Hit & Run

Wisconsin Court Strikes Down Ban on Homemade Baked-Good Sales

A win for home chefs


Institute for Justice

Wisconsin just "became a little freer, and a lot more delicious," as the law firm the Institute for Justice (IJ) put it. On Wednesday, a state circuit court struck down Wisconsin's ban on selling home-baked items such as bread, cookies, cakes, and muffins. The rule has "no real or substantial connection" to consumer protection, Judge Duane Jorgenson wrote in his decision declaring the law unconstitutional.

Wisconsin is one of only two states with such rules (New Jersey is the other), leaving 48 states where homemade baked goods are peddled willy-nilly. No one in these states has suffered serious injury or illness from an improperly-made baked good, Jorgenson noted. The ban was more a matter of cronyism than public health, he suggested, noting the fervor with which groups such as the Wisconsin Bakers Association have rallied against efforts to repeal the law.

Those attempts have twice failed, but Wisconsin lawmakers are at it once again, with a new measure to legalize "the limited face-to-face sale of certain homemade baked and canned foods without a licensing requirement." The bill would allow people to sell "nonhazardous homemade baked goods" face-to-face as long as they make less than $7,500 from the sale of such items, and as long as they register with the state Department of Agriculture, Trade, and Consumer Protection (DATCP). The bill would also extend these rules to canned items, such as pickles.

Under the old law, an individual selling any baked, canned, frozen, or bottled goods must make them in a licensed food-processing plant or commercial kitchen. (Nonprofits get some leeway, and are allowed up to 12 bake sales per year.) This requirement "is enough to shut the door in the faces of many would-be entrepreneurs," explains IJ:

Outfitting a commercial kitchen can cost from approximately $40,000 to $80,000. Alternatively, if a baker rents existing commercial-kitchen space, she has to pay hefty hourly or monthly rates; monthly rates for a commercial kitchen are often over $1,000. These costs are not realistic for those merely seeking to have a small baking business. Making matters worse, many rural Wisconsinites do not have any rentable commercial kitchens nearby.

Violating these terms is no joke. As IJ attorney Erica Smith noted last year, "if you sell one cookie at a farmers market, to your neighbor, somewhere in your community, you can go to jail for up to six months or even be fined up to $1,000."

In January 2016, IJ helped three female farmers—Dela Ends, Lisa Kivirist, and Kris Marion—file a lawsuit against DATCP in the Lafayette Circuit Court. The suit alleged that Wisconsin's rule violated the women's due-process and equal-protection rights under the Wisconsin Constitution. Now, a Wisconsin court has agreed.

Will the state let this one go? A spokesman for the state Department of Justice told Wisconsin Public Radio that "in the coming days, we will be evaluating the decision, consulting with our clients about the impact of the ruling, and considering an appeal."

For now, though, the women who brought the lawsuit are reveling in their win—and prepping their kitchens. "I'm excited to get in my kitchen and start baking as finally Wisconsin is truly open for business," says Kivirist, who calls the court's ruling "recognition for all small businesses that we have the right to earn an honest living and will not be stymied because of industry influence."

With the court win, the legislature needn't write an explicit permission slip any longer. But it may now be more motivated than ever to weigh in on homemade food sales: With the previous law struck down, that leaves no sales-volume limit and some confusion over other regulatory requirements.

Should it go with the $7,500 cap, that would give Wisconsin the lowest limit on homemade food sales of any state that permits it, Smith tells me. "We think the legislature can do better than that—$7,500 is pretty low, especially because it's gross, not net profits." While some states cap sales as low as $15,000, others go as high as $50,000.

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  1. Slippery slope. Once you allow Wisconsonians the choice what to put into their bodies, the next thing you know every Wisconsonite is an opiate addict.

    1. Only if cheese is an opiate.

  2. How can the food be safe it is prepared without a permission slip from the government, and in a kitchen that has not been inspected by the government?

    Before you know it parents are going to be allowed to cook for their children!

    Everyone is going to die!!!!!

    1. 100% of people who eat unregulated baked goods die. We must take action now for the children.

      1. FOR THE CHILDREN!!!!!!

    2. Before you know it parents are going to be allowed to cook for their children!

      + 1 California cheeseburger

  3. " A spokesman for the state Department of Justice told Wisconsin Public Radio that "in the coming days, we will be evaluating the decision, consulting with our clients about the impact of the ruling, and considering an appeal."

    For the record this is a Republican AG. You know the party of small government that is considering an appeal to restore the right to throw people in prison for baking chocolate chip cookies.

    1. My question, for the freedom information crowd, is this "exactly WHO are your CLIENTS?!" And what the hell kind of 'consultations' are required to read a court order and give up on unconstitutional laws?
      Surely there is no 'campaign' money involved here. No lobbyists to hear from. No union involvement.
      Just regular plain old citizens (you know, your bosses) being freed from tyranny. Just leave it alone.

  4. Nonhazardous Homemade Baked Goods was my nickname in college.

    1. Mine was Big Cannoli.

      1. Aren't ironic nicknames fun? 😀

  5. Its a shame that these laws deemed unconstitutional by the courts are not automatically repealed too. This way the actions previously deemed illegal are clearly legal again.

  6. It always take new legislation to repeal the old legislation. Why can't they simply wipe it from the books. Drop it down the memory hole.

    1. In effect that's often done with a permanent injunction. A lot of states have laws on their books against abortions or birth control (including NY, last I checked) whose enforcement is just enjoined against forever. If the decision that a statute is unconstitutional doesn't come w such injunction, then every violator has to go to court to have hir case thrown out. Meaning they can still ticket, arrest, confiscate, etc., & you have to then do legal proceedings to get out of jail free & get your property back; then theoretically they can immediately arrest & confiscate again, if you never get an injunction out of those proceedings.

  7. Not disagreeing with the article, but the quote about needing $40K minimum to install a commercial kitchen is an extreme exaggeration. If installing a Type I hood vent with Ansul system plus purchasing all equipment for a typical small restaurant kitchen, then yeah thats about right. But one just doing some minor baking wouldn't need all that and could probably install a small commercial baking kitchen for around $5k including all plumbing and wiring.

    1. Thing is, it has to be up to the inspector's standards. And their job is to prevent economic activity. So they set their standards as high as possible, and tend to move the goalposts once someone thinks they have complied, just to make it more expensive.

      1. the standards are pretty well codified and haven't changed much in decades. Most states base their food codes to a substantial degree on the FDAs Model Food Code. Not that an individual inspector can't make life difficult, but they can't demand a type I hood when one isn't required or demand drains or surfaces contrary to whats in the food code. They can interpret something as not being consistent with the food code but that only goes so far, and they can't establish their own rules and procedures. Point being, you could take any 300 sq ft room and convert it into a bare-essential commercial baking kitchen for about $5K.

  8. On behalf of the delicious farmer's market zucchini bread I had with breakfast this morning, I am offended that this level of stupidity even exists.

  9. Bruce Murbaum had a commercial kitchen in New Rochelle to make & sell his macrobiotic tahini crunch cookies, which he did only sporadically. He'd make a batch, sell them in bags to his regular customers (retailers), then lay off for months. Meanwhile he sublet the space for another cooking operation IIRC. (Hmm..."cooking"...wonder if....) Couldn't've been a high-grossing business, so I wonder why he didn't come under one of those limits cited by the above article. Maybe until a decade or so ago, NY was among states still having a 0 ceiling on food sales.

    To me even a $7500 gross takes an activity like this out of the category of "hobby someone's recouping costs plus maybe a little profit" on. I'm glad they're talking about raising it, so some people might actually be able to graduate to making a living at it w/o having to get over a big hump of $ to become legal. Fla.'s gone the opposite way w cosmetics & toiletries, banning home mfg. for 1st-dollar sale, except IIRC for soap.

    1. They were damn good cookies, if a little hard on tooth fillings.

  10. So, if I cater to the billionaire down the street, and I've invented a cookie so good that he is willing to pay me $10,000 for that one cookie, I can't sell him that cookie and then close the shop?

    When did Americans become such sniveling cowards that they allow these petty bureaucrats to put limits on how much they can sell, what they can charge, etc?

    I can sell homemade cookies, as long as I don't make more than $7,500? What they hell is this, the fscking USSR?

    1. They aren't Americans just because they're in our territory and control their local government. America isn't a rock, nor a lump of flesh. America is an idea and only those who love that idea are Americans. No matter where they live or even if they never visited our shore. Statist creeps ARE NOT Americans!

  11. The nanny state crap in overdrive without question! By the way, these libtards act as if we are all going to die if they are not allowed to create a bogus government oversite agencies. Question, "How the hell did George Washington win the war?" He sure as hell did not have wacko libs running around like fairies saying no, yes, no, no, no, yes, maybe, you get the point! Governments kill more people than anything else in this world.

  12. It's hard to swallow. This wild liberty thing, running out of control in the land of the authoritarian dweebs? Run for your lives!

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