with other characteristics that would affect the food's shelf life. If the inspectors don't think your food qualifies as low-risk food, chances are you won't get the permit.

You will also be required to maintain a standard recipe, which will enable you to properly label the ingredients in your food. A new analysis may be required if you want to alter the recipe. For guidance on how to label your food, check out the FDA's Center for Food Safety and Applied Nutrition Web site.

In some states, kitchen inspections are conducted by the state inspectors. In Massachusetts, they are carried out on a local level. Fees vary widely: In Bedford, a permit can be had for only $50, but Belmont it is $85. Burlington charges $100, and in Arlington it costs $175.

Once you've had your kitchen and your product inspected, you can secure a business license from your local jurisdiction. The most basic registration is a sole proprietorship, which means you will have the ability to sell your goodies on your own. If someone else is working with you, the best option is to get licensed as a partnership.

You can stop there, or go a step further to form a business entity, such as a corporation or a limited liability company. "As a sole proprietor, all your personal assets are exposed," says John Meyer, business development leader at The Company Corporation, a firm that helps startups incorporate. "But by incorporating, you will establish a brick wall between the business and personal assets, because that business license would be under the entity's name -- not yours."

Forming a business entity can also provide more tax flexibility, allowing you to deduct losses in years that your company doesn't make it into the black. It's up to you if the cost is worth the reward: Incorporating can cost as little as $100 through an online filing service, but keep in mind that states have their own, additional fees, which may tack several hundred dollars onto the final bill.

You don't have to decide right away whether you want to classify your food venture as a formal business or an income-generating hobby. At tax time, you can submit Form 5213, which allows you to defer for four more years the IRS's determination of whether your business is a for-profit venture.

For more information, the most comprehensive site about registering your business and obtaining permits is Mass.Gov's step-by-step guide to forming a local business.

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