CRUMBLING Wisconsin’s Cookie Ban

Wisconsin is now both freer and more delicious, thanks to IJ’s latest victory for economic liberty. On May 31, a Wisconsin trial court struck down the state’s ban on selling home-baked goods. The judge found the ban violated Wisconsinites’ constitutional right to earn an honest living because it did not genuinely protect the public. Instead the ban served only to protect industry insiders from competition.

Before IJ won in court, Wisconsin was one of only two states (the other being New Jersey) that banned the sale of home-baked goods. In Wisconsin, before a person could sell even one cookie, they first had to get a license and rent or build a commercial-grade kitchen that was separate from their own home kitchen. Renting or building a commercial kitchen costs tens of thousands of dollars, and is simply not a viable option for home bakers, farmers or hobbyists who just want to sell some cookies or muffins to help support their families.

As the judge found, these onerous requirements had nothing to do with safety. The undisputed evidence in the case showed there was no example of anyone, anywhere, ever getting sick from an improperly made baked good. In addition, the state allowed the sale of many other homemade foods, including canned goods, apple cider, popcorn, honey and syrups, with little or no regulation, even though these foods actually pose greater risks than any posed by baked goods.

All the evidence showed that the ban on selling home-baked goods served only one purpose, and that was protecting commercial bakers from competition.

All the evidence showed that the ban on selling home-baked goods served only one purpose, and that was protecting commercial bakers from competition. In fact, IJ’s three clients—Lisa Kivirist, Kriss Marion and Dela Ends—had fought for years in the Legislature to get this ridiculous law repealed. But despite bipartisan support in both houses for repealing the ban and bills passing unanimously twice in the Senate, one man stood in the way: Assembly Speaker Robin Vos. Speaker Vos used his position to make sure that the bills never received a vote in the Assembly. The Speaker has stated quite candidly that he was motivated to protect commercial bakers from competition.

Indeed, the only other opponents to repealing the ban were commercial bakers, represented by three powerful lobbying groups: the Wisconsin Bakers Association, Grocers Association and Restaurant Association. In the height of hypocrisy, the Wisconsin Bakers Association had itself been selling 400,000 cream puffs every year at the state fair without a license or commercial kitchen, using an exemption for “nonprofit” groups.

In what has become the government’s pattern in these types of cases, the state argued that the law was justified because it was “conceivable” that a home-baked good might present a health risk. But Judge Duane Jorgenson refused to blindly defer to the government and rubber stamp the law. In an opinion that will surely help protect economic liberty for years to come, the judge said that laws must have more than a “speculative” justification and, instead, must have a “real and substantial connection” to protecting the public welfare. This law, obviously, did not.

The state is currently considering an appeal. If that happens, IJ will be there to keep fighting to protect the right to economic liberty both in Wisconsin and nationwide

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