Inclusive Occupational Licensing

Occupational licensing has been under attack from across the political spectrum. Economists argue that it is inefficient and costly; policymakers argue that it limits employment opportunities and hurts consumers; and antitrust regulators argue that it limits competition and creates cartels. Politicians, regulators, and courts have come to a rare consensus that licensing regimes must be restricted or repealed. Despite the critiques, licensing has remained entrenched, while other anti-competitive labor market practices, such as non-compete clauses and employee misclassification, have been targeted by federal agencies and state legislatures. The result has been worsening inequality, exclusion of disadvantaged workers from lucrative career paths, and limited access to services by consumers.

This Article reimagines licensing in the twenty-first century as a source of opportunity rather than a pure barrier to entry. When an industry is already licensed, additional paths for entry that target underprivileged populations benefit workers and consumers. We suggest that this approach can strengthen workers’ labor market power and diversify a variety of industries, including those where workers are less educated, lower income, and more vulnerable.

In this Article, we argue that the solution to licensing’s well-established problems is not less licensing, but the opposite—new licenses should be introduced to diversify access within licensed professions. For example, we look to the medical industry, which successfully implemented an expansion in licensing that resulted in more medical care offered to vulnerable patients and more employment opportunities available to healthcare workers.

To demonstrate our proposal’s promise of fighting inequality, we focus on a new case study of licensing for home food businesses. We collect novel empirical data on home food licensees registered in California after the passage of the Homemade Food Act of 2012 and demonstrate how home food licenses are held by underrepresented minorities. Moreover, we show how home food businesses are often located in food deserts, filling gaps in California’s food ecosystem. Expansions in food licensing disproportionately benefit underprivileged workers and consumers.

We argue that licensing, when used strategically to benefit disadvantaged communities, can be a powerful weapon against inequality. We provide a framework for expanding licensing regimes to reap the benefits of competition and to diversify licensed industries. More accessible licenses can help low-income and minority license holders enter new professions at a lower cost, provide a path to higher income, and create a community with shared resources and information. In an increasingly unequal society, inclusive licensing can fight anti-competitive labor practices while contributing to the welfare of both workers and consumers.

Table of Contents Show

Introduction

A recent high school graduate, a factory worker let go after a decade of loyal service, and a retiree returning to the work force to support their grandchildren each face a common challenge in the job market: They cannot apply for a job as a manicurist, garment worker, or security guard without receiving a state license.[1] Licenses impose training, examination, registration, and ongoing supervision requirements that workers must satisfy.[2] Unlicensed workers may face lawsuits and other sanctions if they are deemed to have entered the license holders’ territory.[3] Consumers suffer due to a lack of available services.[4]

From the early 1950s to 2008, the share of workers covered by licenses grew from less than 5 percent to 29 percent.[5] In nearly that same time frame, economic inequality grew exponentially. From 1947 to 2018, households in the highest income quantiles saw their real incomes grow by more than double that of the lowest income quantiles.[6] Protectionist licensing regimes that inflate wages only for license holders to the detriment of other workers may have contributed to the growth of inequality.[7] Accordingly, a chorus of scholars and policymakers has warned of the harms of licensing, advocating for the repeal of licensing regimes or aggressively attacking license holders’ power.[8] Proposals for reform have focused on repealing licenses in favor of less onerous regulations or relaxing existing licensing laws.[9]

These proposals have created a rare bipartisan consensus in favor of licensing reform. In 2015, the Obama administration composed a full-length report on the effects of occupational licensing alongside preparing several policy proposals and funding for the Department of Labor to study interventions in state licensing policies.[10] Similarly, the Trump administration issued an executive order in 2020 pointing to the urgent need to reform occupational licensing, requiring federal agencies and states to work together to implement licensing reforms when possible.[11] The Biden administration’s executive order convening a multi-agency coalition to combat anti-competitive labor practices specifically referred to licensing reform as a priority.[12] Nevertheless, federal rules targeting licensing reform have not emerged, and states have not taken significant steps to repeal licensing regimes.[13]

In the meantime, federal and state governments have taken other high-profile steps to limit anti-competitive labor market practices.[14] Proposed reforms to address employee misclassification, non-compete agreements, and mandatory arbitration have been successfully adopted.[15] Occupational licensing reform has seemingly been deemphasized in national politics,[16] while mandatory arbitration[17] and non-compete agreements[18] remain a policy priority. In fact, licensing reforms have faced significant pushback from industry insiders, stalling attempts for widespread change.[19]

We propose a new path forward—expanding licensing regimes to diversify job options for workers entering a particular industry, which will also benefit consumers.[20] Simply put, multiple licenses competing for consumers decrease the power wielded by any single licensing authority and expand consumer choice. At the same time, more options allow a larger number and a more diverse group of workers to enter a profession. This approach reimagines licensing considering current economic conditions, where many industries require licenses already. Diversifying licenses for workers to increase access to professions makes expansions in licensing an important force against inequality and in favor of economic opportunity.

To begin, we analyze the potential costs and benefits that licenses create for disadvantaged populations.[21] First, we acknowledge the discriminatory history of licensing regimes.[22] The power for insider licensing authorities to exclude outsiders has been used to oppress less powerful workers, including disadvantaged minorities who may be averse to legal proceedings.[23] We then turn to the documented economic consequences of licensing on low-income and minority workers.

First, licensing creates a barrier for competitors who wish to enter the market to create a good or service.[24] Fewer entrants mean less competition for license holders.[25] The consumers in these markets may suffer because they have fewer options and higher prices, raising antitrust concerns.[26] The benefit of less competition, though, is protection for license holders from the vagaries of the market, allowing more long-term investment, and providing insurance against downturns, which is particularly valuable to low-income and minority workers.[27] Furthermore, a large body of literature has shown that licensing increases wages, benefiting the neediest workers most.[28]

Second, licensing assures consumers that all members of an occupation satisfy legal requirements that are intended to ensure minimum quality standards are met.[29] These prerequisites exclude workers without formal qualifications, potentially harming vulnerable worker populations such as immigrants and non-English speakers.[30] It may also decrease the availability of goods and services for consumers.[31] The benefit of requiring formal qualifications for licensing, however, is that market participants likely to commit fraud or provide low-quality goods or services are less likely to enter the market or remain in business.[32] Vulnerable consumers can feel more confident buying a good or service from license holders.[33] Moreover, licensing can help combat discrimination in the hiring market by providing an independently verified signal of a worker’s skill.[34] Biased employers can learn from the signal and begin to hire more diverse workers.

To demonstrate how expanding licensing regimes can benefit workers and consumers, we develop two examples. To begin, we describe the widely known success story of advanced practice nurses who work with, and have begun to compete with, medical doctors.[35] Restrictions in the supply of medical doctors have limited access to healthcare nationwide, especially in low-income and rural areas, but advanced practice nursing has helped fill the gap.[36] The shift has also lowered barriers for entry into the practice of medicine by decreasing the cost of education and increasing diversity in the composition of healthcare providers.[37] Both potential healthcare workers and patients have benefited, decreasing the power of medical doctors.

Next, we introduce a novel case study of newly created licenses for home food businesses. Food industry regulation has been criticized for its piecemeal approach to ensuring production and access to essential goods, especially for poor consumers.[38] The commercial food industry has resulted in “food deserts[,]” often poor or rural areas where access to healthy food is limited.[39] Despite these gaps in access, home cooks were historically limited from preparing and selling food commercially.[40] A movement criticizing this restriction, known in some states as the Food Freedom movement, gave rise to a sea change in state law over the past twenty years.[41] By the writing of this article, every state had allowed the sale of some foods produced in home kitchens.[42]

In 2012, California passed the Homemade Food Act, which allowed the production and sale of low-risk prepared foods, such as baked goods, at home if producers obtained a “cottage food” license.[43] Licenses were granted by county public health departments alongside traditional food facility and mobile food (food truck) licenses.[44] In 2019, California further expanded home food licensing to include Microenterprise Home Kitchen Operations (MEHKO) permits, which allowed home cooks to produce and sell hot foods.[45] These expansions in licensing were accompanied by minimal but necessary training requirements, inspections by county public health departments, and restrictions on revenue and the size of the business.[46]

We introduce novel empirical evidence about how these new licenses limit the harms of licensing and create benefits for underrepresented populations. To begin, we gather the first comprehensive dataset of food business license holders in California through a series of open records requests. Since the passage of the Homemade Food Act in 2012, more than 6,500 cottage food providers have obtained a license in California, constituting more than 3 percent of licensed food facilities in the state.[47] Over two hundred MEHKO license holders have also been licensed, even though very few counties have approved the issuance of MEHKO permits.[48] Based on the names and locations of license holders, we estimate their race, ethnicity, gender, and income.[49] Comparing data across license types, we find that mobile food, cottage food, and MEHKO licenses diversify the identity of license holders and expand consumer access to prepared food.[50]

Mobile food license holders are disproportionately Hispanic and serve low-income areas.[51] Cottage food license holders are disproportionately female. MEHKO license holders are disproportionately Black.[52] These licenses tend to be located in food deserts, as designated by the United States Department of Agriculture (USDA), where access to quality nutrition is low.[53] We interpret the findings as evidence that carefully targeted licensing expansions can fight inequality and create a more inclusive market for food.

Given the benefits licensing can have for disadvantaged workers, we suggest that creating competition in licenses would be beneficial in most industries.[54] Our approach suggests that expansions in licensing can be progressive if (1) a new license is created within an existing licensed occupation, (2) the cost of obtaining the license and beginning work is significantly lower than the existing license, and (3) the new license is restricted to deter capture by powerful interest groups. Moreover, licenses should provide pathways for license holders to grow and become more profitable over time.

The first quality is key because imposing licensing requirements on an unlicensed occupation grants a monopoly to the community of license holders, which exacerbates the negative aspects of licensing.[55] Introducing a new license to compete with existing licenses in the same occupation harnesses the power of competition to diversify the population of license holders.

The second quality of a successful expansion in licensing is a low cost of entry, considering both financial and non-financial barriers that a new license holder must overcome to begin work.[56] Training should be available even for those without formal schooling, and registration requirements must be spelled out clearly and in multiple languages.

The third quality is that the license must be restricted so that it does not appeal to more powerful or entrenched interests in the same market.[57] We propose that restrictions on the physical size or location of the business would help diversify the market without unduly limiting the success of new license holders.

Finally, we propose that any expansion in licensing must provide license holders pathways to growth, whether through access to “upgrades” to more prestigious licenses or through a defined path to profitability.[58] Licensing can therefore enable, rather than limit, social mobility.[59] This approach will help minimize the downsides of licensing while emphasizing the significant benefits licensing can create either for license holders or their communities.[60]

In summary, carefully designed expansions in licensing cannot negate all ill effects licensing has historically wrought, but they can help harness the worker and consumer protection benefits for the neediest populations. Part I explains the effects of licensing on inequality, both positive and negative. Part II describes the current state of licensing reform, starting with policymakers’ past attempts and ending with the unlikely success story of advanced practice nursing. Part III introduces our case study of food businesses, describes its importance, and provides statistical evidence from novel data in California. Part IV details the qualities of successful licensing reform and concludes.

I. Licensing and Inequality

By its very nature, occupational licensing creates inequality. License holders are privileged with the ability to enter an occupation, while other workers are limited and threatened with legal action if they engage in unlicensed practice of the same occupation. Moreover, there are costs to obtaining a license that prevent low-income, minority, and otherwise disadvantaged individuals from joining the privileged group. Licensing regimes usually require workers to pay licensing fees and undergo some type of costly training. There are additional costs from having to satisfy ongoing compliance requirements.[61] Despite critics regularly mentioning these costs,[62] occupation licensing has continued to grow, suggesting that some benefits of licensing do accrue to license holders and their customers. In particular, licensing tends to increase the quality of goods and services for consumers. Licensing also increases wages for license holders, benefiting underpaid workers.

What impact does licensing have on minorities and other disadvantaged populations? Empirical data has shown that occupational licensing has coincided with the growth of economic inequality over the past fifty years.[63] Moreover, legal scholars and sociologists have shown how licensing regulation has been historically misused to exclude racial minorities and other disadvantaged workers from lucrative careers. For example, David E. Bernstein explains the discriminatory practices enabled by licensing regimes, arguing that licensing was often intended to exclude disadvantaged minorities from lucrative occupations.[64] Bernstein gives several examples of facially neutral licensing laws that were enforced by discriminatory institutions that used their discretion to prevent minorities from becoming doctors, plumbers, and barbers.[65]

Modern empirical research has provided a more nuanced picture of how licensing impacts minorities. In this Part, we summarize recent research with a focus on two key roles played by licensing regimes and describe their impacts on vulnerable and disadvantaged populations. First, we consider the role of licensing as a barrier to entry. Second, we consider the role of licensing as a signal of quality.

A.      Licensing as a Barrier to Entry

Licensing creates barriers to the entry of new workers by requiring potential entrants in a particular field to satisfy costly regulatory requirements, such as education, testing, and registration.[66] This feature of licensing has caused concern because potential entrants may find it too costly to overcome these barriers, causing labor shortages and limiting the availability of the services licensed workers are providing.[67] Moreover, consumer prices may increase. Conversely, license holders benefit from fewer competitors entering their market, as evidenced by higher wages in licensed occupations. The following section analyzes the differential impacts of these costs and benefits on inequality.

1.       The Costs: Lower Labor Supply and Higher Prices

Barriers to entry decrease the supply of labor and raise prices in a market, causing significant harm to unlicensed workers and consumers. Some evidence shows that women, racial and ethnic minorities, and other disadvantaged populations bear the highest of these costs.

To quantify the overall number of jobs lost due to licensing, Peter Q. Blair and Bobby W. Chung use nationwide survey data. Their approach compares the share of workers in a specific occupation in a state where that occupation is licensed, relative to a bordering state where the occupation is unlicensed.[68] The assumption underlying their work is that people in licensed states are similar to those in unlicensed states, but for the regulatory regime they face. When those assumptions hold, Blair and Chung find that licensing causes a more than 20 percent drop in the supply of labor, measured discontinuously at the state border.[69] The drop persists even when comparing jobs across borders with similar wages and licensing requirements on either side.

The costly effects of licensing-induced barriers to entry are likely to disproportionately impact disadvantaged workers. In early work, Stuart Dorsey documents the harms licensing regimes impose on workers who do not overcome these barriers to entry.[70] Using data on written cosmetology exams in Missouri and Illinois, Dorsey shows that low-income, Black, and immigrant test takers had higher failure rates than less disadvantaged populations.[71] Drawing on a variety of contemporaneous work, Dorsey demonstrates that licensing regimes take advantage of differences in background qualification, levels of education, and income to systematically screen out disadvantaged applicants.[72]

Chung provides a modern empirical example, studying real estate agents.[73] The paper focuses on the introduction of Illinois’ 2011 amendment to the Real Estate License Act.[74] The amendment required licensed agents to complete thirty hours of training and pass an exam to renew their license.[75] To evaluate the effect of this rule, Chung gathers administrative data on real estate agents’ registrations over time across the country.[76] Chung then compares agents affected by a shift in licensing law in Illinois with a “synthetic control” group of agents with similar characteristics outside Illinois.[77] Comparing the Illinois agents to those in the control group, Chung finds that an increase in licensing requirements caused a drop in agents’ license renewal rates.[78] This drop in employment specifically impacted women, who exited in larger proportions.[79]

A lower supply of labor means that licensed individuals who do enter the market can command higher prices. As a result, consumers will have to pay more, if they can afford to purchase those goods or services at all. Chiara Farronato, Andrey Fradkin, Bradley Larsen, and Erik Brynjolfsson demonstrate these effects using data from an online platform that matches homeowners with home improvement service providers, such as painters, designers, and contractors.[80] They compare within occupation across states with and without licenses, and confirm the effect found by Blair and Chung—fewer workers are available in licensed occupations. Moreover, Farronato, Fradkin, Larsen, and Brynjolfsson have information about how much workers charge for their services when facing more or less stringent licensing criteria.[81] More stringent licensing regimes were associated with a 3.9 percent higher price to consumers.[82] Though there is no analysis in this paper of which consumers pay these higher prices, a large literature on “retail redlining” suggests that minority customers often pay more for food, loans, and other goods and services.[83]

Taken together, the scholarly research shows that there are severe discriminatory impacts of licensing on the selection of workers allowed to enter an occupation. Furthermore, there are likely additional negative impacts on vulnerable consumers who face higher prices in markets where workers must be licensed. The barriers to entry created by licensing, both historically and in modern institutions, have the potential to worsen existing social inequality.

2.       The Benefits: Higher Wages for License Holders

The barriers to entry that licensing introduces are not entirely harmful, as their enduring popularity suggests. For workers who can overcome barriers to entry, licensing weakens competition and decreases risk.

Farronato, Fradkin, Larsen, and Brynjolfsson document that when consumer prices increase for home services, the natural consequence is an increase in wages for license holders.[84] Morris M. Kleiner and Alan B. Krueger use a large dataset to estimate that licensed occupations enjoy 18 percent higher wages than unlicensed occupations.[85] Edward J. Timmons and Robert J. Thornton document that wages of licensed radiologic technicians are nearly 7 percent higher compared to identical counterparts in states without a licensing requirement.[86] Kim A. Weeden expands this analysis to compare licensing with other laws, such as credentialing, certification, and unionization, in its effects on wages.[87] Weeden finds, in line with other scholars’ estimates, that licensing creates a 9 percent premium, while credentialing and certification seem to have even larger wage effects.[88]

Though disagreements exist about the size and significance of a licensing wage premium,[89] theory suggests that barriers to entry of all types cushion workers from market fluctuations.[90] Nick Robinson refers to these benefits as “buffering producers from the market” and explains that workers, in particular, need these benefits as other worker protections, such as labor unions, have declined in influence.[91] The added job security, along with the attendant freedom to invest in a long-term career, can make licensing a valuable tool for disadvantaged workers.[92]

Recent empirical work suggests that wage increases disproportionately benefit minority and female workers by closing wage gaps. Blair and Chung study the effect of licensing in professions on the employment of Black men.[93] Using a large dataset across multiple professions, they find that licensing decreases the Black-White wage gap.[94] They estimate that licensing increases White men’s wages by 3.6 percent but increases Black men’s wages by 16.3 percent on average, negating baseline disparities in wage.[95] Similarly, Xing Xia shows that licensing can decrease race-based wage gaps between female workers, using data on the market for dental assistants.[96] New X-ray licenses were introduced between 1970 and 2010 to increase dental assistants’ scope of practice.[97] Xia finds that in states with X-ray licenses, wages for non-Hispanic White dental assistants fell by 4 percent and the wage gap with minority dental assistants decreased by 8 percent.[98]

Licensing creates barriers to entry that could significantly benefit minority license holders. Higher wages, more job security, and lower wage disparities would overwhelmingly benefit vulnerable groups because they face more risk and have less security than more privileged populations.[99]

B.      Licensing as Quality Signal

A key theoretical benefit of licensing is to certify that any worker practicing in a licensed occupation can provide a minimum quality of service.[100] Hayne E. Leland describes the problem as a variation on George A. Akerlof’s “Market for Lemons.”[101] A consumer buying a complex service, such as home repairs, will not know before their purchase whether or not the service provider will do a good job. Without a licensing regime, consumers will know that they will occasionally lose money on repair jobs, ultimately decreasing their willingness to pay for repairs. High-quality repair people will not be able to communicate their skill to consumers because all workers will claim that they can do the job.

A signal of quality that is costly and only worth obtaining for high-quality workers distinguishes high-quality from low-quality service providers and solves the quality-of-service problem.[102] Licensing is an important signal of quality, since it requires training, registration, and other tasks that only high-quality service providers are able to complete. Then, consumers will be willing to pay more to hire a licensed repair person, confident that they will be able to complete the job. Licensing can improve both workers’ and consumers’ well-being by creating more trust in markets that otherwise are fraught with misinformation.

For licensing to work as intended, however, consumers must be aware of the licensing regime and trust that it only licenses high-quality workers. However, licensing standards set internally by existing market entrants may be excessively high, resulting in unnecessary exclusion of high-quality workers. Below, we describe how these costs and benefits may differentially impact disadvantaged populations.

1.       The Costs: Inattention and Unintended Consequences

Licensing regimes can fail to benefit consumers if they do not value the qualities licenses promote or if they have the unintended consequence of excluding workers or consumers from markets. Moreover, an inapt licensing regime that does not directly benefit consumers creates costs, which are more often borne by vulnerable groups.

Farronato, Fradkin, Larsen, and Brynjolfsson provide an example of consumer indifference to licensing.[103] Analyzing an online platform that matches homeowners with home improvement service providers, the authors estimate consumers’ willingness to pay a premium for licensed service providers.[104] They show that on average, consumers in the home improvement market have the same willingness to pay for licensed and unlicensed workers.[105] Despite this, consumers in markets that require licensing have less access to service providers since fewer providers exist in the market.[106]

Whether or not consumers value licensing, there is empirical evidence that even successful licensing interventions that increase quality of service have unintended negative consequences. For example, they decline service availability. Janet Currie and V. Joseph Hotz study daycare regulations to demonstrate an important example in the childcare context.[107] They study the effect of minimum education requirements using outcome survey data that includes deaths and serious injuries.[108] They show that an expansion in education requirements for daycare workers decreases accidents and increases the quality of daycare provided.[109]

But unintentionally, this regulation hurts a subset of children by limiting their access to licensed daycares and pushing them into more informal arrangements.[110] Even though average injury rates decline, the children excluded from daycare may have higher injury rates and receive lower quality care.[111] Currie and Hotz’s work also shows that the benefits of daycare quality increases accrue disproportionately to privileged populations, such as White children and children of college-educated mothers.[112]

2.       The Benefits: Less Discrimination and Higher Quality

Despite the costs, signaling quality through license acquisition may have specific benefits for disadvantaged workers. Licensing conveys the quality of a worker to two audiences—the labor market and the consumer market. In both instances, empirical work shows that minorities receive particular value from licensing.

In labor markets, licensing provides an independent signal of workers’ competence. Informative signals can combat discriminatory hiring practices if employers are biased against hiring minority workers due to perceived gaps in competence.[113] Licensing benchmarks can help ameliorate employer bias by creating objective standards of competence that are more difficult for employers to ignore.

Several empirical papers provide support for this theory. Marc T. Law and Mindy S. Marks show, in an influential paper, that licensing benefited female and Black worker participation in some occupations.[114] Gathering data on workers in eleven occupations between 1870 and 1960, Law and Marks code the differential adoption of licensing regimes across states during that time period.[115] For each occupation, they estimate the effect of licensing on Black and female participation. Their results are mixed but not entirely negative. Licensing decreases the number of Black barbers, which is consistent with historical work that suggests barber licensing regimes were specifically intended to exclude Black workers.[116] On the other hand, licensing increases the number of Black nurses and the number of female engineers, pharmacists, plumbers, and nurses.[117] Law and Marks conclude that licensing does not necessarily harm minorities in an occupation.[118] Instead, the effect of licensing depends heavily on the circumstances, the occupation, and the licensing authority’s intent.[119]

Other papers provide support to this view. Blair and Chung show that licensing can combat racial discrimination in hiring.[120] Using a nationwide database of state licensing changes, they compare the effects of licensing in states with and without “Ban-the-Box” (BTB) rules, which limit employers’ access to employees’ criminal histories.[121] Previous literature had suggested that BTB rules increased employer discrimination against Black men because employers were replacing individual information about criminal records that they had before BTB with discriminatory beliefs.[122] But Blair and Chung show that licensing disproportionately benefits Black men in BTB states, which may fight labor discrimination.[123]

Other disadvantaged groups also benefit from licensing. Beth Redbird and Angel Alfonso Escamilla-García show that these benefits extend to skilled immigrants.[124] Their work compares the likelihood that adult-entry foreign-born workers are included in a particular occupation after they enter the United States.[125] They find that workers are more successful in obtaining positions in licensed occupations than in unlicensed occupations.[126] Redbird and Escamilla-García posit that licensing substitutes foreign-born workers’ lack of network in the U.S. labor market.[127] Taken together, the literature on licensing and its impact on disadvantaged groups suggests that licenses help female, Black, and foreign-born workers fight informal labor market exclusion by privileged groups.[128]

Beyond signaling to employers, licensing can directly improve the quality of services being provided by licensed workers. These benefits often accrue to minority populations, who are otherwise most vulnerable to low-quality or fraudulent transactions. Two high-profile examples from contemporary empirical literature illustrate this point. Bradley Larsen, Ziao Ju, Adam Kapor, and Chuan Yu show that more stringent licensing improves the lower end of the teacher quality distribution and increases the quality of teaching.[129] Using survey data, they demonstrate that teacher quality, proxied by the selectiveness of teachers’ universities, improves when licensing stringency increases in contexts where initial quality is lower.[130] They find no disparate effect on high-minority or high-poverty districts even within this sample.[131]

In the healthcare industry, D. Mark Anderson, Ryan Brown, Kerwin Kofi Charles, and Daniel I. Rees study the effect of licensing midwives on maternal and infant health.[132] Between 1900 and 1940, twenty-two states introduced licensing requirements for midwives, including educational requirements and more subjective assessments.[133] Anderson, Brown, Charles, and Rees gather data on state and municipal mortality rates of mothers and babies, and they compare states with no change in their licensing laws to those that introduced licensing requirements for midwives in that year.[134] The authors find that licensing midwives decreases maternal mortality by 7 percent and slightly decreases infant mortality.[135] These effects are most pronounced in areas with large Black populations, suggesting that Black mothers and babies benefited most.[136]

Taken together, these studies suggest that licensing as a signal of quality can benefit minority workers and their customers. Licensing appears to most benefit vulnerable communities who, as consumers, are the most likely to receive low-quality goods and services, or who, as workers, may be subject to animus when seeking work. Lack of access to goods and services is the biggest cost associated with licensing, and vulnerable populations bear the brunt of these costs. An ideal licensing reform would increase access without lessening the benefits of licensing. In the following Parts, we consider how licensing reform has been attempted in the past and provide examples for future reform that follow this structure.

II. Stalled and Successful Licensing Reforms

In a 2022 report by the U.S. Department of Treasury, the Biden administration named licensing as a source of decreased labor market competition.[137] The report states that many workers are “subject to excessive occupational licensing requirements that impede their ability to switch jobs across states or their ability to enter a new occupation.”[138] Licensing, among other labor market constraints such as employer monopsony power, non-compete clauses, and misclassification of independent contractors, can weaken the macroeconomy and worsen both firm and worker welfare. The report also notes that “[l]ack of labor market competition contributes to high levels of income inequality,” suggesting that women and workers of color in low-wage occupations bear the brunt of anti-competitive labor market practices.[139] In response, the Biden administration issued an executive order requiring federal agencies to investigate licensing regulations, among other policies, for their anti-competitive effect.[140]

After the report’s release, the Federal Trade Commission (FTC) proposed a rule that would make non-compete clauses unenforceable nationwide.[141] The FTC and Department of Labor began a collaboration to end unfair and deceptive acts and practices that undermine labor market competition, naming misclassification of independent contractors and one-sided contract terms as specific targets.[142] Under the Biden administration, the Department of Labor made it a priority to protect employees who are barred from suing their employers due to mandatory arbitration agreements.[143] In contrast, licensing reform saw no action despite public outcry.[144]

This Part investigates why some reform proposals have succeeded while others have stalled. To begin, we describe the long history of proposals to limit or dismantle licensing regimes. Many of these efforts faced pushback from both licensed workers and licensing authorities. Despite these challenges, there is one success story where an industry limited the power of an entrenched licensing authority: the expansion of advanced practice nursing, which curbed the dominance of medical doctors and the American Medical Association (AMA). We then explain how this example can be generalized to address challenges created by licenses across industries.

A.      Stalled Proposals for Licensing Reform

A long literature crossing multiple fields has criticized the growth of occupational licensing. Legal scholars have discussed the role licensing has played in limiting the freedom to contract and have proposed that licensing regimes should be subject to antitrust scrutiny.[145] Sociologists have noted that licensing can be a mechanism of closure, restricting access to a community and enabling exclusion of disadvantaged populations.[146] Milton Friedman warned in Capitalism and Freedom that licensing could have negative effects by restricting the availability of professionals such as medical doctors.[147] Since then, economists have shown multiple examples where licensing restricts entry without a commensurate increase in the quality of workers entering an occupation.[148]

Critics of occupational licensing have called for a multi-pronged approach to limit its harms. First, some proposals have centered around holding licensing boards accountable for overly protectionist policies. Second, scholars and policymakers have proposed to erode the exclusivity of licenses by harmonizing standards across states, allowing expedited entry into certain industries for specific populations, and introducing regulatory barriers to slow the increase in licensing authorities’ power.[149] Third, the most radical proposals have called for repealing licenses in favor of less onerous regulations,[150] using federal power if necessary to undermine state law.[151]

Aaron Edlin and Rebecca Haw summarize the first approach and argue that antitrust scrutiny of licensing boards will be most effective in limiting the harms of licensing. They liken licensing boards to cartels because of the boards’ anti-competitive practices, which limit entry of potential workers and raise costs to consumers without a commensurate increase in quality.[152] The authors chronicle the significant increase in licensing beyond historically regulated professions, such as doctors and lawyers, to services like African-style hair braiding and eyebrow threading, which have traditionally operated without licenses. They describe how the Supreme Court has provided immunity to licensing boards from federal antitrust liability as long as a court finds the board’s policies coextensive with state action. Given these immunity defenses, the only avenues of relief plaintiffs can pursue are due process and equal protection claims under the Fourteenth Amendment.[153] However, constitutional challenges are rarely won because licensing boards only need to show their action is rationally related to any legitimate state interest.

Edlin and Haw argue that antitrust law, as opposed to constitutional law, better addresses harms to consumers and advocate imposing Sherman Act liability on state boards.[154] They propose a three-prong test which balances the benefits of a licensing restriction (e.g., ameliorate information asymmetry) against its anti-competitive costs. Under this framework, courts must consider whether there is a legitimate reason for the licensing restriction, analyze the fit between the restriction and the problem, and inquire into less restrictive alternatives.[155] This analysis would require state boards to justify their licensing restrictions by demonstrating a proportionate benefit for consumers.

Rebecca Haw Allensworth’s fifty-state survey finds that self-regulated licensing boards pose a serious threat by raising prices, limiting employment, and reducing the availability of services, which cost consumers approximately $116 billion annually.[156] The survey, which examines membership in 1,790 state occupational licensing boards, finds that 85 percent of licensing boards are statutorily required to be made up of a majority of practitioners with licenses issued by the board itself.[157] Professional membership power is also strengthened by special voting rules that relegate nonprofessional members to nonvoter status and practices that permit long-time vacancies of nonprofessional member seats.[158]

In 2015, the Supreme Court opened up state licensing boards to antitrust liability in North Carolina State Board of Dental Examiners v. Federal Trade Commission.[159] In North Carolina, state law mandated that six of the eight members of the State Board of Dental Examiners must be licensed dentists.[160] One seat was reserved for a dental hygienist, and the last seat was to be occupied by a “consumer” appointed by the Governor.[161] Dentists began whitening teeth in the 1990s. By the early 2000s, non-dentists were also providing teeth whitening services but at a lower price.[162] Several dentists complained to the Board about the rise in competition for teeth whitening. The Board ultimately issued at least forty-seven cease-and-desist letters to non-dentist teeth whitening service providers and sent letters to mall operators advising they evict violators from operating in their malls.[163] In 2010, the FTC filed an enforcement action against the Board, alleging its actions preventing non-dentists from providing teeth whitening were anti-competitive and unfair methods of competition that violated section 5 of the FTC Act.[164] The question presented to the Court was whether federal antitrust regulation protected the Board’s actions through state-action immunity.[165] The Court held that state boards controlled by active market participants may only enjoy state-action immunity if their actions are “actively supervised” by the state.[166]

Allensworth writes that the Supreme Court’s decision prompted a flurry of antitrust lawsuits against state licensing boards based on a variety of anti-competitive theories. Some boards were accused of imposing unfair entry barriers, while others were alleged to have suppressed technological advances that threatened existing practitioners’ profits.[167] Despite an increase in antitrust lawsuits, the Court’s ruling raises further questions about what “controlled by ‘active market participants’” might look like in a “‘mixed’ board” of professionals (e.g., dentists and hygienists constitute a majority but each group in itself does not).[168] Additionally, the Court’s jurisprudence on what constitutes adequate supervision by the state is significantly less clear.[169]

Separate from legal uncertainty, state boards may see membership changes as a safer route to immunity than seeking state supervision in order to avoid public scrutiny.[170] Despite the apparent success in holding licensing boards accountable for anti-competitive conduct, the real impact of North Carolina Board of Dental Examiners has been limited. A growth in active supervision and a subsequent expansion of “state action” immunity have attempted to insulate licensing boards from liability.[171]

Since the Supreme Court case, scholars and policymakers have shifted their attention to proposing limits on the exclusivity of licensing. Organizations such as the Cato Institute have proposed a more drastic solution by stopping all new licensing rules and repealing all regulations that fail a cost-benefit analysis.[172] The Cato Institute has also argued that states should establish independent “sunset reviews” for all licensed professions, where states perform cost-benefit analyses on all current licensing requirements and repeal those that do not generate overall net benefits.[173] In lieu of licensing regulations, the Cato Institute has advocated for the use of market mechanisms to measure an individual’s qualifications. For example, one such mechanism would be a voluntary certification, where individuals can complete a certification to build their credentials for potential employers, but there is no restriction on uncertified workers in an industry.[174] Certification has been lauded as a less restrictive alternative to licensing, since uncertified workers who wish to enter a field cannot be sued by their competitors. Instead, consumers decide whether certification is important to them, allowing workers to distinguish themselves either through certification or other means. For professions where safety is important and certification may be perceived as risky, the Cato Institute has called for states to increase interstate mobility by allowing individuals to carry over their licenses without having to satisfy a new state’s requirements.[175]

The Brookings Institution has similarly proposed that state agencies conduct cost-benefit analyses, focusing on evaluating new occupational licensing requirements. Unlike a full repeal of licenses that fail cost-benefit tests, Brookings has advocated for a more gradual process where the federal government establishes a working group based on expertise in data analysis and policy.[176] This group would then create a set of best practices for regulated occupations and provide financial incentives, such as federal grants, for states to adopt them.[177] It has also suggested that professions, like interior designers, auctioneers, and ballroom dance instructors, that do not pose sufficient risk to health and safety should be reclassified so that they are regulated through certifications or registrations.[178] Like the Cato Institute, the Brookings Institution has also proposed greater reciprocity between states so that license holders do not need to bear additional licensing costs when they move to a different state.[179]

At the federal level, Congress and various presidential administrations have put forth several reforms to improve state licensure. A Joint Economic Committee report proposed requiring state licensing boards find less restrictive alternatives to licensing to maintain immunity from federal antitrust laws.[180] The Obama administration published a framework for policymakers incorporating a number of best practices advanced by the Brookings Institution to gradually reform licensing.[181] For example, the report called for comprehensive, independent cost-benefit assessments of licensing laws, consideration of less restrictive alternative systems (e.g., voluntary state certification), and alignment of licensing requirements across states.[182]

The first Trump administration issued an executive order supporting reforms enacted by states that required licensing boards adopt the least restrictive criteria to licensing and be subject to active supervision by a governmental agency.[183] It also directed all heads of agencies to submit reports to the Director of the Office of Management and Budget (OMB), the Assistant to the President for Domestic Policy, and the Director of the Office of Intergovernmental Affairs (IGA) identifying state and local governments with policies consistent with the executive order and recommending actions to reward those jurisdictions.[184] Most recently, the Biden administration issued an executive order emphasizing the threat of excessive market concentration, especially as the United States emerges from the COVID-19 pandemic. It required agencies to review their policies and enforce rules to maximize competition within regulated entities.[185]

Despite the chorus of voices advocating to limit or dismantle licensing regimes, little progress has been made.[186] Industry insiders have pushed for more protectionist regimes and have guarded against attempts at reform.[187] Even reform proponents have admitted that licensing creates some benefits, complicating attempts at full repeal.[188] Although some small-scale state reforms have passed, federal gridlock provides little assurance of widespread and meaningful change.[189]

B.      An Alternate Approach: The Healthcare Success Story

This Article proposes a way out of the gridlock that has dogged licensing reform. To provide general lessons about implementing effective changes to licensing, we look to the famous example of advanced practice nurses who were viewed as emerging competition to medical doctors. Importantly, we propose an expansion of licensing that does not directly threaten incumbent license holders. The introduction of an alternative license in the same industry as another license allows consumers more choice while empowering a new group of workers.

The economic intuition behind expanding licensing is simple. Licensing authorities that control all entry into a particular market function as monopolies.[190] They have an incentive to limit their supply of labor to keep wages high, harming both potential entrants and consumers. Introducing a competing license within the same industry shifts the labor market to a duopoly. Consumers can choose which license they prefer and hire workers with that qualification. Moreover, a new group of workers can enter an industry that was previously off limits. Introducing an alternative license has the potential to benefit both consumers and underrepresented workers and can sidestep pushback from incumbents who benefit from controlling the licensing structure.

A famous example of this approach in the United States is the growth of advanced practice nursing in the medical field.[191] Access to healthcare provided by medical doctors has been limited over the past several decades.[192] Commentators blame this shortage on the AMA’s overly protectionist policies that restricted the number of doctors qualified to practice in the United States, raising wages but denying care to needy patients.[193]

Since the 1990s, alternate forms of medical licensing have grown in popularity and in their scope of practice, often overlapping with doctors of medicine (MD). These licenses included non-nursing licenses, such as Physician Assistants (PA), as well as several nursing licenses, including certified Nurse Practitioners (NP), Certified Nurse Midwives, Clinical Nurse Specialists, and Certified Registered Nurse Anesthetists.[194] In many cases, advanced practice nurses must work collaboratively with doctors and stay within a prescribed scope of practice to meet the requirements of their license. However, in “full-practice” states, NPs can prescribe medicine, order lab work, and complete procedures within their specialty without an MD’s supervision.[195] Allowing advanced practice nurses to provide care alongside medical doctors expands the number of highly skilled professionals from whom a patient can receive care. For this reason, California recently transitioned to being a full-practice state, with the goal of increasing the availability of healthcare in underserved areas.[196]

This example showcases how expansions of licensing can generate important benefits. Licensing can enable the creation of a well-defined interest group, which can then fight protectionist policies imposed by incumbents. Importantly, in 1973, the National Association of Pediatric Nurse Practitioners (NAPNP) was established, and soon after, the National Organization of Nurse Practitioner Faculties (NONPF) and the American Academy of Nurse Practitioners (AANP) were formed.[197] These organizations provided the institutional power needed to provide training and educational resources within the group as well as lobby legislators to pass bills supporting the profession.

For example, the NONPF published several reports in the 1980s on program standards for NP curricula and hosted an annual conference that quickly became a vital convening of NP faculty.[198] In 1987, the AANP conducted a survey of its membership to measure medical malpractice liability insurance coverage across the organization and helped members find affordable coverage.[199] The AANP served as a nationwide coalition of various NP groups and advocated for broader federal changes to address challenges NPs faced. At the AANP’s national meeting in 1996, members raised concerns about struggles obtaining reimbursement for services, and the AANP quickly mobilized around the issue.[200] The AANP raised funds to hire a lobbying firm and successfully pushed for the Primary Care Health Practitioner Act of 1997. Congress ultimately passed this legislation in the Balanced Budget Act of 1997, thus granting NPs provider status to bill Medicare directly for all services provided, a right historically reserved for MDs.[201]

Another benefit of licensing advanced practice nurses is the legitimization of the profession. Despite having achieved Medicare provider status,[202] NPs’ path to public legitimacy required developing a shared identity, mobilizing for shared needs, and taking political action. NPs originated in the mid-1960s when Henry Silver, a physician, and Loretta Ford, a nurse, developed the first NP training program at the University of Colorado.[203] Nurses and physicians initially opposed the creation of NPs, with some nursing leaders arguing that NPs would take over nursing education and physicians casting the new group as providing “bad doctoring.”[204] However, Silver and Ford recognized that the existing number of physicians was not meeting the demand for primary care and that increasing the nursing supply by expanding training and educational resources was necessary to obtain the public’s trust.[205]

Despite the criticism from incumbents, the number of NP programs grew—reaching over sixty-five programs in 1973 and over two hundred by 1980[206]—and NPs continued to pursue different strategies to legitimize their profession. NP academics and practitioners developed standard curriculum guidelines for NP education and conducted scientific studies showing the efficacy and safety of NP care.[207] Colleges and universities also developed certificate programs and master’s level degrees, which prepared NPs for academic careers.[208] Then, in 1994, the New England Journal of Medicine published a study finding that the quality of primary care provided by NPs was equal to or even higher than that provided by doctors.[209]

Perhaps the most important benefit of such expansion is the role licenses can play in forcing incumbent boards and trade groups to release their chokeholds on a market. The healthcare example demonstrates how creating a license outside the AMA’s control allowed a new group of workers to organize. Today, states grant power to Boards of Nursing or Boards of Medicine to set the licensing requirements for medical professions, including NPs.[210] Despite their nonprofit status, these organizations have the same incentives as the AMA to limit the supply of new entrants into these lucrative professions.[211]

Benjamin J. McMichael writes about ways NPs engage in political spending to increase their scope of practice.[212] The paper shows that NP groups spend more on lobbying in states with laws granting them greater autonomy.[213] This extends to hospital groups that have an interest in reducing costs by allowing PAs to perform more tasks independent of physician oversight.[214] When hospital groups increase their political spending, legislatures pass more laws that expand PA autonomy.[215] This study further finds that long-term political lobbying is most important, because spending measured over four years has greater and more statistically significant effects than spending measured over shorter periods.[216]

Despite the benefits of introducing and expanding advanced practice nurse licenses, several structural issues remain. Advanced practice nurses have had differential success challenging medical doctors’ dominance across different healthcare markets. Restrictions on NP scope of practice vary heavily across states.[217] Many states are “full practice” states where NPs are unrestricted, suggesting that nursing degrees could eventually replace some MD degrees.[218] However, states with narrow NP scopes of practice often put MDs in charge of NPs, further cementing MD power over the healthcare market.[219]

Moreover, though advanced practice nursing provides an easier path to entry than the MD path, barriers remain that allow the current hierarchy to persist. First is the high cost of training. When an expensive degree is necessary for a lucrative career, the industry may give in to credentialism and inadvertently replace substantive learning opportunities with certifications that can simply be purchased without significant investment.[220] Several scholars have studied medical boards and their disciplinary proceedings and found that board discipline has the potential to be effective but is plagued with inefficiency and biases.[221] As in other contexts,[222] critics allege that boards selectively enforce rules in favor of privileged populations.[223] There are no options within the United States for advanced practice nurses to become medical doctors.[224] Both career paths require similar work, including detailed classes covering material on anatomy, physiology, diseases, and body systems, and exams testing that material.[225] Despite the overlap, credentialing authorities on both sides refuse to accept work from the other track to ease the path to licensing.

Advanced practice nursing demonstrates how multiple licenses within the same occupation can prevent monopolistic behavior and promote market competition. The benefit to workers is that they can choose to satisfy the requirements of being a licensed NP rather than an MD, which provides an additional thirty-nine thousand spots in advanced degree programs for students interested in practicing medicine.[226] The benefit to consumers is that they have access to care from NPs as well as MDs, which particularly helps consumers in rural areas.[227] However, there are still costs associated with these programs, including high entry fees and little mobility across licenses. Yet, this licensing reform model creates diverse pathways for workers while maintaining quality and wages and can provide a template for other licensed industries.

C.      Diversification Through Licensing

Licensing reform in the style of the healthcare industry has great promise, but historically, negative effects of licensing have disproportionately impacted vulnerable populations.

The story of advanced practice nurses, however, has emerged as a positive example in which licensing improves diversity. The growth of advanced practice nursing has allowed more diverse healthcare workers to treat patients. Researchers find that 93 percent of NPs, compared to 54 percent of primary care physicians, are female.[228] NPs also provide care in high-need areas, serving more rural and urban areas compared to physicians who most commonly practice in suburban areas.[229] Surveys further show that patients cared for by NPs report higher levels of trust than patients cared for by physicians.[230] Notably, older, Black adult patients report high levels of trust in their NPs despite reporting moderate levels of mistrust in the healthcare system.[231] These findings show how the rise of NPs increases provider diversity as well as improving access to high-quality services for underserved communities.

The growth of advanced practice nursing also combats wealth inequality by lowering the financial cost of entry into healthcare professions. The biggest barrier to practicing medicine is completing the competitive training, including entry requirements, examinations, and practice experience. MD degrees are highly selective and take four years after an undergraduate degree, followed by a minimum of three years of residency. The total cost of an MD, after an undergraduate degree, averages $200,000.[232] On the other hand, NPs follow their undergraduate training with a two-year master’s program, followed by a two-year doctor of nursing practice degree program, meaning that their training can take three years less than an MD’s training.[233] The total cost of an NP’s graduate training averages less than $100,000, about half the cost of medical school.[234] As a path to practicing medicine, NPs have easier access than MDs.

That being said, advanced practice nursing degrees are still costly and highly competitive. Four-year undergraduate degrees are themselves difficult to access and complete successfully, especially for disadvantaged populations.[235] Roughly sixty-five thousand students wishing to enter nursing education had their applications rejected by nursing programs, with fifty-five thousand of those turned away at the undergraduate stage and an additional ten thousand at the graduate level.[236] Moreover, NPs enter the workforce with an average of more than $150,000 in student loan debt.[237] Highly qualified healthcare workers are less likely to be racial or ethnic minorities, and less likely to come from a low-income or first-generation college background.[238] Therefore, significant work still needs to be done to make medical careers accessible to disadvantaged workers.

Advanced practice nursing is a useful model for transforming occupational licensing from a source of inequality into a powerful weapon against inequality. Replicating its successes and remedying its failures would benefit workers and consumers across occupations. In particular, advanced practice nursing successfully expanded healthcare access and provided new professional roles, disproportionately benefiting vulnerable consumers and workers. At the same time, the new licenses were still costly to access and put these jobs out of reach for workers with the lowest levels of wealth and opportunity. To describe how licensing reform can work in more accessible professions, we introduce a novel empirical example supporting our policy proposals.[239]

III. Food Businesses as a Case Study

Industries that provide necessities, such as food, are essential to consumers and workers alike, making them important case studies for policy reform. Food, in particular, has powerful effects on inequality.

Inequality in access to quality food is pervasive and precipitates or worsens nearly every other form of social inequality in modern society.[240] Prior to 1900, food production and preparation were largely unregulated.[241] Since the introduction of the Pure Food and Drug Act of 1906, the growth, harvesting, preparation, and sale of food have steadily become more heavily regulated.[242] Despite well-intentioned government action, however, scholars and policymakers have noted that access to high-quality nutrition did not universally increase during that time.[243] Instead, food became a source of stratification, separating privileged and disadvantaged populations.[244] Moreover, neighborhoods that tended to be poor or Black had less access to healthy food, resulting in “food deserts” across the United States.[245] These inequalities persist throughout the food ecosystem, with minority workers facing fewer opportunities and lower wages than other workers.[246]

We collect novel empirical data to study whether expanding food business licensing can fight these inequalities. Below, we describe the evolution of food licensing and its intersection with minority and underprivileged populations in California, culminating in California passing its Homemade Food Act in 2012. We then highlight how food licensing can reduce inequalities for both food producers and consumers. Next, we present our data and the results of our analysis. Finally, we discuss the implications of our findings for the design of licensing regimes generally.

A.      New Frontiers of Food Business Licensing

1.       The Food Freedom Movement and California’s Homemade Food Act

Food available for commercial purchase must meet state and federal requirements. States have dominion over food safety and distribution regulations under their broad policy powers.[247] At the same time, the U.S. Food and Drug Administration (FDA) provides a model Food Code as federal guidance, recommending best practices to prevent foodborne illnesses, but it is not binding unless a state or local government incorporates it into their statutes.[248] Every state except California has adopted some version of the Food Code.[249] The FDA defines all places where food is produced for retail as “food establishments” and traditionally excludes home kitchens from this category.[250] However, the FDA Food Code has historically provided exemptions for foods prepared in home kitchens that are deemed low-risk for developing harmful pathogens and are sold at religious or charity bake sales.[251]

Food industry participants were not satisfied with this limited exemption. A bipartisan movement began to expand consumers’ access to home-prepared foods. Known in many states as the “Food Freedom” movement, this bipartisan push to expand food production was supported by small farmers, home cooks, and consumers’ demand for farm-to-table foods.[252] In response to growing demand from home food producers, states passed laws exempting low-risk foods made in home kitchens from the “food establishment” definition through cottage food laws or by creating separate home kitchen regulations.[253] Examples of cottage foods include baked goods without meat or cream, candies, infused alcohols, and vinegars, all of which are relatively shelf stable and unlikely to result in illness due to food mishandling.[254]

Some states have increasingly moved towards allowing more types of cottage foods by adding items to their cottage food list.[255] Others have taken a more expansive approach by permitting all foods, except those explicitly listed in the statute, to be made in home kitchens.[256] Styled as food freedom laws, these are often separate statutes that provide broad exemptions from regulation.[257] For example, Wyoming has the most open food freedom law, which exempts homemade food not containing meat (although poultry is permitted under certain circumstances) from all state licensure, inspections, labeling, and packing requirements.[258] Utah’s Home Consumption and Homemade Food Act similarly exempts home-kitchen operators from licensing and inspection requirements, though it does limit where food can be sold.[259]

Currently, nearly all fifty states have passed some type of cottage food law that permits home food producers to sell a limited type of items at farmers markets and grocery stores.[260] In California, the first iteration of the state’s Homemade Food Act was passed by the state legislature in 2012.[261] The law created a cottage food operations provision within the California Food Code and established two types of licenses: Class A (direct sales) and Class B (direct and indirect sales).[262] It also delegated the duties to permit and inspect home kitchens to counties and cities.[263] The law stated that its purpose was twofold: to provide greater opportunities for entrepreneurial development that could strengthen local economies and to increase access to sustainable and healthy food options for low-income and rural communities.[264] The statute initially capped gross annual sales at $50,000,[265] which legislators later increased to $75,000 for Class A and $150,000 for Class B licensees.[266] The California Department of Public Health maintains a list of approved cottage food categories, and cottage food operators may request that the department consider adding a food product or category to the list.[267]

California’s 2012 law does not allow home cooks to sell prepared hot foods.[268] This restriction was partially lifted in 2019, when California introduced the MEHKO permit.[269] MEHKO permits were issued to home kitchens inspected by public health authorities and required permit holders to undergo significant food handler training.[270] Permit holders could then legally sell temperature-controlled foods, essentially operating a restaurant from their homes.[271] However, MEHKO permits came with some barriers. Most importantly, counties had to opt in to begin issuing MEHKO permits.[272] As of May 2022, when our data were collected, only nine counties had begun issuing MEHKO licenses: Riverside, Alameda, San Mateo, Santa Barbara, San Diego, Solano, Imperial, Lake, and Sierra.[273] Total sales were initially capped at $50,000, and the cap has increased by less than $10,000 in the subsequent four years.[274] Home cooks can serve only thirty meals per day, or sixty meals per week, and must sell food directly to a consumer the same day it is cooked.[275] Despite these restrictions, California’s MEHKO law is one of the most permissive in the country and represents the first attempt of its kind nationwide.

2.       Disparate Impact on Ethnic Foods

The regulation of food production intersects with the culture and identity of both food producers and consumers, highlighting the role that law can play in the inclusion (or exclusion) of minorities in the food ecosystem. Historically, many expansions in food availability have faced pushback due to potential safety issues.[276] Ethnic foods face particular challenges due to widespread ignorance of cultural food practices.[277] Food law and policy discussions often exclude ethnic foods, resulting in a limited understanding of both the benefits and costs of added food variety.[278]

Coined the “Great Taco Truck War” by Time magazine, the legal fight between food trucks and Los Angeles County exemplifies the challenges ethnic food producers face.[279] In 2008, Los Angeles County passed an ordinance prohibiting food trucks from parking in one spot for more than an hour.[280] Violators faced a $1,000 fine, six months in jail, or both.[281] Officials defended the ordinance, citing several complaints from food establishments about unfair competition from food trucks and complaints from property owners about noise and littering.[282]

But the backlash from food truck operators, residents, and food writers was swift and strong.[283] In Los Angeles, taco trucks provide more than food—they represent the city’s cultural richness and immigrant origins.[284] For example, taco trucks sold more than tacos and burritos generally associated with these vendors; they also infused Korean, Chinese, Vietnamese, and other culinary influences.[285] Some trucks specialized in Brazilian, Indian, and other international cuisines, while others focused on desserts or vegan and vegetarian offerings.[286]

A Los Angeles Superior Court judge ultimately invalidated the ordinance on the basis that it was not rationally related to a government purpose, was preempted by state law, and unconstitutionally discriminated against food trucks for the benefit of restaurants.[287] Despite the legal victory, this event illuminated the tensions between those who see food trucks as a source of affordable food associated with various immigrant cultures and those who see them as foreign, unsanitary, and public nuisances.[288]

The battle over health and safety standards for certain Asian foods provides another example of the regulatory tension around ethnic foods. In July 2009, public health inspectors descended on Kun Wo Food Product Inc., a rice noodle manufacturer that distributes its products to over one hundred Bay Area restaurants.[289] The inspectors issued a citation for violating a state regulation requiring certain foods to be held at or below 41 degrees or above 140 degrees Fahrenheit.[290] Later, Willa Liu, daughter of one of the company’s owners, would explain that they could not follow the state regulation because refrigerating the noodles would turn them brittle and inedible.[291] This event was highly publicized, drawing attention from state legislators, such as Senator Leeland Yee, who told reporters that the company was a victim of cultural misunderstanding and overzealous inspectors.[292]

In response, during the 2009–2010 session, Yee proposed SB 888 Food Safety: Asian Rice Based Noodles.[293] The bill sought to exclude rice-based noodles from existing temperature regulations and allow the noodles to remain at room temperature for up to four hours.[294] The bill argued “any change in production would change a standard used by Asian communities for thousands of years.”[295] The fight over noodles was also ultimately resolved with then-governor Arnold Schwarzenegger signing SB 888 into law in 2011.[296]

SB 888 was modeled after AB 187, which permitted vendors to sell Korean rice cakes that have been at room temperature for up to twenty-four hours.[297] At the time, supporters successfully argued that once rice cakes were refrigerated, they would harden and become less marketable and desirable to customers.

This was not the first time food safety laws had clashed with businesses selling traditional Asian foods. Vendors had previously argued that dishes like Korean kimbap (rice wrapped in seaweed and stuffed with meat or vegetables) and Vietnamese goi cuon (cooked shrimp wrapped in rice paper) need to be sold at room temperature.[298] Though they risked citations, vendors stated that refrigeration would harden the food to the extent that customers would not purchase it at all.[299] Inspectors, however, argued that food safety laws were clear—room temperature allows hazardous bacteria to grow in food and sicken people.[300] One program manager at the Orange County Health Care Agency said, “Bacteria know no cultural bounds . . . . Everybody coming from the old country, they bring their cultural baggage with them, and sometimes the baggage doesn’t make good health safety sense.”[301] Tracing a foodborne illness to its source is notoriously difficult, further escalating the debate between food vendors and public health officials.[302]

SB 888 was part of a growing movement to address gaps in food safety laws that prohibited the sale of Asian foods traditionally sold at room temperature. Several years before SB 888 was introduced, AB 2214 directed the California Department of Public Health (CDPH) to evaluate whether traditional Asian foods, specifically banh chung, banh tet (Vietnamese rice cakes), and moon cakes, could stay out at room temperature longer than four hours before accumulating harmful bacteria.[303] AB 2214, like SB 888, attempted to balance food safety with traditional consumption practices.[304]

Although this study contained mixed results, in 2016, then-governor Jerry Brown signed SB 969, which permitted the sale of banh tet and banh chung at room temperature for up to forty-eight hours and removed rice cakes from the category of potentially hazardous foods.[305] However, the bill required labels disclosing the date and time of production and warning that rice cakes must be eaten within twenty-four hours.[306]

Rules that purport to protect consumers from illness have erected barriers for ethnic food producers and consumers to trade lawfully. So far, issues of ethnic food regulation have been considered one by one, for each type of food. The expansion of home food licensing and MEHKO permitting, in particular, could increase access to ethnic foods on a larger scale, since each cook can decide to offer a highly varied menu.

B.      Empirical Evidence on Food Producers

We shed light on the interaction between food regulation and identity by collecting data on food business license holders and identifying their demographic characteristics. To do so, we submitted public record requests for lists of licenses to county environmental health agencies beginning in March 2022.[307] Because responding counties tended to be the largest, we collected data from counties covering more than 90 percent of California’s population. Key data for our analysis include current license holders’ names, addresses, and the type of food facility they operate.[308] Based on this information, we use a variety of datasets to augment the information on these food businesses.

First, we create an estimate of each license holder’s race, ethnicity, and gender based on their name and location, using a technique called Bayesian Improved First Name Surname Geocoding (BIFSG), which the Consumer Financial Protection Bureau (CFPB) uses for fair lending analysis.[309] The method uses Census data on the racial composition of each Census block in the United States to guess the probability that an individual living in that block belongs to a specific race.[310] Then, the method updates the guess based on the individual’s surname and first name.[311] We further adapt the standard methodology by using the Census’s Workplace Area Characteristics data to estimate race by employment location, rather than residence, to account for workers’ commute patterns.[312] Finally, we use data from the Social Security Administration on names by gender to estimate the probability that an individual is female or male.[313]

We then further expand the available information about each food business by merging with a comprehensive dataset on all public and private companies registered in the United States, gathered by Dun & Bradstreet and packaged by Mergent.[314] For the 40 percent of food businesses for which Mergent has information, we can observe the year of incorporation, number of employees, and other registration information. Though the merged sample is incomplete, it includes information on all types of businesses, including traditional food facilities, mobile food facilities, cottage food facilities, and MEHKOs. The full sample of licenses in California contains information for just over 197,000 businesses, of which 13,600 are mobile food facilities, 6,700 are cottage food facilities, and 200 are MEHKOs. The Mergent sample has information for just under 89,000 businesses, of which 2,000 are mobile food facilities, 750 are cottage food facilities, and 3 are MEHKOs. We report characteristics of these license holders below.

Figure 1: Year of Incorporation of License Holders - Mergent Sample

Figure 1 shows the evolution of home food businesses over time for the Mergent subsample. The dataset shows that cottage food businesses existed before 2012, with up to twenty incorporations a year. At this time, there were no cottage food licenses in California, so these businesses must have sold other items, made food to be sold online or in other states, or otherwise managed their business without state licensing. However, after passage of the 2012 Homemade Food Act, we find there was a significant uptick in new incorporations, with nearly fifty registered immediately after the law’s passage. Since then, the number of incorporations has steadily increased, with more than one hundred new home food businesses incorporated in 2019 alone. The graph suggests that the 2012 Homemade Food Act spurred entrepreneurship. The dataset from Mergent includes the number of employees at each establishment and suggests that these new businesses also created many new jobs, with businesses opening after 2012 having four employees each, on average. The total number of jobs created after the passage of the Homemade Food Act is greater than two thousand, just in the Mergent sample alone.

Figure 2 shows the demographic characteristics of the full set of California license holders, as estimated by the BIFSG method. Among food facility license holders, about 67 percent are White, 5 percent are Black, 1.6 percent are Native, and 23 percent are Asian. Mobile food and cottage food license holders are more likely to be White, with an otherwise similar racial distribution. MEHKO license holders, on the other hand, are nearly 14 percent Black. Though MEHKO is still new and not yet widely adopted, the data suggest that this latest expansion in licensing has helped diversify the food business landscape.

Figure 2: Estimated Race of License Holders - Full Sample

  Figure 3: Estimated Ethnicity of License Holders - Full Sample

Figure 3 shows the BIFSG estimates of Hispanic ethnicity for license holders. Though only 33 percent of traditional food license holders are Hispanic, 37 percent of MEHKO license holders and 49 percent of mobile food license holders are Hispanic. In contrast, only 25 percent of cottage food license holders are Hispanic. Then, Figure 4 shows estimates of license holders’ gender. Traditional food facilities’ license holders are 33 percent female, similar to the female fraction of mobile food license holders. However, female license holders disproportionately run home food businesses, with 64 percent of MEHKO and 76 percent of cottage food license holders estimated to be women. Taken together, Figures 2, 3, and 4 suggest that different licenses create different communities. Relative to traditional food facilities’ license holders, mobile food license holders are more likely to be Hispanic, cottage food license holders are more likely to be White and female, and MEHKO license holders are more likely to be Black and female.

Figure 4: Estimated Gender of License Holders - Full Sample

 Figure 5 shows the average income in the Census tract where each license type is located, separately reported by race. Traditional food facilities are located in Census tracts where White households make over $110,000 per year, Hispanic households make $90,000 per year, and Black households make $77,000 per year. Mobile food facilities are located in areas where average incomes are lower, but the White-Hispanic income gap is smaller. Around mobile food facilities, White households make $93,000 per year, Hispanic households make $78,000 per year, and Black households make $55,000 per year. In contrast, incomes in cottage food and MEHKO tracts are higher than those surrounding either traditional or mobile food facilities. Cottage food license holders are also located in high-wage-gap tracts, with White households making $134,000 per year, Hispanic households making $110,000 per year, and Black households making $99,000 per year. However, MEHKOs are located in very different tracts, where there is no statistically significant gap between White, Black, and Hispanic incomes. The low sample size of MEHKOs may drive part of this difference, but it is apparent that home businesses are located in quite different neighborhoods than other food facilities.

Figure 5: Average Income in Tract - Full Sample

Figure 6 shows the location of home food businesses, relative to mobile food and traditional food facilities. For readability, we focus on the San Francisco Bay Area and limit the map to the counties surrounding the Bay. In the majority of Census blocks, most licenses are for traditional food facilities, as shown by the dark or light gray areas on the map. Several prominent green areas on the map, however, show that mobile food facilities dominate some blocks. Many red blocks, where cottage food facilities dominate, also exist. And though they are rare, a few blue blocks, where MEHKOs dominate, are also visible on the map. Home and mobile food businesses do not simply locate in the same blocks where food facilities already exist. Home food businesses, in particular, locate in areas where there are less than one food facility for every one hundred residents. They bring new businesses to blocks where there would otherwise be little or no local food production.

Figure 6: Geography of Food Licenses - Bay Area Counties

Figure 7 confirms that homemade food fills a gap in food production by comparing the location of home food businesses to the map of tracts that the USDA has designated as “food deserts.”[315] The transparent red tracts on the map indicate food deserts. Low-access food deserts are tracts with at least five hundred people, or 33 percent of the population, living more than one mile (urban areas) or ten miles (rural areas) from the nearest supermarket, supercenter, or large grocery store.[316] Low-income food deserts have a similar definition, which focuses specifically on the portion of the population within those tracts that meets low-income criteria.[317] The high overlap of cottage food and MEHKO areas with food deserts shows that home food businesses are important for increasing access to local foods. On average, about 20 percent of traditional food facilities are located in low-access tracts. In contrast, 33 percent of cottage food and 36 percent of MEHKO facilities are located in low-access tracts. Mobile food businesses contribute to diversification of food sources as well. Less than 7 percent of traditional food businesses are located in low-income and low-access tracts. In contrast, 12 percent of mobile food businesses are located in these tracts, providing much-needed variety in the food ecosystem of poor neighborhoods.

Figure 7: Home Food Businesses and Food Deserts - Full Sample

The benefits of diversity in license holder identity and location likely extend beyond our data’s reach. Diversity by ethnicity and race, for example, will likely increase the availability of ethnic foods to local communities, creating inclusivity for food consumers as well as food producers. Moreover, the disproportionate representation of home food businesses in low-access food deserts and mobile food businesses in low-income-low-access food deserts means that licensing regulation may be a key input into public health.

C.      Lessons from Licensing Home Food Businesses

Food business licensing reform can help communities, and especially communities of color, grow. For example, entrepreneurs like Nancy Chang, owner of Purpose and Nourish, one of Alameda County’s first MEHKOs, illustrate how licenses enable businesses to fill community needs.[318] Chang was inspired to start her soup business when her mother was diagnosed with cancer and needed to consume commercial nutritional shakes to maintain her weight during treatment.[319] When a family friend brought homemade soup, the gesture inspired Chang to build a business providing others with the same nutrition-packed soups.[320] For over ten years, Chang worked on starting her business, consulting a dietitian certified in oncology nutrition to develop recipes that supported gut health.[321] But it was not until July 2021, when Alameda County opted in to licensing MEHKOs, that Chang felt confident enough to launch her business.[322] Her business centers on producing plant and bone-broth-based soups, using seasonal ingredients grown from family-operated farms.[323] Since becoming a fully-fledged MEHKO, Chang has established the soup sponsor program, where donors can contribute funds that allow Chang to provide free soup to low-income residents through non-profit partners like the Charlotte Maxwell Clinic and the Women’s Cancer Resource Center.[324] But challenges remain, as MEHKO owners share that profit, meal caps, and the limitation to one full-time employee severely limit their ability to sustain their businesses.[325]

The Homemade Food Act of 2012 and its 2019 follow-up are not the end of the story. There are significant challenges remaining in the food ecosystem that further licensing reforms could address. The main issue is the high income of home food license holders, which could result in home food businesses diversifying the supply of food for wealthy households that do not need additional support. One reason that home food businesses are located in high income areas may be the need for high quality kitchens and sufficient space to run a business from home. Another may be the low revenue limits imposed on these businesses, which make them less attractive as a primary source of income to a needy family. Replacing these restrictions with other less regressive rules could help disadvantaged home entrepreneurs enter the food industry.

Our data show how increased diversity in types of food licenses spurs entrepreneurship, creates jobs, and creates more diversity in food production by race, ethnicity, gender, and location. The passage of the law resulted in a boom of new business incorporations after 2012, even though we counted only businesses large enough to appear on nationwide databases like Mergent. Compared to traditional food facility licenses, mobile and home food licenses gathered more diverse communities of license holders. These alternative licenses also diversified food production geographically, into areas with different income patterns and low access to healthy food. Diversification in the food ecosystem is only becoming more important over time, as widespread alarm grows over obesity, mental health, and other conditions that food impacts.

Our empirical study of home food businesses provides an example of how an industry that has historically been regulated in ways that disproportionately burden minority populations has experienced growth and increased diversity through the creation of new pathways to licensure. The reforms mentioned here are not perfect, and there is more room to grow. However, taken alongside the example of advanced practice nursing, expansions in food business licensing show that it is possible to harness the benefits of licensing regimes for disadvantaged workers with minimal harm to workers or consumers.

IV. Designing Inclusive Licensing Regimes

In this Part, we draw some general lessons from our examples to propose inclusive licensing reforms in other industries. Expansions in licensing can help remedy inequality if (1) a new license is created within an existing licensed occupation, (2) the cost of obtaining the license and beginning work is significantly lower than the prior license, and (3) the new license is restricted to keep powerful interests from capturing its benefits. Finally, the license needs to provide pathways for growth to license holders, whether through access to more advanced licenses or through high profitability.

A.      Creating Competition Across Licenses

Many expansions in licensing over the past fifty years have created licenses in new occupations that were historically unregulated.[326] Such expansions are often justly criticized for limiting access to job opportunities, particularly for minority and disadvantaged workers.[327] Therefore, we propose that further expansions in licensing be restricted to new licenses within already-licensed fields, which create a competing path of entry for workers. The purpose of this reform is to harness the benefits of competition in favor of workers and to create more competitive markets for consumers.[328] When a single license exists within an occupation, it creates a barrier to entry for workers and provides more power to license holders.[329] This power, called “monopsony” in labor market research, lowers employment and can have negative effects on consumers who no longer have access to services these workers provide.[330] Expansions in licensing where a new licensing authority can admit entrants into the occupation help labor markets move away from monopsony and towards a more competitive market.[331]

The California Homemade Food Act, with its expansion in 2019, was quite successful in limiting the scope of licensing to existing licensed occupations. Prior to the entry of cottage food licenses and MEHKO permits, commercial food preparation was restricted to businesses with a food facility or mobile food license.[332] Today, homemade food can now compete with commercially prepared foods in a variety of venues. For example, cottage food operators, food trucks, and MEHKOs can sell at farmers markets, though only after obtaining their business license and, in some counties, an additional public health permit.[333] Researchers find that farmers markets operate as incubators for small businesses, allowing them to take advantage of increased foot traffic and foster relationships with other producers.[334] Vendors gather information about the wider market and can test their products in a supportive environment.[335] Thus, the creation of these new licenses spurs entrepreneurship.

These benefits illustrate that licensing cottage food alone is quite restrictive because of its focus on specific foods. To promote the availability of prepared hot food, all counties should offer MEHKO permits. Further license expansions may be warranted if existing regimes exclude raw produce or other categories of food from sale. Expanding on this approach in other licensed occupations can fight the negative competitive effects of licensing more broadly.

B.      Low Entry Costs

Expansions in licensing are only beneficial if workers entering the occupation can access the new license easily. Obtaining a license is necessarily onerous, including training, examinations, payment of fees, administrative tasks, and ongoing registration and training requirements. Protectionist boards can artificially raise these costs to limit access to the occupation, which makes it important for expansions in licensing to minimize entry costs.[336]

As discussed above, the success of home food businesses as a source of competition for commercial food establishments is partially due to the comparatively low cost and ease of entry. For example, one of the main challenges for starting a home food business is getting a food handler certification and completing the paperwork for registering with state and local public health agencies, including certifying compliance with safe food handling procedures. There are twenty-five choices for food handler certification in California, each of which is accredited by the American National Standards Institute’s National Accreditation Board.[337] Some of these programs cost less than $50 and can be completed in a day, with accessible options for Spanish speakers.[338] The process for obtaining a license is itself explained in multiple languages online.[339]

In contrast, traditional food licenses require an appointment with the public health department, including a meeting about project design and permit applications to use a commercial property safely, with multiple iterations often necessary prior to approval.[340] Once an individual obtains approval, they must commence and complete any work to prepare a commercial space before preparing or serving food. The cost of this process is usually at least $100,000, which they must raise well before obtaining any revenue from the business.[341] In comparison, home food businesses provide a truly low-cost alternative for entering the business of commercial food preparation. Disadvantaged populations would benefit from easier entry into all licensed occupations.

C.      Deterring Capture

One of the challenges in licensing is the power it bestows on special interest groups that can become entrenched and implement anti-competitive policies.[342] Licenses can be designed to minimize the possibility of capture by avoiding common pitfalls of protectionist licensing regimes.

First, and most importantly, the government should directly provide licenses, rather than an independent licensing board.[343] As scholars have noted, occupational licensing boards are private regulators consisting of existing members of the profession, who have an incentive to minimize competition by raising standards for new licenses.[344] Government actors are accountable to the public as well as to license holders, decreasing opportunities for capture. An additional benefit of direct government licensing may be in defining the boundaries of agency jurisdiction.[345]

Second, new licenses should include limitations in their scope to allow different types of licenses to coexist. If an expansion in licensing simply creates a cheaper version of the same license that already exists in an occupation, the same group of license holders will get the cheaper license and utilize their power to exclude new entrants. In the economics literature, these restrictions are called “incentive compatibility” constraints, and they are key to designing systems where two different populations consistently make different choices that are in their own best interests.[346]

The Homemade Food Act does a good job of satisfying these requirements. All food licenses are given exclusively by local public health departments, which limits capture.[347] Moreover, heavy restrictions on revenue, employees, and products keep homemade food licenses from being a viable option for most commercial food businesses.[348] As we discuss in the section below, these restrictions are likely to be too strict, rather than too lax.

Though it is important to design expansions in licensing thoughtfully, there are existing remedies available to remedy capture. Prior experience has shown that antitrust remedies may be helpful if an independent board oversteps its authority to limit unlicensed work in an occupation.[349] Other scholars have suggested that administrative law can help fix the problem in some cases.[350] Taken together, other industries would do best to follow the example of homemade food in designing a fair and impartial licensing system.

D.     Creating Pathways for Growth

One of the biggest challenges facing inclusive licensing regimes is the lack of growth opportunities for license holders. A long line of scholarship has shown that licensing has the potential to limit social mobility by entrenching existing hierarchies.[351] At the same time, license holders can start and run successful businesses, which is a driver of upward mobility.[352] We identify several potential factors that impact whether a licensing regime enables or restricts upward mobility.

First, licensing rules can be overly restrictive, requiring very high entry costs and adherence to rules that limit income. Overly restrictive licensing rules are a problem in a variety of occupations, including both healthcare and food businesses.[353] In healthcare, advanced practice providers’ licenses still limit them in scope, while entry costs, in the form of onerous graduate programs, are high.[354] In food businesses specifically, revenue from home food businesses is restricted.[355] Low caps on profit mean that a home food business cannot support a family, making social mobility unlikely.

Second, enforcement regimes that are punitive rather than collaborative can present challenges to growth, with disproportionate impacts on low-income and minority workers. Many licensing enforcement regimes are either ineffective in screening out bad actors[356] or explicitly screen out good, but disadvantaged, workers on subjective bases.[357] Similar issues occur in the food business context, where research suggests that Asian restaurants received harsh treatment from health and safety inspectors during the COVID-19 pandemic relative to comparable non-Asian restaurants.[358] In most industries, licensing enforcement is permeated with discretion that can be used to worsen social inequality.

Third, the cost of switching between licenses within an industry may be prohibitively high, limiting workers to the same job throughout their careers. In the food industry, there is more consistency across credentials, with food handler certification being similar across license types.[359] Unlike in medicine, there have been high-profile stories of home food businesses that transitioned to commercial spaces and successfully expanded.[360] Yet, the permitting process for commercial food businesses differs significantly from home food businesses, providing no natural bridge from home to commercial food production.[361] Paths for growth within an occupation are necessarily limited if a license effectively restricts workers from switching to another license, field, or state.[362]

To begin addressing these issues in the food industry, we propose that home food licenses in California be restricted by square footage, rather than by revenue, with a streamlined enforcement and permitting process available to home food businesses that wish to transition to a commercial space. Along with more widespread adoption of MEHKO permits, these changes will make food licensing more inclusive, rather than further entrenching existing inequality.

Moreover, this regime can act as an example for other industries across the United States. Especially if there is a lack of service in specific areas, such as shortages of highly educated professionals in rural areas,[363] expansions in licensing can benefit workers and consumers with minimal anti-competitive effect.

Conclusion

Labor markets suffer from a variety of inefficiencies that result in fewer opportunities for disadvantaged workers and “deserts” where services are not available to consumers. Occupational licensing has been criticized for exacerbating these problems by erecting barriers to entry into an industry, excluding unlicensed workers, and consolidating the political and cultural power of license holders to the detriment of other workers and consumers. Though there is truth to these claims, licensing offers many potential benefits, particularly to minority and low-income workers. Working in a licensed occupation can increase wages, decrease discrimination in hiring, and create identities that allow disadvantaged communities to organize and make political change.

We propose that expansions in licensing that introduce new, entry level licenses in occupations where licensing is already the norm can improve career prospects for needy workers and benefit consumers. To demonstrate this approach, we introduce the example of home food business licenses, which were first issued in California in 2012 and have continued to grow since then. We collect novel data on food business licenses from county public health departments and estimate the race, gender, and ethnicity of license holders. We show that underrepresented groups in the food industry hold these new licenses and that these businesses are often located in designated food deserts.

Extrapolating from this example, we propose that expansions of licensing in a variety of occupations can solve common problems in labor markets and fill gaps in service availability to consumers. An inclusive occupational licensing regime should have multiple licenses within the same occupation to create competition, have low costs associated with the entry level license, restrict powerful factions from capturing the benefits of entry level licenses, and provide pathways for growth that empower workers to be upwardly mobile. In a time where anti-competitive labor practices are common and high inequality exists in the availability of services, carefully designed expansions in licensing can benefit workers and consumers alike.

Copyright © 2025 Manisha Padi and Grace Choi

        *     Berkeley Law School. Manisha Padi is a corresponding author: mpadi@berkeley.edu.

        **        The authors are grateful for feedback from participants at the Berkeley Law Center for the Study of Law and Society Workshop and the Berkeley Faculty Workshop. Many thanks to Luis Faundez Chacon and Leila Nasrolahi for excellent research assistance.

          [1].     Manicurists, security guards, and tailors may all be required to get a license in California. See Professional Licensure Guide, Cal. Off. of the Small Bus. Advoc. https://calosba.ca.gov/permits-licenses-regulation/professional-licensure-guide/ [https://perma.cc/6M72-TATG].

          [2].     See John Blevins, License to Uber: Using Administrative Law to Fix Occupational Licensing, 64 UCLA L. Rev. 844, 852–57 (2017) (providing an overview of occupational licensing laws); Nick Robinson, The Multiple Justifications of Occupational Licensing, 93 Wash. L. Rev. 1903, 1904 (2018); Aaron Edlin & Rebecca Haw, Cartels by Another Name: Should Licensed Occupations Face Antitrust Scrutiny?, 162 U. Pa. L. Rev. 1093, 1102–03 (2014).

          [3].     Paul J. Larkin, Jr., Public Choice Theory and Occupational Licensing, 39 Harv. J. L. & Pub. Pol’y 209, 237–238 (2016) (discussing the use of public resources, including criminal courts, to enforce licensing regimes); Walter Gellhorn, The Abuse of Occupational Licensing, 44 U. Chi. L. Rev. 6, 14–15 (1976) (describing the history of licensing as self-imposed for the benefit of a powerful minority of workers and enforced widely until challenged in court).

          [4].     See Chiara Farronato, Andrey Fradkin, Bradley Larsen & Erik Brynjolfsson, Consumer Protection in an Online World: An Analysis of Occupational Licensing 5 (Nat’l Bureau Econ. Rsch., Working Paper No. 26601, 2020), https://www.nber.org/papers/w26601 [https://perma.cc/AU7P-UEY7] (demonstrating that stringent licensing requirements are associated with less competition and higher prices but have no detectable effect on customer satisfaction).

          [5].     Morris M. Kleiner & Alan B. Krueger, Analyzing the Extent and Influence of Occupational Licensing on the Labor Market, 31 J. Lab. Econ. 173, 175–76 (2013).

          [6].     See Chad Stone, Danilo Trisi, Arloc Sherman & Jennifer Beltrán, A Guide to Statistics on Historical Trends in Income Inequality 1, 9–10, Figure 2, (Jan. 13, 2020), https://www.cbpp.org/sites/default/files/atoms/files/11-28-11pov_0.pdf [https://perma.cc/EW5F-J8S4].

          [7].     See Morris M. Kleiner & Evgeny Vorotnikov, Analyzing Occupational Licensing Among the States, 52 J. Regul. Econ. 132, 150 (2017); Tingting Zhang & Morley Gunderson, Impact of Occupational Licensing on Wages and Wage Inequality: Canadian Evidence 1998–2018, 41 J. Lab. Rsch. 338, 341 (2020).

          [8].     See, e.g., Ryan Nunn & Gabriel Scheffler, Occupational Licensing and the Limits of Public Choice Theory, 4 Admin. L. Rev. Accord 25, 40 (2019) (“[T]here is a strong basis for licensure reform in these professions that, while less radical than complete deregulation, would nonetheless enhance labor market access and benefit consumers.”); Blevins, supra note 2, at 900 (advocating for the use of administrative law doctrine to scrutinize licensing regimes); Gerald S. Kerska, Economic Protectionism and Occupational Licensing Reform, 101 Minn. L. Rev. 1703, 1748 (2017) (arguing that Congress should solve the occupational licensing problem because state governments have failed in deregulation efforts); Rebecca Haw Allensworth, Foxes at the Henhouse: Occupational Licensing Boards Up Close, 105 Calif. L. Rev. 1567, 1609 (2017) (noting the harmful effects of powerful private regulatory boards).

          [9].     See, e.g., Morris M. Kleiner, Reforming Occupational Licensing Policies 6 (Brookings Inst., Discussion Paper No. 2015-01, 2015), https://www.brookings.edu/wp-content/uploads/2016/06/thp_kleinerdiscpaper_final.pdf [https://perma.cc/DK7R-HCVY]; Chris Edwards, Occupational Licensing, in Empowering the American Worker 58, 64–65 (Cato Inst., 2020), https://www.cato.org/publications/facilitating-personal-improvement-occupational-licensing [https://perma.cc/AKJ8-QFXC] (arguing for the use of cost-benefit analyses to curtail unchecked growth in licensing, nationwide standardization of licensing regimes, and looser licensing standards for vulnerable populations such as veterans).

        [10].     The White House, Occupational Licensing: A Framework for Policymakers 42 (July 2015), https://obamawhitehouse.archives.gov/sites/default/files/docs/licensing_report_final_nonembargo.pdf [https://perma.cc/G58Z-U4P5].

        [11].     Exec. Order No. 13966, Increasing Economic and Geographic Mobility, 85 Fed. Reg. 81777 (Dec. 14, 2020), https://trumpwhitehouse.archives.gov/presidential-actions/executive-order-increasing-economic-geographic-mobility/ [https://perma.cc/Y6D6-F835].

        [12].     Exec. Order No. 14036, Promoting Competition in the American Economy, §§ 5(a)(i), 5(h)(v), 86 Fed. Reg. 36987 (July 9, 2021), https://www.whitehouse.gov/briefing-room/presidential-actions/2021/07/09/executive-order-on-promoting-competition-in-the-american-economy/ [https://perma.cc/K86A-E434].

        [13].     See, e.g., Sal Rodriguez, Will California Ever Get Around to Meaningful Occupational Licensing Reform?, The Orange Cnty. Reg. (Jan. 4, 2023), https://www.ocregister.com/2023/01/02/will-california-ever-get-around-to-meaningful-occupational-licensing-reform/ [https://perma.cc/6E8Q-FY5W].

        [14].     Indeed, the number of jobs requiring an occupational license has grown from about one-in-twenty to almost one-in-four over the last six decades. The National Occupational Licensing Database, Nat’l Conf. of St. Legislatures (Aug. 12, 2022), https://www.ncsl.org/labor-and-employment/the-national-occupational-licensing-database [https://perma.cc/W5YN-PT8N].

        [15].     See, e.g., U.S. Dep’t of the Treasury, The State of Labor Market Competition (Mar. 7, 2022), https://home.treasury.gov/system/files/136/State-of-Labor-Market-Competition-2022.pdf [https://perma.cc/GT94-EMXW] (discussing practices that firms use to restrain competition for workers and maintain monopsony power, including no-poach agreements, non-competes, lack of pay transparency, and mandatory pre-dispute arbitration).

        [16].     Connor Norris & Edward Timmons, Biden Licensing Report Is a Step Backward, Hill (Apr. 5, 2022), https://thehill.com/opinion/finance/3259255-biden-licensing-report-is-a-step-backward/ [https://perma.cc/7LFE-ANTW]; Kerska, supra note 8, at 1741.

        [17].     See, e.g., Seema Nanda, Mandatory Arbitration Won’t Stop Us from Enforcing the Law (Mar. 20, 2023), https://blog.dol.gov/2023/03/20/mandatory-arbitration-wont-stop-us-from-enforcing-the-law [https://perma.cc/SN4J-5SNQ].

        [18].     See, e.g., NLRB General Counsel Issues Memo on Non-competes Violating the National Labor Relations Act, NLRB (May 30, 2023), nlrb.gov/news-outreach/news-story/nlrb-general-counsel-issues-memo-on-non-competes-violating-the-national [https://perma.cc/VBW9-SF63] (describing the NLRB’s commitment to working with the FTC and DOJ to address anti-competitive effects of non-compete agreements); FTC Proposes Rule to Ban Noncompete Clauses, Which Hurt Workers and Harm Competition, FTC (Jan. 5, 2023), https://www.ftc.gov/news-events/news/press-releases/2023/01/ftc-proposes-rule-ban-noncompete-clauses-which-hurt-workers-harm-competition [https://perma.cc/U5H4-3NA9].

        [19].     See, e.g., Tom Smith & Michael Armstrong, How Licensing Reform Lost Its Way, Hill (Aug. 17, 2021), https://thehill.com/opinion/technology/568187-how-licensing-reform-lost-its-way [https://perma.cc/A4JK-EKGJ] (arguing that reform proposals denigrate the safety and integrity of critical infrastructure, public spaces, and financial systems).

        [20].     See infra Part I.C.

        [21].     We sample from a wide-ranging literature in law, economics, sociology, and other fields. Not every relevant paper is included, though we try to be representative of the field. See, e.g., Morris M. Kleiner, Occupational Licensing, 14 J. Econ. Persps. 189 (2000).

        [22].     Edlin & Haw, supra note 2, at 1110.

        [23].     Id. at 1105.

        [24].     Peter Q. Blair & Bobby W. Chung, How Much of Barrier to Entry Is Occupational Licensing?, 57 Brit. J. Indus. Rel. 919, 920 (2019); Edward J. Timmons & Anna Mills, Bringing the Effects of Occupational Licensing into Focus: Optician Licensing in the United States, 44 E. Econ. J. 69, 72 (2018); Xing Xia, Barrier to Entry or Signal of Quality? The Effects of Occupational Licensing on Minority Dental Assistants, 71 Lab. Econ. 102027, 5 (2021).

        [25].     Edlin & Haw, supra note 2, at 1098.

        [26].     See, e.g., John R. Bowblis & Austin C. Smith, Occupational Licensing of Social Services and Nursing Home Quality: A Regression Discontinuity Approach, 74 ILR Rev. 199 (2021); Mark J. Bradley, The Challenge to Occupational Licensing Laws for Funeral Directors by Direct Cremation Businesses: An Examination and Proposed Solution, 5 Fla. St. U. L. Rev. 381, 386 (1977); Daniel J. Gilman & Julie Fairman, Antitrust and the Future of Nursing: Federal Competition Policy and the Scope of Practice, 24 Health Matrix 143, 163 (2014); Bobby W. Chung, The Costs and Potential Benefits of Occupational Licensing: A Case of Real Estate License Reform, 76 Lab. Econ. 102172, 13 (2022); Farronato et al., supra note 4, at 5.

        [27].     Robinson, supra note 2, at 1935–36.

        [28].     See, e.g., Marc T. Law & Mindy S. Marks, Effects of Occupational Licensing Laws on Minorities: Evidence from the Progressive Era, 52 J. L. & Econ. 351 (2009); Edward J. Timmons & Robert J. Thornton, The Effects of Licensing on the Wages of Radiologic Technologists, 29 J. Lab. Rsch. 333 (2008); Kim A. Weeden, Why Do Some Occupations Pay More than Others? Social Closure and Earnings Inequality in the United States, 108 Am. J. Socio. 55 (2002); Beth Redbird, The New Closed Shop? The Economic and Structural Effects of Occupational Licensure, 82 Am. Socio. Rev. 600 (2017).

        [29].     Nunn & Scheffler, supra note 8, at 30.

        [30].     Gellhorn, supra note 3, at 18; Stuart Dorsey, Occupational Licensing and Minorities, 7 L. & Hum. Behav. 171, 180 (1983).

        [31].     See Farronato et al., supra note 4, at 22–23; Edlin & Haw, supra note 2, at 1113.

        [32].     George A. Akerlof, The Market for “Lemons”: Quality Uncertainty and the Market Mechanism, 84 Q. J. Econ. 488, 500 (1970); Hayne E. Leland, Quacks, Lemons, and Licensing: A Theory of Minimum Quality Standards, 87 J. Pol. Econ. 1328, 1330 (1979); Carl Shapiro, Investment, Moral Hazard, and Occupational Licensing, 53 Rev. Econ. Stud. 843, 844 (1986); Robinson, supra note 2, at 1936.

        [33].     See Leland, supra note 32, at 1330.

        [34].     See Peter Q. Blair & Bobby W. Chung, Job Market Signaling Through Occupational Licensing, Rev. Econ. & Stat. 1, 16 (2022) (demonstrating how licensing results in a wage premium for Black men large enough to overcome the racial wage gap by over 10 percent).

        [35].     See Kevin Dayratna, Paul J. Larkin, Jr. & John O’Shea, Reforming American Medical Licensure, 42 Harv. J. L. & Pub. Pol’y 253, 276 (2019) (proposing to relax current medical training and licensure system to expand the supply of medical professionals to foreign-trained doctors and recent medical school graduates who cannot obtain a residency).

        [36].     See Peter I. Buerhaus, Catherine M. Desroches, Robert Dittus & Karen Donelan, Practice Characteristics of Primary Care Nurse Practitioners and Physicians, 63 Nursing Outlook 144, 147 (2015).

        [37].     See id. (noting that the vast majority of PCNPs have a master’s degree as their highest nursing education); Ramona Benkert, Barbara Hollie, Cheryl K. Nordstrom, Bethany Wickson & Lisa Bins-Emerick, Trust, Mistrust, Racial Identity and Patient Satisfaction in Urban African American Primary Care Patients of Nurse Practitioners, 41 J. Nursing Scholarship 211, 216 (2009) (noting how African American adults’ satisfaction with their nurse practitioners (NP) is positively related to race concordance).

        [38].     Margot J. Pollans, Eaters, Powerless by Design, 120 Mich L. Rev. 643 (2022).

        [39].     Julie Beaulac, Elizabeth Kristjansson & Steven Cummins, A Systematic Review of Food Deserts, 1966–2007, 6 Preventing Chronic Disease 105 (2009); Marianne Bitler & Steven J. Haider, An Economic View of Food Deserts in the United States, 30 J. Pol’y Analysis Mgmt. 153 (2011).

        [40].     See Cottage Foods and Home Kitchens: 2021 State Policy Trends, Harv. L. Sch. Food L. & Pol’y Clinic 1,1 (Jan. 2022), https://chlpi.org/wp-content/uploads/2022/01/Home-kitchen-issue-brief-2021-final-1.pdf [https://perma.cc/DAW4-2FRT] (noting that the FDA, whose Model Food Code is adopted in some form in most states, advises against licensing or even permitting home kitchens).

        [41].     Id. at 2, 5.

        [42].     Id. at 3.

        [43].     Cal. Health & Safety Code §§ 114365–114365.6.

        [44].     Cal. Health & Safety Code § 114365; Cal. Health & Safety Code § 113758 (defining “cottage food operations”).

        [45].     Cal. Health & Safety Code §§ 114367–114367.6.

        [46].     Id.

        [47].     See infra Part III.B.

        [48].     See infra Part III.B.

        [49].     See infra Part III.B.

        [50].     See infra Part III.B.

        [51].     See infra Part III.B.

        [52].     See infra Part III.B.

        [53].     See Beaulac et al., supra note 39, at 4; Bitler & Haider, supra note 39, at 155.

        [54].     See infra Part IV.

        [55].     See infra Part IV.A.

        [56].     See infra Part IV.B.

        [57].     See infra Part IV.C.

        [58].     See infra Part IV.D.

        [59].     The literature finds mixed effects of current licensing regimes on social mobility. Compare Beth Redbird & Angel Alfonso Escamilla-García, Borders Within Borders: The Impact of Occupational Licensing on Immigrant Incorporation, 6 Socio. Race & Ethnicity 22 (2020) (finding that licensing eases access to occupations for immigrants, particularly for vulnerable immigrant labor groups), with Brian Meehan, Edward Timmons, Andrew Meehan & Ilya Kukaev, The Effects of Growth in Occupational Licensing on Intergenerational Mobility, 39 Econ. Bull. 1516 (2019) (finding that licensing is associated with a reduction in absolute mobility and an increase in income inequality).

        [60].     Robinson, supra note 2, at 1935–44 (arguing that benefits include protecting the public from harm, creating communities of knowledge and competence, fostering relationships of trust, and buffering producers from the market).

        [61].     Chung, supra note 26, at 2.

        [62].     Kleiner & Krueger, supra note 5.

        [63].     See Kleiner and Vorotnikov, supra note 7, at 146–50; see generally Zhang & Gunderson, supra note 7.

        [64].     See generally David E. Bernstein, Licensing Laws: A Historical Example of the Use of Government Regulatory Power Against African-Americans, 31 San Diego L. Rev. 89 (1994).

        [65].     See id.

        [66].     The White House, supra note 10.

        [67].     Blair & Chung, supra note 24, at 13.

        [68].     Market shares are computed relative to a base profession that is licensed in all markets. The authors use elementary and middle school teachers as the base profession. Id. at 922.

        [69].     As we will discuss later, Blair and Chung find that this primarily impacts White but not Black entrants. Blair & Chung, supra note 34, at 4.

        [70].     Stuart Dorsey, Occupational Licensing and Minorities, 7 L. & Hum. Behav. 171 (1983).

        [71].     Id. at 174–75.

        [72].     Id. at 179–80 (“Licensing changes the nature of competition, to the disadvantage of those lacking credentials. Restrictions on entry limit price competition from new entrants, but the resultant higher earnings generate a “political” competition to gain the limited slots in the trade. The exact type of competition and who will be favored depend upon how the entry rights are rationed.”).

        [73].     See Chung, supra note 26, at 1.

        [74].     Id. at 2.

        [75].     Id.

        [76].     Id. at 3.

        [77].     Id. at 4.

        [78].     Id. at 6.

        [79].     Id. at 10–11.

        [80].     Farronato et al., supra note 4, at 7–9.

        [81].     Id. at 5–7.

        [82].     Stringent licensing regimes were defined as having higher licensing fees, more rigorous testing, higher levels of required experience, or increased education requirements needed to qualify for the license. Id. at 28.

        [83].     See Denver D’Rozario & Jerome D. Williams, Retail Redlining: Definition, Theory, Typology, and Measurement, 25 J. Macromarketing 175, 175 (2005) (describing the practice of retail redlining as “a spatially discriminatory practice among retailers, of not serving certain areas, based on their ethnic-minority composition, rather than on economic criteria”); Chevon Fuller, Service Redlining: The New Jim Crow?, 3 C.R. J. 33, 33 (1998) (noting that “some retail establishments are creating demographic-based service policies which, like Jim Crow laws, enable them to do business only with white communities”); see also Caitlin Knowles Myers, Grace Close, Laurice Fox, John William Meyer & Madeline Niemi, Retail Redlining: Are Gasoline Prices Higher in Poor and Minority Neighborhoods?, 49 Econ. Inquiry 795 (2011) (finding that gasoline prices are higher in poor neighborhoods).

        [84].     Farronato et al., supra note 4, at 7.

        [85].     Kleiner & Krueger, supra note 5, at 173.

        [86].     Timmons & Thornton, supra note 28, at 333.

        [87].     Weeden, supra note 28, at 55.

        [88].     Id. at 82.

        [89].     See, e.g., Redbird, supra note 28, at 611 (using regression methods that control for job type to find there is no statistically significant difference between licensed and unlicensed workers’ wages).

        [90].     Robinson, supra note 2, at 1903, 1942–43.

        [91].     Id. at 1910, 1942–43.

        [92].     Ida Drange & Håvard Helland, The Sheltering Effect of Occupational Closure? Consequences for Ethnic Minorities’ Earnings, 46 Work & Occupations 45, 79 (2018).

        [93].     See Blair & Chung, supra note 34, at 1.

        [94].     Id. at 16.

        [95].     Id.

        [96].     See Xia, supra note 24, at 1. In Xia’s data, 97.7 percent of dental assistants are female. Id. at 8.

        [97].     Id. at 5.

        [98].     Id. at 11.

        [99].     Peter Ganong, Damon Jones, Pascal J. Noel, Fiona E. Greig, Diana Farrell & Chris Wheat, Wealth, Race, and Consumption Smoothing of Typical Income Shocks 25 (Nat’l Bureau of Econ. Rsch., Working Paper No. 27552, 2023), https://www.nber.org/papers/w27552 [https://perma.cc/CH2M-2XHH].

      [100].     See, e.g., Leland, supra note 32, at 1329; Shapiro, supra note 32, at 843.

      [101].     Leland, supra note 32, at 1329; see also Akerlof, supra note 32, 489–90.

      [102].     See Leland, supra note 32, at 1339–40.

      [103].     Farronato et al., supra note 4, at 1.

      [104].     Id. at 7–8.

      [105].     Id. at 13.

      [106].     Id. at 28.

      [107].     See Janet Currie & V. Joseph Hotz, Accidents Will Happen? Unintentional Childhood Injuries and the Effects of Child Care Regulations, 23 J. Health Econ. 25, 25 (2004).

      [108].     See id. at 30–32.

      [109].     See id. at 27.

      [110].     See id. at 42.

      [111].     Id. at 25, 28–29.

      [112].     Id. at 52–53.

      [113].     See Blair & Chung, supra note 34, at 1 (finding that “occupational licensing reduces asymmetric information and reduces the racial wage gap” when a worker’s criminal history is difficult to infer); see also Shelly J. Lundberg & Richard Startz, Private Discrimination and Social Intervention in Competitive Labor Markets, 73 Am. Econ. Rev. 340, 340 (1983) (showing that there are wage differentials when companies “are able to assess the marginal product of members of one group more reliably than for the second group’s members”). But cf. Stephen Coate & Glenn C. Loury, Will Affirmative-Action Policies Eliminate Negative Stereotypes?, 83 Am. Econ. Rev. 1220, 1220 (1993) (arguing that affirmative action fails to produce permanent labor-market gains for minorities because affirmative action policies can perpetuate negative stereotypes).

      [114].     See Law & Marks, supra note 28, at 351.

      [115].     Id. at 354, 356. But see Daniel B. Klein, Benjamin Powell & Evgeny S. Vorotnikov, Was Occupational Licensing Good for Minorities? A Critique of Marc Law and Mindy Marks, 9 Econ J. Watch 210, 228–29 (2012) (arguing Law and Marks’ study relied on flawed statistics).

      [116].     See Law & Marks, supra note 28, at 359; see, e.g., Bernstein, supra note 64, at 99–103 (tracing the use of the legal system, including licensing laws, to target Black barbers over the course of the twentieth century).

      [117].     Law & Marks, supra note 28, at 359.

      [118].     Id. at 364.

      [119].     See id.

      [120].     Blair & Chung, supra note 34, at 1.

      [121].     Id. at 3, 11.

      [122].     See, e.g., Amanda Agan & Sonja Starr, Ban the Box, Criminal Records, and Racial Discrimination: A Field Experiment, 133 Q. J. Econ. 191, 191 (2018) (arguing that “withholding information about criminal records could risk encouraging racial discrimination”).

      [123].     See Blair & Chung, supra note 34, at 16.

      [124].     See Redbird & Escamilla-García, supra note 59, at 22.

      [125].     See id. at 27–32.

      [126].     Id. at 41.

      [127].     See id. at 32.

      [128].     See id. at 42; Law & Marks, supra note 28, at 351; Blair & Chung, supra note 34, at 31.

      [129].     Bradley Larsen, Ziao Ju, Adam Kapor & Chuan Yu, The Effect of Occupational Licensing Stringency on the Teacher Quality Distribution 34 (Nat’l Bureau of Econ. Rsch., Working Paper No. 28158, 2020), https://www.nber.org/papers/w28158 [https://perma.cc/HKB7-PUEL].

      [130].     Id. at 2, 34.

      [131].     Id. at 34.

      [132].     D. Mark Anderson, Ryan Brown, Kerwin Kofi Charles & Daniel I. Rees, Occupational Licensing and Maternal Health: Evidence from Early Midwifery Laws, 128 J. Pol. Econ. 4337, 4337 (2020).

      [133].     Id. at 4339.

      [134].     Id. at 4339–40.

      [135].     Id. at 4340.

      [136].     Id. at 4359.

      [137].     The State of Labor Market Competition, supra note 15, at 1.

      [138].     Id. at ii.

      [139].     See id. at ii, 30.

      [140].     Exec. Order No. 14036, Promoting Competition in the American Economy, §§ 5(a)(i), 5(h)(v), 86 Fed. Reg. 36987 (July 9, 2021), https://www.whitehouse.gov/briefing-room/presidential-actions/2021/07/09/executive-order-on-promoting-competition-in-the-american-economy/ [https://perma.cc/K86A-E434].

      [141].     FTC Proposes Rule to Ban Noncompete Clauses, Which Hurt Workers and Harm Competition, supra note 18.

      [142].     FTC, Department of Labor Partner to Protect Workers from Anticompetitive, Unfair, and Deceptive Practices, Fed. Trade Comm’n (Sept. 21, 2023), https://www.ftc.gov/news-events/news/press-releases/2023/09/ftc-department-labor-partner-protect-workers-anticompetitive-unfair-deceptive-practices [https://perma.cc/V7PA-2JPF].

      [143].     Nanda, supra note 17.

      [144].     See, e.g., Norris & Timmons, supra note 16 (suggesting that the federal government provide resources and encouragement for states to design licensing reforms).

      [145].     See, e.g., Edlin & Haw, supra note 2, at 1131 (arguing that state action immunity for occupational licensing boards should be lifted); Larkin, supra note 3, at 235 (finding that occupational licensing requirements “limit the number of service providers, thereby allowing the members of a given trade to avoid competition and raise prices”); Lawrence M. Friedman, Freedom of Contract and Occupational Licensing 1890–1910: A Legal and Social Study, 53 Calif. L. Rev. 487, 507 (1965) (finding that occupational licensing was an outgrowth of “unfettered freedom of contract [that] led to the amalgamation of excess power”).

      [146].     See, e.g., Weeden, supra note 28, at 60 (finding that closure devices, like licensing, secure “advantages at the expense of another group, whether employers or consumers, who must pay a higher price for labor, or other workers, who are denied access to the occupation”).

      [147].     See Milton Friedman, Capitalism and Freedom, 148–60 (40th Anniversary eds. 2002) (arguing that licensing is inferior to certification, which allows entry of doctors with a variety of skill levels).

      [148].     See, e.g., Farronato et al., supra note 4, at 5 (finding that “stringent licensing laws are associated with less competition . . . and higher prices, but have no detectable effect on . . . customer satisfaction”); Morris M. Kleiner & Evan J. Soltas, A Welfare Analysis of Occupational Licensing in U.S. States 33 (Nat’l Bureau of Econ. Rsch., Working Paper No. 26383, 2019), https://www.nber.org/papers/w26383 [https://perma.cc/3ZS3-FPYJ] (“The social cost of reduced occupational labor supply appears to exceed the social benefit from higher [willingness to pay] for labor from licensed occupations.”).

      [149].     See, e.g., Kleiner, supra note 9, at 20; Edwards, supra note 9, at 58–69.

      [150].     See, e.g., Kleiner, supra note 9, at 21–22; Edwards, supra note 9, at 58–69.

      [151].     See, e.g., Gabriel Scheffler, Unlocking Access to Health Care: A Federalist Approach to Reforming Occupational Licensing, 29 Health Matrix 293, 342 (2019).

      [152].     Edlin & Haw, supra note 2, at 1114–16.

      [153].     Id. at 1127.

      [154].     Id. at 1134–35.

      [155].     Id. at 1148.

      [156].     Allensworth, supra note 8, at 1569–70.

      [157].     Id. at 1570.

      [158].     Id. at 1574, 1576.

      [159].     574 U.S. 494, 515 (2015).

      [160].     Id. at 499.

      [161].     Id. at 500.

      [162].     Id. at 501.

      [163].     Id.

      [164].     Id.

      [165].     Id. at 499.

      [166].     Id. at 510.

      [167].     Allensworth, supra note 8, at 1580.

      [168].     Id. at 1572, 1592.

      [169].     Id. at 1602.

      [170].     Id.

      [171].     Scheffler, supra note 151, at 329–31.

      [172].     Edwards, supra note 9, at 65–66.

      [173].     Id. at 64.

      [174].     Id.

      [175].     Id.

      [176].     Kleiner, supra note 9, at 18–19.

      [177].     Id.

      [178].     Id. at 21.

      [179].     Id. at 20.

      [180].     Adam Michael & Christina King, Occupational Licensing Stands in the Way of Recovery (Sept. 28, 2021), https://www.jec.senate.gov/public/index.cfm/republicans/2021/9/occupational-licensing-standing-in-the-way-of-recovery [https://perma.cc/7NS2-XNNN].

      [181].     The White House, supra note 10, at 42.

      [182].     Id. at 42–43.

      [183].     Exec. Order No. 13966, Increasing Economic and Geographic Mobility, 85 Fed. Reg. 81777

(Dec. 14, 2020), https://trumpwhitehouse.archives.gov/presidential-actions/executive-order-increasing-economic-geographic-mobility/ [https://perma.cc/Y6D6-F835].

      [184].     Id.

      [185].     Exec. Order No. 14036, Promoting Competition in the American Economy, 86 Fed. Reg. 36987 (July 9, 2021), https://www.whitehouse.gov/briefing-room/presidential-actions/2021/07/09/executive-order-on-promoting-competition-in-the-american-economy/ [https://perma.cc/K86A-E434].

      [186].     See Leslie Bonilla Muñiz, Universal Occupational Licensing Far Off, Lawmakers Say, Ind. Cap. Chron. (Sept. 14, 2023), https://indianacapitalchronicle.com/2023/09/14/universal-occupational-licensing-far-off-lawmakers-say/ [https://perma.cc/AL3Y-KTPH].

      [187].     Institute for Justice, License to Work: A National Study of Burdens from Occupational Licensing (2d ed. 2024), https://ij.org/wp-content/uploads/2017/11/License_to_Work_2nd_Edition.pdf [https://perma.cc/69WL-ZV79].

      [188].     The State of Labor Market Competition, supra note 15, at 19.

      [189].     Marc Joffe, Two States Embrace Occupational Licensing Reform, Cato Inst.: Cato at Liberty (Jan. 17, 2023, 2:40 PM), https://www.cato.org/blog/two-states-embrace-occupational-licensing-reform [https://perma.cc/K53D-MHLE].

      [190].     Sandeep Vaheesan & Frank Pasquale, The Politics of Professionalism: Reappraising Occupational Licensure and Competition Policy, 14 Ann. Rev. L. & Soc. Sci. 309, 316–19 (2018).

      [191].     See generally Mary Beck, Improving America’s Health Care: Authorizing Independent Prescriptive Privileges for Advanced Practice Nurses, 29 U.S.F. L. Rev. 951 (1994) (describing policies and laws applying to advanced practice nurses and recommending legislation expanding prescription privileges); Kevin Dayratna, Paul J. Jr. Larkin & John O’Shea, Reforming American Medical Licensure, 42 Harv. J. L. & Pub. Pol’y 253 (2019) (describing the shortage of doctors due to licensing regimes and proposing remedies to alleviate that shortage); Daniel J. Gilman & Julie Fairman, Antitrust and the Future of Nursing: Federal Competition Policy and the Scope of Practice, 24 Health Matrix 143 (2014) (describing the FTC’s jurisdiction over healthcare and the scope of antitrust policy in health care competition); Morris M. Kleiner, Battling over Jobs: Occupational Licensing in Health Care, 106 Am. Econ. Rev. 165 (2016) (examining the tension between monopoly in licensing and occupational regulation in the healthcare industry).

      [192].     Dayratna et al., supra note 191, at 272.

      [193].     Id.

      [194].     Advanced Practice Registered Nurse (APRN), Am. Nurses Ass’n, https://www.nursingworld.org/practice-policy/workforce/what-is-nursing/aprn/ [https://perma.cc/72YY-DLQT].

      [195].     Ana Ibarra, New California Rules Will Allow Nurse Practitioners to Practice Without Physician Supervision, Cal. Health Care Found.: The CHCF Blog (Nov. 16, 2022), https://www.chcf.org/blog/new-rules-allow-nurse-practitioners-practice-without-physician-supervision/ [https://perma.cc/PX5U-Q5PR].

      [196].     See Cal. Bus. & Prof. Code § 2837.100.

      [197].     Historical Timeline, Am. Ass’n Nurse Pracs., https://www.aanp.org/about/about-the-american-association-of-nurse-practitioners-aanp/historical-timeline [https://perma.cc/9YSE-WP9X]; History, Nat’l Org. Nurse Prac. Facs., https://www.nonpf.org/page/About_Us [https://perma.cc/2UNG-RAZY].

      [198].     Joyce Pulcini & Mary Wagner, Nurse Practitioner Education in the United States, Clinical Excellence for Nurse Pracs. 6, 13–14 (2002).

      [199].     Am. Ass’n Nurse Pracs., supra note 197.

      [200].     John Michael O’Brien, How Nurse Practitioners Obtained Provider Status: Lessons for Pharmacists, 60 Am. J. Health-Sys. Pharmacy 2301, 2304 (2003).

      [201].     Id.

      [202].     Id. at 2302.

      [203].     Id.; see Am. Ass’n Nurse Pracs., supra note 197.

      [204].     O’Brien, supra note 200, at 2302.

      [205].     Id.

      [206].     Am. Ass’n Nurse Pracs., supra note 197.

      [207].     O’Brien, supra note 200, at 2302.

      [208].     Pulcini & Wagner, supra note 198, at 4.

      [209].     O’Brien, supra note 200, at 2302.

      [210].     Scott Feyereisen & Elizabeth Goodrick, Examining Variable Nurse Practitioner Independence Across Jurisdictions: A Case Study of the United States, 118 Int’l J. Nursing Stud. 1, 3 (2021).

      [211].     Reuben A. Kessel, The A.M.A. and the Supply of Physicians, 35 L. & Contemp. Probs. 267, 282–83 (1970).

      [212].     Benjamin J. McMichael, The Demand for Healthcare Regulation: The Effect of Political Spending on Occupational Licensing Laws, 84 S. Econ. J. 297, 297–99 (2017).

      [213].     Id. at 307.

      [214].     Id. at 308–09.

      [215].     Id.

      [216].     Id. at 309.

      [217].     Id. at 298.

      [218].     See 2024 Nurse Practitioner State Practice Environment, Am. Assoc. of Nurse Pracs., https://storage.aanp.org/www/documents/advocacy/State-Practice-Environment.pdf [https://perma.cc/T8LQ-YV7W].

      [219].     See Kelli DePriest, Rita D’Aoust, Laura Samuel, Yvonne Commodore-Mensah, Ginger Hanson & Eric P. Slade, Nurse Practitioners’ Workforce Outcomes Under Implementation of Full Practice Authority, 68 Nursing Outlook 459, 460 (2020).

      [220].     Tressie McMillan Cottom & William A. Darity Jr, Introduction to For-Profit Universities: The Shifting Landscape of Marketized Higher Education 3 (2017); Creola Johnson, Credentialism and the Proliferation of Fake Degrees: The Employer Pretends to Need a Degree; The Employee Pretends to Have One, 23 Hofstra Lab. & Emp. L.J. 269, 288–311 (2006).

      [221].     See James N. Thompson & Lisa A. Robin, State Medical Boards: Future Challenges for Regulation and Quality Enhancement of Medical Care, 33 J. Legal Med. 93, 104–05 (2012); David A. Johnson & Humayun J. Chaudhry, Medical Licensing and Discipline in America: A History of the Federation of State Medical Boards 1, 152, 190, 293 (2012).

      [222].     See Bradley, supra note 26, at 411–12; J. Michael McGuinness, Equal Protection for Non-Suspect Class Victims of Governmental Misconduct: Theory and Proof of Disparate Treatment and Arbitrariness Claims, 18 Campbell L. Rev. 333, 341–51 (1996); Kimberley S. Johnson, Political Hair: Occupational Licensing and the Regulation of Race and Gender Identity, 8 Du Bois Rev.: Soc. Sci. Rsch. on Race 417, 436–37 (2011).

      [223].     See Norman T. Reynolds, The Role of Regulatory Boards in Combating Racism and Promoting Diversity, 108 J. Med. Regul. 32, 35–37 (2022).

      [224].     Jayne Thompson, Can Nurse Practitioners Become Doctors?, Chron. (June 29, 2018), https://work.chron.com/can-nurse-practitioners-become-doctors-16505.html [https://perma.cc/VBE5-JWJG].

      [225].     See Keren Landman, The Nurse Practitioner Will See You Now, Vox (Jan. 24, 2024), https://www.vox.com/even-better/24050901/nurse-practitioner-physician-assistant-doctor-health-care-quality [https://perma.cc/W92Y-8M58].

      [226].     NP Fact Sheet, Am. Ass’n. of Nurse Pracs. (Feb. 2024), https://www.aanp.org/about/all-about-nps/np-fact-sheet [https://perma.cc/Q4B8-GGMP].

      [227].     Judith Ortiz, Richard Hofler, Angeline Bushy, Yi-ling Lin, Ahmad Khanijahani & Andrea Bitney, Impact of Nurse Practitioner Practice Regulations on Rural Population Health Outcomes, 6 Healthcare 1, 7 (2018).

      [228].     Peter I. Buerhaus, Catherine M. DesRoches, Robert Dittus & Karen Donelan, Practice Characteristics of Primary Care Nurse Practitioners and Physicians, 63 Nursing Outlook 144, 147 (2015).

      [229].     Id.

      [230].     Ramona Benkert, Rosalind Peters, Nutrena Tate & Ellen Dinardo, Trust of Nurse Practitioners and Physicians Among African Americans with Hypertension, 20 J. Am. Acad. Nurse Pracs. 273, 277 (2008).

      [231].     Ramona Benkert, Barbara Hollie, Cheryl K. Nordstrom, Bethany Wickson & Lisa Bins-Emerick, Trust, Mistrust, Racial Identity and Patient Satisfaction in Urban African American Primary Care Patients of Nurse Practitioners, 41 J. Nursing Scholarship 211, 216 (2009).

      [232].     See Caitlin Goodwin, DNP vs. MD — Which Degree is Right for You?, Nursing Process, https://www.nursingprocess.org/dnp-vs-md.html [https://perma.cc/VZJ6-8UGD].

      [233].     Id.

      [234].     Id.

      [235].     See Margaret W. Cahalan, Nicole Brunt, Terry Vaughan III, Erick Montenegro, Stephanie Breen, Esosa Ruffin & Laura W. Perna, Indicators of Higher Education Equity in the United States 2024: 50-Year Historical Trend Report 65 (2024), https://www.pellinstitute.org/wp-content/uploads/2024/05/PELL_2024_Indicators-Report_f.pdf [https://perma.cc/FLC5-VVBA].

      [236].     New AACN Data Points to Enrollment Challenges Facing U.S. Schools of Nursing, Am. Ass’n of Colls. of Nursing (Apr. 15, 2024), https://www.aacnnursing.org/news-data/all-news/new-aacn-data-points-to-enrollment-challenges-facing-us-schools-of-nursing [https://perma.cc/2JSH-SN7B].

      [237].     Melanie Lockert, A Guide to the Average Student Loan Debt for Nurse Practitioners, Student Loan Planner (May 6, 2024), https://www.studentloanplanner.com/student-debt-nurse-practitioners/ [https://perma.cc/VM3W-MMP5].

      [238].     Dennis A. Mitchell & Shana L. Lassiter, Addressing Health Care Disparities and Increasing Workforce Diversity: The Next Step for the Dental, Medical, and Public Health Professions, 96 Am. J. Pub. Health 2093, 2094 (2006).

      [239].     See infra Part III.

      [240].     Andrea Freeman, Unconstitutional Food Inequality, 55 Harv. C.R.-C.L. L. Rev. 840 (2020); Paolo D’Odorico, Joel A. Carr, Kyle F. Davis, Jampel Dell’Angelo & David A. Seekell, Food Inequality, Injustice, and Rights, 69 BioScience 180 (2019).

      [241].     See The Pre-FDA History of Food Laws in the United States, PHS Hygiene, https://phshygiene.com/food-safety/the-pre-fda-history-of-food-laws-in-the-united-states/ [https://perma.cc/WQ3W-PTCV]; see also Suraj Gurung, Jonathan Ritacco, Lijun Angelia Chen & John Lai, A Case Study on the Home Cooking Movement—Legalization, Market, and Competition, 6 Applied Econ. Teaching Res., 1, 2–3 (2024) https://www.aetrjournal.org/UserFiles/file/AETR_2023_009RR%20Final.pdf [https://perma.cc/H7LD-LS4T].

      [242].     Neal D. Fortin, Introduction to Food Regulation in the United States, in Food Regulation: Law, Science, Policy, and Practice 3, 4–5 (2016).

      [243].     Pollans, supra note 38.

      [244].     Gerardo Otero, Gabriela Pechlaner, Giselle Liberman & Efe Gürcan, The Neoliberal Diet and Inequality in the United States, 142 Soc. Sci. & Med. 47 (2015); Sara Shostak, Food and Inequality, 49 Ann. Rev. Socio. 359 (2023); Paolo D’Odorico et al., supra note 240.

      [245].     Beaulac et al., supra note 39, at 5 (2009); Jason P. Block & S. V. Subramanian, Moving Beyond “Food Deserts”: Reorienting United States Policies to Reduce Disparities in Diet Quality, PLOS Med., at 1 (2015); Marianne Bitler & Steven J. Haider, An Economic View of Food Deserts in the United States, 30 J. Pol’y Analysis & Mgmt. 153 (2011); Hunt Allcott, Rebecca Diamond, Jean-Pierre Dubé, Jessie Handbury, Ilya Rahkovsky & Molly Schnell, Food Deserts and the Causes of Nutritional Inequality, 134 Q.J. Econ. 1793 (2019); Robert Emmet Jones, Tobin N. Walton, Sylvia Duluc-Silva & Mark Fly, Household Food Insecurity in an Urban Food Desert: A Descriptive Analysis of an African American Community, 17 J. Hunger & Env’t Nutrition 670 (2022); Michele Ver Ploeg, David Nulph & Ryan Williams, Mapping Food Deserts in the U.S., U.S. Dep’t of Agric. (Dec. 1, 2011), https://www.ers.usda.gov/amber-waves/2011/december/data-feature-mapping-food-deserts-in-the-us [https://perma.cc/3LM8-444R].

      [246].     Carolyn Sachs, Patricia Allen, A. Rachel Terman, Jennifer Hayden & Christina Hatcher, Front and Back of the House: Socio-spatial Inequalities in Food Work, 31 Agric. Hum. Values 3 (2014); Eli Revelle Yano Wilson, Front of the House, Back of the House: Race and Inequality in the Lives of Restaurant Workers (2020).

      [247].     Christina Rice, Emily Broad Leib, Ona Balkus, Candace Hensley, Amy Hoover, Meaghan Jerrett, Nathan Leamy, Molly Malavey, Lexi Smith & Patrick Taylor, Cottage Food Laws in the United States 3 (2018), https://chlpi.org/wp-content/uploads/2013/12/FLPC_Cottage-Foods-Report_August-2018.pdf [https://perma.cc/S89Q-2H5B].

      [248].     See FDA Food Code, U.S. Food & Drug Admin., https://www.fda.gov/food/retail-food-protection/fda-food-code [https://perma.cc/N7PR-ZFQ5]; see also Adoption of the FDA Food Code by State and Territorial Agencies Responsible for the Oversight of Restaurants and/or Retail Food Stores, U.S. Food & Drug Admin. (May 23, 2024), https://www.fda.gov/food/fda-food-code/adoption-fda-food-code-state-and-territorial-agencies-responsible-oversight-restaurants-and-retail [https://perma.cc/27Y9-MWYB].

      [249].     Adoption of the FDA Food Code, supra note 248.

      [250].     See 2022 Food Code, U.S. Food & Drug Admin. 1-7–1-9 (2023), https://www.fda.gov/media/164194/download?attachment [https://perma.cc/5K5N-AXYC].

      [251].     Id. at 1–8.

      [252].     Helena Bottemiller Evich & Tarini Parti, Food Freedom Cause Grows with Help, Politico (Apr. 22, 2014), https://www.politico.com/story/2014/04/food-freedom-movement-grows-with-help-from-left-105892 [https://perma.cc/A744-SGEP].

      [253].     Patrick Montgomery, Regina Paparo & Emily M. Broad Leib, Harvard Food Law & Policy Clinic, Cottage Foods and Home Kitchens: 2021 State Policy Trends 2 (2022), https://chlpi.org/wp-content/uploads/2022/01/Home-kitchen-issue-brief-2021-final-1.pdf [https://perma.cc/DAW4-2FRT].

      [254].     See Approved Cottage Foods, Cal. Dep’t of Pub. Health (Feb. 2025) https://www.cdph.ca.gov/Programs/CEH/DFDCS/CDPH%20Document%20Library/FDB/FoodSafetyProgram/CottageFood/ApprovedCottageFoodsList.pdf [https://perma.cc/PQZ8-KJUV].

      [255].     Montgomery, Paparo & Lieb, supra note 253, at 3.

      [256].     Id. at 4.

      [257].     Id.

      [258].     Wyo. Stat. Ann. § 11-49-103 (2023); see Doug Farquhar, The Food Freedom Movement: Laws in Maine, North Dakota, Utah, and Wyoming, Nat’l Env’t Health Ass’n (Aug. 17, 2020), https://www.neha.org/food-freedom-state [https://perma.cc/JX8Z-QY4E].

      [259].     Farquhar, supra note 258.

      [260].     See Rice et al., supra note 247, at 9–12.

      [261].     See H.B. 1616, 2011–2012 Gen. Assemb., Reg. Sess. (Cal. 2012) (enacted).

      [262].     Id. § 7.

      [263].     Id. §§ 7, 13.

      [264].     Id. § 1.

      [265].     Id. § 7.

      [266].     Cottage Food Operations, Cal. Dep’t of Pub. Health https://www.cdph.ca.gov/Programs/CEH/DFDCS/CDPH%20Document%20Library/FDB/FoodSafetyProgram/CottageFood/CFORequirements.pdf [https://perma.cc/GU4V-74VC].

      [267].     See Approved Cottage Foods, supra note 254; How to Add a Food to the Approved Cottage Food List, Cal. Dep’t of Pub. Health https://www.cdph.ca.gov/Programs/CEH/DFDCS/CDPH%20Document%20Library/FDB/FoodSafetyProgram/CottageFood/HowToAddFoodCFOList.pdf [https://perma.cc/T532-5J7J].

      [268].     See H.B. 1616, 2011–2012 Gen. Assemb., Reg. Sess. § 13. (Cal. 2012) (enacted).

      [269].     H.B. 626, 2017–2018 Gen Assemb., Reg. Sess. § 6 (Cal. 2018) (enacted).

      [270].     Id.; see also Food Safety Program for Microenterprise Home Kitchen Operations, Cal. Dep’t of Pub. Health (Dec. 3, 2024) https://www.cdph.ca.gov/Programs/CEH/DFDCS/Pages/FDBPrograms/FoodSafetyProgram/GeneralPermitRequirementsMEHKO.aspx [https://perma.cc/TLX6-J8DB].

      [271].     H.B. 626, 2017–2018 Gen Assemb., Reg. Sess. §§ 5–6 (Cal. 2018) (enacted).

      [272].     Microenterprise Home Kitchen Operations, Cal. Dep’t of Pub. Health (Mar. 18, 2025) https://www.cdph.ca.gov/Programs/CEH/DFDCS/Pages/FDBPrograms/FoodSafetyProgram/MicroenterpriseHomeKitchenOperations.aspx [https://perma.cc/9QPN-ZXFJ].

      [273].     See Home Cooked Food MEHKO Map, Cook All. (May 2022), https://www.cookalliance.org/map [https://perma.cc/5JB6-LE7H].

      [274].     Microenterprise Home Kitchen Operation Adjusted Gross Annual Sales Limit, Cal. Dep’t of Pub. Health https://www.cdph.ca.gov/Programs/CEH/DFDCS/CDPH%20Document%20Library/FDB/FoodSafetyProgram/MEHKO/MEHKOAdjustedGrossAnnualSalesLimit2024.pdf [https://perma.cc/T5ZZ-L5VU].

      [275].     H.B. 626, 2017–2018 Gen Assemb., Reg. Sess (Cal. 2018) (enacted).

      [276].     See, e.g., Ernesto Hernández-López, LA’s Taco Truck War: How Law Cooks Food Culture Contests, 43 U. Miami Inter-Am. L. Rev. 233, 235 (2011); Beth Kregor, Food Trucks, Incremental Innovation, and Regulatory Ruts, 82 U. Chi. L. Rev. Dialogue 1, 4 (2015).

      [277].     Hernández-López, supra note 276; Jee Hye Lee, Johye Hwang & Azlin Mustapha, Popular Ethnic Foods in the United States: A Historical and Safety Perspective, 13 Comprehensive Rev. Food Sci. & Food Safety 2 (2014).

      [278].     See, e.g., Pascale Joassart-Marcelli, Jaime S. Rossiter & Fernando J. Bosco, Ethnic Markets and Community Food Security in an Urban “Food Desert”, 49 Env’t. Plan A 1642, 1646 (2017).

      [279].     Rebecca Winters Keegan, The Great Taco Truck War, Time (Apr. 25, 2008), https://content.time.com/time/nation/article/0,8599,1735104,00.html [https://perma.cc/XJ3X-6D74].

      [280].     Ben Bergman, Taco Truck Battle Heats Up in Los Angeles, NPR (May 5, 2008), https://www.npr.org/2008/05/05/90149577/taco-truck-battle-heats-up-in-los-angeles [https://perma.cc/YL5G-ZB4Q].

      [281].     Id.

      [282].     Jennifer Steinhauer, In Taco Truck Battle, Mild Angelenos Turn Hot, N.Y. Times (May 3, 2008), https://www.nytimes.com/2008/05/03/us/03taco.html [https://perma.cc/YYU4-ZS9A].

      [283].     See id.

      [284].     See Hernández-López, supra note 276, at 243.

      [285].     Id.

      [286].     Id.

      [287].     Id. at 251–53.

      [288].     Id. at 266–67.

      [289].     Don Thompson, Senate OKs Keeping Rice Noodles Out of Cold, SFGate (May 25, 2010), https://www.sfgate.com/restaurants/article/Senate-OKs-keeping-rice-noodles-out-of-cold-3263214.php [https://perma.cc/B2FY-JF4D].

      [290].     Id.

      [291].     Id.

      [292].     Id.

      [293].     See Bill Analysis, Senate Bill 888 (June 15, 2010), http://www.leginfo.ca.gov/pub/09-10/bill/sen/sb_0851-0900/sb_888_cfa_20100611_161748_asm_comm.html [https://perma.cc/ME5H-PLEP].

      [294].     Id.

      [295].     Id.

      [296].     Don Thompson, New 2011 Laws Will Allow California to Begin Health Reforms, Press Democrat (Dec. 26, 2010), https://www.pressdemocrat.com/article/news/new-2011-laws-will-allow-california-to-begin-health-reforms/ [https://perma.cc/9THK-JALP].

      [297].     See K. Connie Kang, New Law Is a Nod to Korean Tradition, L.A. Times (Aug. 25, 2001), https://www.latimes.com/archives/la-xpm-2001-aug-25-me-38152-story.html [https://perma.cc/P8F2-J24R].

      [298].     See Daniel Yi, Delicacies of Asian Cuisine Not to Inspectors’ Taste, L.A. Times (Sept. 5, 2000), https://www.latimes.com/archives/la-xpm-2000-sep-05-mn-15732-story.html [https://perma.cc/P6ZS-375K].

      [299].     Id.

      [300].     Id.

      [301].     Daniel Yi, Health Codes Often at Odds with Ethnic Tastes, L.A. Times (Sept. 6, 2000), https://www.latimes.com/archives/la-xpm-2000-sep-06-mn-16263-story.html [https://perma.cc/6DQY-X6C9].

      [302].     Id.

      [303].     Cal. Dep’t of Pub. Health, Study of the Sale and Consumption of Banh Chung, Banh Tet, and Moon Cakes 2 (2006), https://www.cdph.ca.gov/Programs/CEH/DFDCS/CDPH%20Document%20Library/FDB/FoodSafetyProgram/SaleConsumptionOfBanh.pdf?TSPD_101_R0=087ed344cfab2000f9fb9ffccf46a53732b6dccd221c115a7b37c40a95fb995a9dbdbc12eda28bf308c9ab7276143000d0092e1c587bc9129a9dd09791760f2b390111f5fa9831050f1128e65d541668eb594e326ea7236e077c7fea4e8839b6 [https://perma.cc/4KE3-NWB7].

      [304].     The study found that while moon cakes could remain at room temperature for a maximum of forty-eight hours, researchers recommended that banh chung remain in the potentially hazardous food category. Id. at 4–5. They noted uncertainty about whether industry standards subjected banh chung ingredients to the ten hours of boiling required to destroy harmful bacteria. Therefore, unlike moon cakes that posed a low risk of contamination, banh chung required continued refrigeration. Id. at 5–6.

      [305].     Bill Analysis, Senate Bill 969 (Mar. 15, 2016), http://www.leginfo.ca.gov/pub/15-16/bill/sen/sb_0951-1000/sb_969_cfa_20160404_125036_sen_comm.html [https://perma.cc/2VA7-4N9N].

      [306].     Cal. Health & Safety Code §§ 114429.3, 111223.

      [307].     Methods for submitting requests varied depending on the county. For larger counties, we used an online platform called NextRequest, while we submitted paper requests via email for smaller counties. We submitted requests for violations data in the same manner.

      [308].     Some provided additional information, such as data on inspections and violations.

      [309].     Consumer Fin. Prot. Bureau, Semi-Annual Report of the Consumer Financial Protection Bureau 39 (2021), https://files.consumerfinance.gov/f/documents/cfpb_semi-annual-report-to-congress_2022-04.pdf [https://perma.cc/4UDV-DWG6].

      [310].     Consumer Fin. Prot. Bureau, Using Publicly Available Information to Proxy for Unidentified Race and Ethnicity 8–10 (2014), https://files.consumerfinance.gov/f/201409_cfpb_report_proxy-methodology.pdf [https://perma.cc/P5VK-Y825].

      [311].     See Gender by Name, UC Irvine Mac. Learning Repository (2020), https://archive.ics.uci.edu/dataset/591 [https://perma.cc/7AMU-A36X]; Konstantinos Tzioumis, Data Descriptor: Demographic Aspects of First Names 5 (2018).

      [312].     See Data, U.S. Census Bureau: Longitudinal Emp.-Household Dynamics, https://lehd.ces.census.gov/data/ [https://perma.cc/2TVZ-SFFZ].

      [313].     See Baby Names from Social Security Card Applications – National Data, Soc. Sec. Admin. (May 5, 2022), https://catalog.data.gov/dataset/baby-names-from-social-security-card-applications-national-data [https://perma.cc/ZMK5-UTCM]. The Social Security Administration has not yet updated methods to account for gender fluidity.

      [314].     See generally Mergent, https://www.mergentonline.com/basicsearch.php [https://perma.cc/9U59-6X53]. The merge was performed with raw data from Mergent, which is derived from corporate credit data compiled by Dun & Bradstreet, at the individual business level across multiple years. We used business name and address to match county license data to Mergent’s business names and addresses. To do so, we used a fuzzy match algorithm that allows for errors or deviations in how a name or address is written. Any exact matches were retained, with date of incorporation and number of employees being the most well populated; and high-quality imperfect matches were checked individually to make sure business names were largely equivalent. Data and code are available upon request.

      [315].     See Food Access Research Atlas – Documentation, Econ. Rsch. Serv., U.S. Dep’t of Agric., https://www.ers.usda.gov/data-products/food-access-research-atlas/documentation/ [https://perma.cc/VCC5-QGDD].

      [316].     Id.

      [317].     Id.

      [318].     See Anna Mindess, Oakland Soup Company Purpose and Hope Wants to Comfort and Nourish the East Bay, Berkeleyside (Sept. 7, 2021), https://www.berkeleyside.org/2021/09/07/oakland-mehko-soup-nancy-chang-purpose-and-hope [https://perma.cc/D2XL-V59J].

      [319].     Id.

      [320].     Id.

      [321].     Id.

      [322].     See id.

      [323].     See FAQs, Purpose & Hope, https://www.purposeandhope.com/pages/faqs [https://perma.cc/F8QE-AHRJ].

      [324].     Soup Sponsor, Purpose & Hope, https://www.purposeandhope.com/pages/soup-sponsor-1 [https://perma.cc/6YEE-44ZY].

      [325].     See Elgin Nelson, Home Restaurants Are Supposed to Help Entrepreneurs. In One Bay Area County, Half Have Closed, S.F. Chron. (Aug. 15, 2022), https://www.sfchronicle.com/food/article/bay-area-home-restaurants-17359956.php [https://perma.cc/GVP8-XUGA].

      [326].     See Kleiner, supra note 9, at 5.

      [327].     See, e.g., Edward J. Timmons & Catherine Konieczny, Untangling Hair Braider Deregulation in Virginia, 38 Cato J. 679 (2018); Dorsey, supra note 30.

      [328].     See generally, Alan Manning, Monopsony in Motion: Imperfect Competition in Labor Markets (2003), https://www.degruyter.com/document/doi/10.1515/9781400850679/html [https://perma.cc/GYQ3-CED8]; Eric A. Posner, Introduction to the Symposium on Labor Market Power, 90 U. Chi. L. Rev. 261 (2023).

      [329].     Exec. Order No. 14036, Promoting Competition in the American Economy, §§ 5(a)(i), 5(h)(v), 86 Fed. Reg. 36987 (July 9, 2021), https://www.whitehouse.gov/briefing-room/presidential-actions/2021/07/09/executive-order-on-promoting-competition-in-the-american-economy/ [https://perma.cc/K86A-E434].

      [330].     See generally Manning, supra note 328.

      [331].     See generally V. Bhaskar, Alan Manning & Ted To, Oligopsony and Monopsonistic Competition in Labor Markets, 16 J. Econ. Persps. 155 (2002).

      [332].     See Home Kitchen Operations, San Diego Env’t Health and Quality https://www.sandiegocounty.gov/content/sdc/deh/fhd/food/homekitchenoperations.html [https://perma.cc/WF2Z-H28E].

      [333].     See, e.g., Sell Prepared or Packaged Food at a Farmers’ Market in San Francisco, S.F. Dep’t of Pub. Health, https://www.sfdph.org/dph/eh/food/certfarmmkt.asp [https://perma.cc/2TE5-8DU3]; Get a Public Health Permit/License, Cnty. of L.A. Pub. Health, http://publichealth.lacounty.gov/eh/about/permit.htm [https://perma.cc/5DU5-RESS].

      [334].     See Phillip Warsaw, Steven Archambault, Arden He & Stacy Miller, The Economic, Social, and Environmental Impacts of Farmers Markets: Recent Evidence from the U.S., 13 Sustainability 1, 7 (2021).

      [335].     See Alan Cameron, Farmers’ Markets as Small Business Incubators and Safety Nets:
Evidence From New Zealand, 13 Int’l J. Entrepreneurial Behav. & Rsch. 367, 370, 376 (2007).

      [336].     See Edlin & Haw, supra note 2, at 1112–13; Allensworth, supra note 8, at 1579–81.

      [337].     California Food Handler Certificate Program (Accredited), Am. Nat’l Standards Inst. Nat’l Accreditation Bd., https://anabpd.ansi.org/Accreditation/credentialing/certificate-issuers/AllDirectoryListing?prgID=228,238&statusID=4 [https://perma.cc/6JWR-2KKL].

      [338].     See, e.g., California Food Handler, Food Serv. Prep, https://www.foodserviceprep.com/Courses/California [https://perma.cc/8YQY-LWEL]; National Food Handler, Training by MenuTrinfo, LLC https://www.schoox.com/1318986/national-food-handler/about [https://perma.cc/6ES9-MBUX].

      [339].     See, e.g., California Homemade Food Act AB 1616 (Gatto) Registration/Permitting Form, Alameda Cnty. Dep’t of Env’t. Health (Dec. 21, 2012), https://deh.acgov.org/operations-assets/docs/cottagefood/CFO_Model_Registration-Permitting_Form.pdf [https://perma.cc/5C93-UEPM].

      [340].     See Food Permits – Serving Alameda County, Alameda Cnty., https://permit.acgov.org/FoodPermit.aspx [https://perma.cc/9874-VNE6].

      [341].     See Back of House Team, How to Open a Restaurant in California (Successfully), Back of House (Feb. 25, 2023), https://backofhouse.io/stories/how-to-open-a-restaurant-in-california [https://perma.cc/K7ML-MZWE].

      [342].     See Edlin & Haw, supra note 2, at 1095-97; Allensworth, supra note 8, at 1587-88.

      [343].     See Allensworth, supra note 8, at 1584-85 (discussing how governmental supervision and presence on licensing boards can offset anti-competitive effects).

      [344].     Id.

      [345].     See generally Blevins, supra note 2 (discussing how agencies have used broad discretion to expand occupational licensing).

      [346].     George J. Mailath, Incentive Compatibility in Signaling Games with a Continuum of Types, 55 Econometrica 1349 (1987).

      [347].     See Retail Food Program, Cal. Dep’t of Pub. Health https://www.cdph.ca.gov/Programs/CEH/DFDCS/Pages/FDBPrograms/FoodSafetyProgram/RetailFoodProgram.aspx [https://perma.cc/LQ5P-YYG4]; Cal. Health & Safety Code § 113713 (“Primary responsibility for enforcement of this part shall be with the local enforcement agency. Nothing in this part shall prevent the department from taking any necessary program or enforcement actions for the protection of the public health and safety.”).

      [348].     See, e.g., Microenterprise Home Kitchen Operation Adjusted Gross Annual Sales Limit, Cal. Dep’t of Pub. Health https://www.cdph.ca.gov/Programs/CEH/DFDCS/CDPH%20Document%20Library/FDB/FoodSafetyProgram/MEHKO/MEHKOAdjustedGrossAnnualSalesLimit2024.pdf [https://perma.cc/8ZQE-N73V].

      [349].     See Edlin & Haw, supra note 2; see also N.C. State Bd. of Dental Exam’rs v. FTC, 574 U.S. 494, 504 (2015) (holding that licensing boards are not exempt from antitrust scrutiny when not “actively supervised” by government actors); William M. Sage & David A Hyman, Antitrust as Disruptive Innovation in Health Care: Can Limiting State Action Immunity Help Save a Trillion Dollars?, 48 Loy. U. Chi. L.J. 723 (2017) (describing the promise of antitrust law in benefiting workers in light of N.C. State Bd. of Dental Exam’rs v. FTC).

      [350].     See, e.g., Blevins, supra note 2.

      [351].     See, e.g., Gellhorn, supra note 3, at 18–19; Meehan et al., supra note 59.

      [352].     See Vincenzo Quadrini, Entrepreneurship, Saving, and Social Mobility, 3 Rev. Econ. Dynamics 1, 4 (2000).

      [353].     See, e.g., Bernstein, supra note 64, at 93; see also Chung, supra note 26, at 1.

      [354].     E. Kathleen Adams & Sara Markowitz, Improving Efficiency in the Health-Care System: Removing Anticompetitive Barriers for Advanced Practice Registered Nurses and Physician Assistants 6, 8–9, 22 (2018), https://hamiltonproject.org/assets/files/AdamsandMarkowitz_20180611.pdf [https://perma.cc/MAH9-5PNE].

      [355].     See Microenterprise Home Kitchen Operation Adjusted Gross Annual Sales Limit, supra note 348.

      [356].     See, e.g., Kyle Rozema, Does the Bar Exam Protect the Public?, 18 J. Empirical Legal Stud. 801, 803 (2021).

      [357].     See Deborah L. Rhode, Virtue and the Law: The Good Moral Character Requirement in Occupational Licensing, Bar Regulation, and Immigration Proceedings, 43 L. & Soc. Inquiry 1027, 1031–35 (2018).

      [358].     Hua-Yu Sebastian Cherng, Martha Moreno & Jia-Lin Liu, Health Inspector Ratings of Asian Restaurants During the Early COVID-19 Pandemic, 24 Ethnicities 161 (2024).

      [359].     See Retail Food Safety Training, Cal. Dep’t of Pub. Health (2024),

https://www.cdph.ca.gov/Programs/CEH/DFDCS/CDPH%20Document%20Library/FDB/FoodSafetyProgram/RetailFood/RetailFoodSafetyTraining.pdf [https://perma.cc/W76T-FXR8].

      [360].     See, e.g., Our Story, Tatte Bakery & Café, https://tattebakery.com/about/our-story/ [https://perma.cc/BZ94-W5PE].

      [361].     Compare Cal. Office of the Small Bus. Advoc., Business Quick Start Guide for Restaurants, Bakeries, & Bars, https://calosba.ca.gov/wp-content/uploads/BQSG_RESTAURANTS-BAKERIES-BARS.pdf [https://perma.cc/4SBX-N826], with Cottage Food Operations, Cal. Dep’t of Pub. Health https://www.cdph.ca.gov/Programs/CEH/DFDCS/Pages/FDBPrograms/FoodSafetyProgram/CottageFoodOperations.aspx#:~:text=California%20Department%20of%20Public%20Health%20(CDPH)%20does%20not%20permit%20or,in%20a%20private%20home%2Dkitchen [https://perma.cc/923G-KDQU], and General Permit Requirements for Microenterprise Home Kitchen Operations, Cal. Dep’t of Pub. Health, https://www.cdph.ca.gov/Programs/CEH/DFDCS/Pages/FDBPrograms/FoodSafetyProgram/GeneralPermitRequirementsMEHKO.aspx [https://perma.cc/AH5P-TJ66].

      [362].     Morris M. Kleiner, Reforming Occupational Licensing Policies (2015), https://www.brookings.edu/wp-content/uploads/2016/06/thp_kleinerdiscpaper_final.pdf [https://perma.cc/DK7R-HCVY].

      [363].     Brian T. Horowitz, What Are Medical Deserts, and How Can Technology Alleviate Them?, HealthTech (June 2, 2022), https://healthtechmagazine.net/article/2022/06/what-are-medical-deserts-perfcon [https://perma.cc/67VK-HFK4].