Does Tennessee Food Freedom Act let a home food seller skip local zoning rules or building permits for a new structure?

Plain-English summary

Tennessee Food Freedom Act restricts government regulation of homemade food production and sales. Lieutenant Governor Randy McNally asked whether that protection also preempts local zoning, land-use rules and building permits. The Attorney General answered no for generally applicable controls on construction or physical infrastructure.

The opinion reads Tenn. Code Ann. § 53-1-118(d) by its own words: it preempts local governments from "prohibiting and regulating the production and sale of homemade food items." A rule that applies to construction generally addresses the building or land, not the production or sale of food. So a home food seller cannot invoke this provision to build an additional structure that ordinary zoning prohibits, or to avoid a generally applicable building permit.

That conclusion does not erase the Act's food-specific protection. Subsections (a) and (b) exempts qualifying production and sales from specified state licensing, permitting, inspection, packaging and labeling laws. The Attorney General draws a line between those food-production rules and land-use controls for physical construction. It notes that discriminatory administration of a building-permit requirement could raise a different concern, but it does not decide such a case.

What this means for you

Home food producers and property owners

The opinion says qualifying homemade food activity does not by itself exempt a proposed addition or other construction from generally applicable local zoning and building-permit rules. Its example is a homeowner who wants a new building that land-use regulations ordinarily prohibit: section 53-1-118(d) does not authorize that construction merely because the owner sells homemade food.

City and county zoning officials

The Attorney General treats even-handed construction and infrastructure requirements as outside the Act's food-production preemption. The opinion distinguishes such rules from local action aimed at prohibiting or regulating homemade food production or sales. It separately notes possible concern if a permit rule is administered discriminatorily against cottage food operators.

Common questions

Q: Does a Tennessee home bakery need a building permit for an addition? A: The Food Freedom Act does not eliminate a generally applicable permit requirement for the addition. The opinion concerns the construction rule, not whether any particular proposed building qualifies for a permit.

Q: Can a city ban homemade food sales through a local ordinance? A: Subsection (d), as quoted in the opinion, preempts local rules that prohibit or regulate the production and sale of homemade food items. The opinion addresses the different question of generally applicable construction controls.

Q: What if zoning normally forbids the extra building a food seller wants? A: The Attorney General's example answers this directly: section 53-1-118(d) does not override that generally applicable land-use restriction merely because the owner participates in the cottage food industry.

Q: Does the opinion approve selective enforcement against food producers? A: No. It says discriminatory administration of a building-permit requirement "could trigger concern" and treats that as a separate question from even-handed application. It does not resolve any particular enforcement dispute.

Background and statutory framework

The opinion says the Tennessee Food Freedom Act was enacted in 2022 and amended in 2025. Subsections (a) and (b) exempts qualifying homemade food production and sales from listed state regulatory requirements. Subsection (d) preempts local regulation of that production and sale. The Attorney General reads both provisions in the context of subsection (c), which preserves matters including foodborne-illness investigations, applicable tax law and regulation of other goods and services.

For zoning, the opinion relies on the distinction between a rule directed at food activity and a generally applicable rule governing physical infrastructure. It quotes Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 549–50 (2001), for a comparable distinction between general zoning and regulation targeting a particular activity. The opinion's holding concerns ordinary building-permit and land-use rules, with discriminatory application left unresolved.

Citations and references

• Tenn. Code Ann. § 53-1-118(a)-(b) (qualifying homemade food exemption)
• Tenn. Code Ann. § 53-1-118(c) (limits on that exemption)
• Tenn. Code Ann. § 53-1-118(d) (local preemption of food production and sales rules)
• Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2026/op26-10.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
October 15, 2026
Opinion No. 26-10
Effect of Tenn. Code Ann. § 53-1-118 on Local Land-Use Controls Related to Construction Question Does Tenn. Code Ann. § 53-1-118(d) have the effect of preempting zoning and land-use regulations such as building permits for city and county governments? Opinion No. The preemptive effect of Tenn. Code Ann. § 53-1-118(d) is limited to “prohibiting and regulating the production and sale of homemade food items.” Generally applicable land-use controls governing physical infrastructure or construction would not fall within these parameters. ANALYSIS Across the Nation, States have enacted what are known as “cottage food laws” to reduce the regulatory burdens that homemade food producers, i.e., “cottage food operators,” might otherwise face. See generally Allison Condra, Food Sovereignty in the United States: Supporting Local and Regional Food Systems, 8 J. Food L. & Pol’y 281, 312–14 (2012). The focus of the request—Tenn. Code Ann. § 53-1-118—exists within this broader body of laws. Originally enacted in 2022 as part of the Tennessee Food Freedom Act,1 and later amended in 2025,2 Tenn. Code Ann. § 53-1-118 affords Tennessee citizens a wide degree of liberty to produce and sell homemade food items. See generally Tenn. Code Ann. § 53-1-118. Here, the question presented is one of statutory preemption, with the request seeking guidance on how Tenn. Code Ann. § 53- 1-118(d) might impact local zoning and land-use regulations. As discussed below, the statute’s preemptive reach is limited. Although it extends to actions that prohibit or regulate “the production and sale of homemade food items,” Tenn. Code Ann. § 53-1-118(d), it does not disturb general land-use controls that regulate physical infrastructure or construction. Basic Statutory Overview Tennessee Code Annotated § 53-1-118 removes certain regulatory burdens on Tennessee’s cottage food industry. It does not, however, insulate cottage food operators from all regulations. 1 See 2022 Tenn. Pub. Acts, ch. 862. 2 See 2025 Tenn. Pub. Acts, ch. 431. 2 Tennessee Code Annotated § 53-1-118 provides that “the production and sale of homemade food items . . . are exempt from all licensing, permitting, inspecting, packaging, and labeling laws of this state,” so long as certain statutory conditions are satisfied. Tenn. Code Ann.
§ 53-1-118(a)-(b). The same statute also “preempts county, municipal, and other political jurisdictions from prohibiting and regulating the production and sale of homemade food items.” Tenn. Code Ann. § 53-1-118(d). Despite its seeming breadth, however, Tenn. Code Ann. § 53-1- 118 expressly does not “[i]mpede the department of health in an investigation of a reported foodborne illness;” “[p]reclude the production or sale of food items otherwise authorized by law;” “[c]hange the regulation of other goods and services where homemade food items are also produced or sold;” “[e]xempt producers or sellers of homemade food items from any applicable tax law;” or “[a]pply to sales other than intrastate sales made within this state.” Tenn. Code Ann.
§ 53-1-118(c).
Applying the natural and ordinary meaning of Tenn. Code Ann. § 53-1-118(a) and (d) and reading the language in the context of the surrounding statute, see State v. Butler, 980 S.W.2d 359, 362 (Tenn. 1998), we believe that the exemption and the preemption provision are best understood as simply relating to laws surrounding the production and sale of food. Tennessee Code Annotated
§ 53-1-118(a) “exempt[s] from all licensing, permitting, inspecting, packaging, and labeling laws of this state” only “the production and sale of homemade food items.” Tennessee Code Annotated
§ 53-1-118(d) likewise preempts only that local governmental action that prohibits or regulates “the production and sale of homemade food items.” Textual support for a more expansive interpretation of either provision is lacking. Put simply, Tenn. Code Ann. § 53-1-118’s exemption and preemptive reach do not extend beyond those regulations pertaining to the cottage food industry. Application of Tenn. Code Ann. § 53-1-118(d) to Local Zoning and Land-Use Regulations Because Tenn. Code Ann. § 53-1-118(d) preempts local governments only from prohibiting or regulating “the production and sale of homemade food items,” it leaves most local regulations undisturbed. By its text, the statute does not foreclose generally applicable land-use controls that govern matters of construction or physical infrastructure because such controls do not prohibit or regulate “the production and sale of homemade food items.” Cf. Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 549–50 (2001) (examining federal preemption under the Federal Cigarette Labeling and Advertising Act and opining that there is a “critical distinction . . . between generally applicable zoning regulations . . . and regulations targeting cigarette advertising”). In the case of a generic (and generally applicable) building-permit requirement, then, Tenn. Code Ann. § 53-1-118(d) has no preemptive effect. A generally applicable building-permit requirement does not involve a regulation of the cottage food industry within the meaning of Tenn. Code Ann.
§ 53-1-118(d); rather, the control relates to broader property matters of physical infrastructure and construction. To be sure, the discriminatory administration of such a building-permit requirement could trigger concern. But possible discriminatory enforcement against cottage food operators is a different question entirely from the even-handed application of such a generally applicable local law. Indeed, similar to how this Office previously considered an issue involving the intersection 3 between a preempted field and local zoning, we think it is “reasonable to construe the statute to require [cottage food operators] to conform to the same general [building-permit] restrictions as those imposed on [others].” Tenn. Att’y Gen. Op. 17-26 (Apr. 11, 2017). To illustrate the statutory limit, consider a residential property owner who sells homemade food items and wants to construct an additional building on her property that would normally be prohibited by zoning or land-use regulations. We fail to discern how Tenn. Code Ann. § 53-1- 118(d) would help the residential property owner in this hypothetical. Because § 53-1-118(d) preempts local governments only from “prohibiting and regulating the production and sale of homemade food items”—not from imposing generally applicable land-use controls for construction—the owner in the hypothetical cannot rely on § 53-1-118(d), even if the owner participates in the cottage food industry. If generally applicable land-use controls prohibit the construction of an additional building, those legal regulations would remain enforceable. JONATHAN SKRMETTI Attorney General and Reporter MADELINE W. CLARK Solicitor General JAMES P. URBAN Senior Deputy Attorney General MATTHEW KERNODLE Senior Assistant Attorney General Requested by: The Honorable Randy McNally Lieutenant Governor 425 Rep. John Lewis Way North Nashville, Tennessee 37243