Cindy Harper Fights for Food Freedom in Nebraska
Cindy Harper is a home baker in Lincoln, Nebraska. She specializes in baking holiday and event-themed sugar cookies and pound cakes—a specialty she started developing while attending culinary school. Since graduating, baking has been a big part of Cindy’s life. She teaches weekend courses to other aspiring bakers at Southeast Community College and constantly bakes treats for friends and coworkers from her home kitchen. When Cindy learned that those same friends and coworkers wanted to purchase her treats year-round, she looked into starting her own cottage food business, tentatively named Creative Confections.
That’s when she encountered a problem. Like most states, Nebraska requires “food establishments” to get a permit and pass inspections before they can sell to the public. Unlike most states, however, these requirements (until recently) also applied to cottage food businesses selling shelf-stable goods like Cindy’s cookies and cakes. As a result, home bakers would have been required to pay tens of thousands of dollars to convert their home kitchens into commercial facilities—an impossible task for most. Moreover, state regulations make clear that cottage food businesses would not be granted permits. In short, beyond limited exceptions for farmers markets and church events, home bakers were effectively prohibited from selling their goods.
These restrictions made Nebraska a national outlier. The vast majority of states allow cottage food businesses to sell shelf-stable goods directly to customers. The reason is simple: These foods are considered “not potentially hazardous,” meaning they do not require refrigeration and are perfectly safe to eat. Indeed, as a Wisconsin court recently concluded, there is no report of anyone, anywhere, ever getting sick from an improperly baked good.[c]See Transcript of Proceedings at 15-19, Kirvirist v. Wis. Dep't of Agric., No. 16-CV-06 (Lafayette Cty. Cir. Ct. May 31, 2017), https://ij.org/case/wisconsin-baked-good-ban/[/c] Furthermore, a recent Institute for Justice study found that cottage food businesses are a valuable source of supplemental income, especially for women and those in rural areas.
Armed with this knowledge, Nebraska State Senator Sue Crawford decided it was time for Nebraska to adopt some common sense reform. In 2019, she sponsored LB 304, a cottage food freedom bill that would dramatically expand home bakers’ (and other food entrepreneurs’) ability to sell directly to consumers. In short, LB 304 exempted people selling “not potentially hazardous” goods from having to obtain a permit or pass inspections so long as they (1) took a short food safety course, (2) properly labeled their goods and (3) registered with the state. Registered businesses were also required to inform customers that their products were “prepared in a kitchen that is not subject to regulation and inspection.” As Senator Crawford designed “to make sure that all citizens can participate in the home cottage food industry without . . . overly burdensome regulations.”[c]Transcript of Proceedings, Agriculture Committee (March 5, 2019), at 32, https://www.nebraskalegislature.gov/FloorDocs/106/PDF/Transcripts/Agriculture/2019-03-05.pdf[/c]
Unsurprisingly, LB 304 received overwhelming support, especially from home bakers like Cindy, who overcame a fear of public speaking to testify in favor of the bill. Indeed, thanks in part to Cindy’s advocacy, LB 304 passed unanimously and went into effect on September 1, 2019. Soon after, food entrepreneurs across the state—including Cindy—registered under the law and began selling their delicious treats to happy customers.
Lincoln Enacts Local Regulations to Undermine LB 304
LB 304 was a major step forward for food freedom in Nebraska. But in December 2019, the City of Lincoln decided to take a step back by announcing plans to adopt more stringent regulations than those provided under LB 304. What’s more, the City announced that until those regulations passed, all cottage food producers—including those, like Cindy, who were already operating with valid registrations under LB 304—were forbidden from selling their goods at home or online.
In January 2020, the City of Lincoln unveiled its new regulations. The City’s cottage food ordinance requires producers to obtain an additional local permit, pass initial and subsequent inspections (conducted “as frequently as necessary”) to determine compliance with the Lincoln Food Code and obtain one of the following: a “food handler permit, food manager permit, or a certificate of attendance at a farmers market vendor training or a cottage food operation training.”
Lincoln’s ordinance is a solution in search of a problem. Home-baked goods are just as safe in Lincoln as they are in the rest of Nebraska and there is no reason to impose additional requirements on aspiring bakers like Cindy just because they happen to live in Lincoln. As Senator Crawford said, LB 304 was meant to reduce regulations for “all citizens” interested in selling cottage foods—regardless of where they happen to live. By ignoring that intent, and subjecting cottage food businesses to the same permitting and inspection requirements for perfectly safe goods that LB 304 was enacted to avoid, Lincoln has gone rogue.
But cities cannot deprive people of freedoms protected by state law. Cindy has a right to sell her home-baked treats under the terms of LB 304 and she would love to start selling her goods online to eager customers. Indeed, before Lincoln enacted its ordinance, Cindy had plans to open an Esty store to make her treats available to people across Nebraska.
Lincoln has no business making it more difficult for people to earn income from home or to purchase foods online. That’s why IJ has teamed up with Cindy Harper—who fought for LB 304 at the legislature and wants to continue selling her treats consistent with state law—to fight back in court.
The Defendants are the City of Lincoln, its mayor Gaylor Baird, the members of the Lincoln City Council, the Lincoln-Lancaster County Health Department (LLCHD) and Justin Daniel, who serves as the Environmental Public Health Supervisor for the LLCHD. These individuals and entities are responsible for drafting, adopting and enforcing Lincoln’s cottage-food ordinance.
Cindy’s suit argues that Lincoln’s cottage food ordinances violate Article XI, Section 2 of the Nebraska Constitution, otherwise known as its “state-local preemption” clause. The provision grants municipalities like Lincoln the power to govern their own affairs but prohibits them from enacting ordinances that conflict with state law. The provision is designed to impose structural limits on municipal powers. Lincoln’s cottage food ordinance violates this provision because the Nebraska legislature, in enacting LB 304, intended to allow cottage food producers to sell their goods free from unnecessary permitting and inspection requirements. Indeed, those operating under LB 304 are specifically required to inform consumers that their foods were made in a kitchen that was not subject to regulation and inspections. Because Lincoln’s ordinance plainly conflicts with state law, it must be struck down.
The Litigation Team
The litigation team consists of Institute for Justice Attorneys Joshua Windham and Keith Neely, with assistance from Dave Lopez of Husch Blackwell.
About the Institute for Justice
The Institute for Justice is the national law firm for liberty.
This case is part of IJ’s National Food Freedom Initiative, which IJ launched in November 2013. This nationwide campaign brings property-rights, economic liberty and free speech challenges to laws that interfere with Americans’ ability to produce, market, procure and consume the foods of their choice. IJ has won constitutional challenges to Wisconsin’s ban on the sale of home-baked goods and to Minnesota’s restrictions on the right to sell home-baked and home-canned goods. IJ has also helped pass laws expanding the sale of homemade foods in several states across the country, including in Wyoming, Kentucky, Maryland and West Virginia.
IJ is currently litigating cases challenging restrictions on the right to sell cottage foods in North Dakota; the right to sell home-baked goods in New Jersey; and the right to provide free food for your neighbors in Washington.