Virginia cake pop maker battles state regulators for right to post pics on Instagram

[mahatmakanejeeves]

Virginia cake pop maker battles state regulators for right to post pics on Instagram

Agency partially backtracks after warning home baker over food safety permits

BY: GRAHAM MOOMAW - JANUARY 3, 2024 6:07 PM



Richmond-area cake pop maker Kelly Phillips ran into trouble with state regulators for selling cake pops at a local holiday market and promoting her baked goods online. (Photo courtesy of Kelly Phillips)

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.”

{snip}

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.”

{snip}

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.

GRAHAM MOOMAW
[e-mail]
https://twitter.com/gmoomaw
A veteran Virginia politics reporter, Graham grew up in Hillsville and Lynchburg, graduating from James Madison University and earning a master's degree in journalism from the University of Maryland. Before joining the Mercury in 2019, he spent six years at the Richmond Times-Dispatch, most of that time covering the governor's office, the General Assembly and state politics. He also covered city hall and politics at The Daily Progress in Charlottesville.