The Shareable Food Movement Meets the Law
By Kelly Densmore and Janelle Orsi, Sustainable Economies Law Center (SELC)
Adapted from a longer article originally published by Shareable on www.shareable.net/blog/the-shareable-food-movement-meets-the-law
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 as the down economy continues, interest in resource-sharing has extended into the territory of food, resulting in the emergence of some legal curiosities in recent years.
Call it the “shareable food movement.” Lately, we can sneak off for meals at underground restaurants or stone soup gatherings. We can shop at pop-up stores, join goat-sharing groups, or just meet up to swap our homemade goodies. The movement is creating connections and savings, but it goes deeper; it’s also providing many people with a livelihood.
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 eat at a 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 constantly watching that ever-shifting point.
Many health codes specifically exempt “private events” and “private clubs.” To the extent that private clubs are exempt from burdensome legal regulations normally applied to public activities, such exemptions can benefit groups that come together for mutual benefit and sharing. Put more simply, “private club” could be the magic password allowing entry into a more sharing economy.
When San Francisco’s Underground Market got started, the Health Department gave it a nod and recognized that it was a private event where people exchange (albeit, with money) homemade foods. However, on June 11, as thousands of people lined up for the wildly popular event, the San Francisco Health Department announced that the market had passed that point between the private and public realms and asked it to cease operations. It was a sad day. The market had become a beloved phenomenon. It was a place where many new food entrepreneurs got their start, where community members gathered to enjoy each other and rave about bafflingly delicious items such as “Bacon Crack.” The market was left in limbo while everyone chewed on the question: What is a private event or private club?
Extrapolating from a large handful of cases, we’ve learned that courts are more likely to find that an activity qualifies for private club status if:
- Participation is limited and there are meaningful criteria by which people are selected to take part;
- The activity is not advertised to the public and the public cannot just walk in;
- The participants know each other and interact;
- Participants collectively exercise control over the activity;
- The primary purpose of the activity is social, not commercial.
There is a longer list of factors, and the manner in which courts apply the analysis varies. But we interpret all of this to mean that there are vast possibilities for feeding each other, including ways that may even look like private “restaurants” and “markets.”
For example, let’s say that you and 10 friends jointly hatch a plan to showcase your fabulous quiche at a weekly “Quiche Café” at your house. You determine that your friends bring the drinks, concoct fun activities, and help with dishes. Each core member of Quiche Café may bring a friend or two, so every dinner is attended by an average of 25 people. Everyone chips in around $8 and you keep any funds left after paying for ingredients, which results in your pocketing about $80 per week.
Is Quiche Café 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 their guests. Quiche Café is not advertised and is not open to the public. The friends jointly manage the club for their own benefit. Although the quiche chef is netting a small stipend, the core purpose of the activity is to provide social and edible sustenance to friends.
To learn more about the case law, and see the analysis applied to a hypothetical private “market” and private goat club, please see the full-length version of this article at www.shareable.net/blog/the-shareable-food-movement-meets-the-law.
* Disclaimer: Please don’t rely on anything in this article as legal advice or 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.