Insider Blog: The Shareable Food Movement Meets The Law

The Shareable Food Movement Meets The Law When we share in efforts to grow, process, prepare, and serve food, we enhance our abilities to build livelihoods around food. Here we explore the role of the law in the social food trend.

The Health Department didn’t show up when I made dinner for my neighbors last night. Fortunately, our health and safety laws don’t usually dictate how we prepare food in our personal and private realms. But humans have a natural tendency, an urge to feed each other, and the shareable food movement is taking that to new levels - levels that bring up some legal curiosities.

In recent times, the realm of shareable food is flourishing and community meal sharing, potlucks, gift-economy restaurants, community food growing projects, food swap events, soup stone gatherings, food-buying cooperatives, goat-sharing, chicken cooperatives, and even a handful of peer-to-peer platforms helping people feed each other are popping-up everywhere.

The Underground Food Movement has become a thing lately. It’s a foodie’s utopia in Oakland these days, where I’ve snuck off to meals at “underground restaurants” and sampled urban homesteaders’ goat cheeses and preserves.

But this movement goes deeper than its sheer yumminess. We thrive on food. When we share in efforts to grow, process, prepare, and serve food, we greatly enhance our abilities to eat well, provide for ourselves, and build livelihoods around food. Sharing food is particularly important during hard economic times and many small food projects develop out of unemployment.

But where does the law come into it?
Picture all of this food sharing activity on a spectrum. At the private and personal end, we eat a homemade meal with our family. At the public and commercial end, we get chicken nuggets from the drive-thru window at a chain restaurant. Somewhere in between is a point at which our society has decided to impose protections and regulations. At the Sustainable Economies Law Center, we are on a constant search for that elusive point.

And with many health codes specifically exempting “private clubs” and “private events,” we believe this could very well be the magic password to the sharing economy, for legal purposes, anyway.

But what is a private club?
At first, the words private club might conjure up images of an exclusive place that we are not cool enough or rich enough to get invited to. But, to the extent that private clubs are exempt from burdensome legal regulations normally applied to public activities, such exemptions will also benefit groups of people that come together for their own mutual benefit, for collaboration, and for sharing.

Sustainable Economies Law Center intern Kelly Densmore has been spending her summer reading cases where courts have had to answer this very question. What follows are some of her findings.

The public/private distinction is relevant for the purpose of applying many laws, not just food regulations. With a shortage of case law in the food realm, we can derive guidance from a handful of cases that examine the issue in the context of Civil Rights laws, the Americans with Disabilities Act (ADA), smoking laws, and employment laws.

The cases vary, but generally, courts have weighed a handful of factors to decide whether a club is really and truly, well, private. Factors that courts tend to weigh include:
• Whether the club applies meaningful selection criteria to the admission of new members
• The size of the membership
• The degree of member control of club operations
• Whether substantial membership fees are charged
• Whether the entity is operated on a nonprofit basis
• Whether members know each other and whether there is personal interaction among members
• Whether the primary purpose served by the club is social or business
• The extent to which the facilities are open to the public
• The extent to which the club advertises to the public and/or publicly solicits new members
• The degree to which club facilities are available for use by non-members
• The degree of public funding
• Whether the club was created specifically to avoid compliance with the Civil Rights Act or other laws

Although no single factor is controlling when determining whether a club is private, most courts have considered the selectivity of the membership to be of great importance. Preferably, private clubs will have meaningful criteria on which people are chosen to be accepted as members, rather than allowing anyone to join at any time.

Private restaurants and private markets?
So how does all of this apply to the sharing of food? Is it possible to create a “restaurant” or “market” that is private and, therefore, exempt from some of the regulations that apply to its public counterparts? Let’s have a look.

Your private “cafe”
Let’s say you and 10 of your close friends agree that you make the world’s best quiche. You jointly hatch a plan for Quiche Café, which is essentially a weekly dinner party at your house. You buy the ingredients and make the quiche. Your 10 friends, the core members of the Café, bring the drinks and concoct fun activities and games. Most importantly, everyone helps out with the dishes. Each core member of Quiche Café is encouraged to bring a friend or two, so each dinner is attended by an average of 25 people. Everyone chips in around $8, even though you’ve calculated the per-person cost of ingredients to be around $4. Everyone feels that any surplus could be seen as a modest stipend or your thank-you gift for being the hostess with the most-est.

So is Quiche Cafe private enough to avoid health and safety regulation? Based on guidelines we’ve gleaned from the court decisions, we think so.* Participation is restricted to the original 10 friends and the friends that they personally invite. Quiche Café is not advertised and is not open to the public. The members jointly manage the club for their own benefit. Although the quiche chef is making a small stipend, the core purpose of the activity is to provide social and edible sustenance to friends.

Your private “market”
Now let’s imagine you want to share your quiche with more people. Your friend tells you about a weekly gathering where people exchange homemade foods. Sometimes people gift their foods to each other, sometimes they barter, and sometimes they sell.

Before you can bring your quiche to the gathering, you have to be recommended for membership by someone who is already a member. You also need to fill out a membership application and explain how most of your ingredients come from socially responsible sources. Once you are admitted as a member, you are given passes to bring up to five guests to the gathering each week. No one can get in the door without a pass, and you are not allowed to sell your five guest passes or give them to people you don’t know. Members are required to pay monthly dues of $50, to attend four meetings per year, to elect a board of directors, and to sometimes take part in special committees. The board of directors may hire a manager for the event, but major decisions about the gathering are made by the member-elected board. The gathering is limited to 100 food artisan members and overall attendance is limited to 600.

Again, we feel that this activity should be treated as private and not subject to health permit requirements.* The activity is collaboratively managed by members, membership is restricted, the event is not publicly advertised, and non-member attendees may come, on a limited basis, only as a guest of a member. Although income from the event may contribute to the livelihoods of the food artisans and the event manager, the entity itself is not operating for a profit, but rather to provide a forum for the appreciation of interesting and hand-crafted foods.

But feeding total strangers is fun and important!
This is true. Enabling people to feed each other should be a high priority, and it won’t always be practical or desirable to relegate our food sharing activities to the private realm. We’re hungry for a world where tons of small food entrepreneurs can make it in competition with the giant food conglomerates. The shareable food movement localizes economies, feeds communities in challenging economic times, and supports our environment by encouraging localized food production and lower carbon “foodprints”.

So how else can we further the shareable food movement?
There’s much to say on this topic, but here are a few thoughts. First, we can create new platforms for food production and food sharing: Shared commercial kitchens, like La Cocina in San Francisco, are part of the answer, because they reduce the barrier to entry for small entrepreneurs; more community marketplaces create a space for entrepreneurs to get their products out there; and marketing cooperatives can help entrepreneurs aggregate and sell their products. These are all sharing solutions that give entrepreneurs access to spaces and markets that are normally expensive and inaccessible.

Furthermore, we can all work to pass new laws that lower the overall set of legal barriers to small food enterprise. An easy place to start is with cottage food laws, which have already been passed in half of the U.S. states. Cottage food laws enable the sale of home-made foods that are “non-potentially hazardous,” such as breads, cakes, jams, and granola.

Allowing the sale of back-yard produce is another step, and a handful of cities have recently done this or are currently considering it. (See San Francisco, Berkeley, and Oakland.) Food sovereignty laws take this even further and endeavor to de-regulate many facets of food production.

Acknowledgments: This article was a collaborative piece written by the Sustainable Economies Law Center’s Legal Intern Kelly Densmore and Co-Director Janelle Orsi. You can find the full, original article on Shareable where it first appeared.

* Disclaimer: Please don’t rely on anything in this article as legal advice or even as being thorough and applicable to your own situation or jurisdiction. In spite of what some courts may hold or what we at SELC may opine, every jurisdiction has a mind of its own.

Hungry for sharing - 10 collaborative platforms for the taste buds

• Landshare is a UK-based community bringing together people with passion for homegrown food. It connects those who have land to share with those who need land for cultivating food, and since its launch in 2009 has grown into a thriving community of more than 64,000 growers, sharers and helpers.
• Lourish is a crop swap for fruit and vegetables, allowing you to exchange your surplus produce with other Lourish members near you. It’s hyper-local, super-fresh and results in almost zero food miles, which saves money and the environment.
• Incredible Edible is a community food network based in Todmorden, UK. Their aim is provide local food for all, through collaboration, and community gardening.
• Culture Kitchen in San Francisco uses food as a means for cultural exchange, bringing together experts at ethnic home cooking with food lovers interested in the people and the stories behind the food. They employ immigrant women and give them the platform to become chefs and teachers.
• Grubwithus combines the deal element of sites like Groupon, with the social element of a Meet-up group. Not only can diners pre-buy meals at a range of restaurants but they can also see who’ll they’ll be eating with. Available across the US, Canada, Hawaii, UK and Japan.
• gobble is a San Francisco based business that lets you order delicious home-cooked meals from the best chefs in your neighborhood. It’s fresh, creative and gives you access to a unique range of healthy and ethnic meals.
• Grub.ly is a marketplace for underground dinners, connecting chefs cooking in their own home with willing diners. It’s social, fresh and a great platform for up-and-coming foodies.
• Eatwithme is a social networking site where you can plan cool food events, post them online and invite other foodies to join in. Members and events are springing up all over the world from Melbourne to Berlin, Buenos Aires and Milan.
• La Cocina provides affordable commercial kitchen space and industry support for low-income food startups. It’s an incubator that allows multicultural food vendors to develop and cultivate their culinary talents and create viable products.
• Table for 20 is Sydney-based restaurant, where diners share a homecooked meal with a table of strangers. One of the earlier neighborhood dining experiences in Australia, it recently celebrated its five-year birthday.

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