Prepared Food and Photography Sessions

Topic: Liability 
Time Investment: 9 Minutes
Suggested Product: Release of Liability Waiver

Prepared Food and Photography Sessions seem to go together like sugar and spice. Whether it is Cake Smash Sessions, a tea party for a birthday girl and her friends, a styled wedding shoot, or a boudoir shoot with chocolate strawberries – many photographers offer shoots which involve food!

Value adding and collaborating with other businesses can be a great way to grow your business. But, what are the risks of providing prepared food at your photography sessions? Is it more trouble than it’s worth?

We won’t be discussing “food photography” in this article, this is strictly about prepared food being consumed during shoots by models (or other shoot attendees) – both prepared food provided by the Photography business (or through a 3rd party with the photography business as the broker) or bought with them to the shoot by the shoot participants or parents/guardians.

Prepared Food and Photography Sessions: Illness and Injury Liability

By far and away the biggest risk of including prepared food in a photography shoot is the risk of Illness or injury. Illness or injury during a photo shoot (or on your studio premises) can give rise to an increased risk of legal liability.

Is this kind of “waiver” on a booking form sufficient to limit the risk of liability:

“It is the responsibility of the client to inform the photographer of any allergies upon booking. The photographer will not be held liable in the event that a child is found to be allergic to any of the ingredients used to make the cake. The photographer has the cakes professionally made by a third-party. Items may contain or have come in contact with nuts.”

Unlikely, the waiver above does not address injury or other kinds of illness other than allergic reactions. It also doesn’t address food brought to the shoot by the participants separate from the prepared food provided as part of the photography shoot.

What about another example?

The cake will be provided by XXXXX.

The client MUST notify XXXXX Photography of any known allergies. XXXXX Photography will not be held responsible for any known or unknown allergies. If the client brings in their own cake, no refund will be issued.

There is no discussion of the risk of injury- what if a model slips on some frosting and breaks a leg, are you sure you are protected from being held liable for that injury?

Not allowing participants to bring their own cake may, counter-intuitively, increase your risk of liability – especially if there are known allergies involved. Indeed, having a client bring their own cake and have them sign an illness and injury waiver or indemnity form may mitigate more risk than the profit margin you might gain from upselling a client on a cake provided by one of your vendors.

It is important to note that not all US state jurisdictions allow for waiver of all negligence. You should have an attorney review your waivers and disclaimers to make sure they are compliant with the law in your jurisdiction.

So what course of action is likely to yield the least risk of legal liability?

You could have clients sign an indemnity waiver and provide them with a short list of a number of possible vendors for cakes which they will then enter into an agreement completely separately from you. This allows for some measure of vetting of food preparers – so that the finished quality is of a particular standard. If you do this, be wary of guaranteeing pricing, or acting as an agent for the baker or food preparer. The more entangled your business relationships become the more likely you will need to vet the business activities of the baker or food preparer.

By not providing any food directly to the client or act as the broker for the bakery or other food preparer you reduce your risk of liability that may arise from the food. Arguably, even providing booking forms for food preparers may mean that you are acting as their agent.

Okay, we get it, we know that one of the reasons why it is so popular among photography businesses to provide the food involved in photoshoots like “cake smashes” is so you will can either markup the cost of the cake, receive a referral fee from the food preparer, or you can reassure yourself that the end product will be of a particular quality. But, is it worth the additional risk of illness or injury liability?

That’s a question only you can answer based on your risk.

What if you decide to provide prepared food as part of a photography session package?

If you do insist on offering the cakes or other foods involved in the photoshoot packages you are offering, then be sure that the bakeries or food vendors you are using have the appropriate food preparation licenses and permits for your jurisdiction.

Are you sure that your business is structured in such a way as to protect your personal assets?

Check out 5 Reasons your photo Biz needs to be an LLC

Are the products prepared in a licensed kitchen facility (while this is usually commercial, some home-based food businesses can prepare food products out of their home kitchens with the appropriate permits)?

Have they passed their recent Health Department inspections?

Do you have a copy of their insurance certificate, are they willing to add you as an insured party? (you may want to discuss how offering prepared food impacts your insurance coverage needs and premiums).

Do you know if you need to charge sales tax on the prepared food and whether this percentage differs to that of your photography services or products?

Have you entered into a contractual agreement with them that clearly limits your liability for illness and injury arising from food they have prepared for you to sell to your photography clients?

Do you have a thorough illness and injury indemnity form for your clients to sign at the time of booking? Has this waiver document been reviewed by an attorney in your jurisdiction? Have your Photography contracts?

Providing prepared food to photography clients as part of your services is not as straightforward as it might first appear – you must consider the level of tolerance you might have for the legal liability risks that may arise as a consequence. What you decide will depend on your business circumstances and whether or not you consider it worth the additional risk mitigation measures required.