Food Freedom

A Fight to Decriminalize Cookies (No, Really) Plays Out in Wisconsin

Home bakers sue for the right to sell their wares.


'Sesame Street'

It is against the law to sell homemade baked goods in Wisconsin. Cookies, brownies, muffins, whatever. Those who violate the law potentially face up to $1,000 in fines and up to six months in jail.

The only other state with a baking ban this extreme is New Jersey. There is a bill, SB 330, nicknamed the "Cookie Bill," intended to ease up on this ban and allow home bakers to sell "non-hazardous baked goods" without requiring a commercial license or kitchen. It passed the state's senate on Tuesday but still has to make it through the Assembly.

Attempting to use the legal system to force the legislature's hands are our libertarian legal buddies at the Institute for Justice (IJ). They've announced this week that they're representing three Wisconsin farmers in a lawsuit to try to get the ban struck down. They explain how the ban has nothing to do with public health and safety:

Wisconsin's home-baked-good ban has nothing to do with safety. The state bans home bakers from selling even food the government deems to be "not potentially hazardous" such as cookies, muffins and breads. The state also allows the sale of homemade foods like raw apple cider, maple syrup and popcorn, as well as canned goods such as jams and pickles. In addition, the state allows nonprofit organizations to sell any type of homemade food goods at events up to 12 days a year.

The ban is purely political. Commercial food producers like the Wisconsin Bakers Association are lobbying against a "Cookie Bill"—which would allow the limited sale of home baked goods—in order to protect themselves from competition. Assembly Speaker Robin Vos, who owns his own commercial food business, even refused to allow the Assembly to vote on a Cookie Bill last session, despite bipartisan support.

Wisconsin's GazetteXtra notes that the Wisconsin Bakery Association also lobbied against the bill, saying that commercial operators "don't need more competition; we need cooperation from our government!" Well, there wasn't even a mask to slip off, was there? They are simply saying that the government should protect them from the marketplace, and it doesn't even occur to them that this is wrong and unconstitutional, or they just don't care.

Recall the Institution for Justice's success in Louisiana fighting against a regulatory scheme that protected mortuaries by requiring anybody who wanted to sell caskets (like a group of Benedictine monks) to have to go through unnecessary, excessive funeral director training and to have embalming equipment.

And it's not the first time the IJ has gotten involved in food freedom cases either. Their lawyers took on similar laws in Minnesota and successfully pushed the state legislature to loosen up restrictions on home bakers last year.

In December, Baylen Linnekin explored the outcome when Wyoming loosed up rules to allow more direct-to-consumer food sales. Read here.

Read more about the case and the IJ's clients here. And watch the IJ's explanatory video below: