New Jersey’s Home-Baked Goods Ban
Before bakers can sell even one cookie in New Jersey, they need to be licensed as a “retail food establishment.” This requires, among other things, using a commercial-grade kitchen that is separate from one’s personal home kitchen, paying fees and abiding by hundreds of pages of regulations.
The commercial kitchen requirement is enough to shut the door in the face of many would-be entrepreneurs. Renting space at even a shared community kitchen can cost $25 to $35 an hour, and that does not even include fees for storage and other expenses. These costs are not realistic for those merely seeking to make a little extra money on the side with a small business. And for mothers with small children, they also have to consider childcare costs and time away from their families.
The state cannot justify the license and commercial kitchen requirement with safety concerns. These requirements apply even when a baker only wants to sell goods that the state deems “not potentially hazardous.” Not potentially hazardous baked goods are those that are shelf-stable, do not require refrigeration and are very safe to eat. They include most cookies, breads and muffins commonly made in home kitchens. As a Wisconsin court recently concluded, there is no report of anyone, anywhere, ever getting sick from an improperly baked good. 1
Further demonstrating that the ban has nothing to do with safety, the state has an exemption to the ban for people selling homemade goods for charity. The exemption allows anyone to make goods for sale in their home kitchen without a license if it is “prepared for sale or service at a function such as a religious or charitable organization’s bake sale.” 2
This exemption covers not just the sale of baked goods, but any homemade food that is not potentially hazardous, including chocolates, candies, herbs, spices, canned goods, honeys, syrups, coffees and more. If someone can sell cookies for a charity bake sale, it is arbitrary to prevent them from selling the identical cookies at a farmer’s market or out of their home.
Although home bakers have fought to change the law, those efforts have failed.
The Home Bakers Bills
A coalition of New Jersey home bakers has fought for nine years to pass a “Home Bakers Bill.” The most recent version would allow a limited sale of home-baked goods and other safe homemade foods directly to consumers, with a sales cap of $50,000 for each seller. But every year, these bills hit a brick wall.
The hang-up is one man, State Senator Joseph Vitale. Despite these bills having bipartisan support and passing the Assembly unanimously on three different occasions, Sen. Vitale has simply refused to allow the bills out of his senate committee for a vote on the Senate floor. Although Sen. Vitale has made vague safety claims about homemade goods, he has admitted that he wants to protect commercial bakers from competition. As Vitale has stated, commercial bakers may be “undermined by these home-baked products. . . . [I]f the cap is $50,000, that’s potentially $50,000 or some portion that’s out of the bottom line of a small baker.”
Home bakers across the state have tried to convince Vitale to change his mind, but he has not budged. Those bakers include the Plaintiffs in this case.
The Four Plaintiffs
The first three plaintiffs in this case are all mothers in suburban New Jersey who want to sell their baked goods to their communities: Heather Russinko, Liz Cibotariu and Martha Rabello. Together, these three women formed the New Jersey Home Bakers Association. The Association is the fourth plaintiff in the case.
Heather is a single mother of a 14-year-old son. She left her son’s father after he physically and emotionally abused her, and Heather baked as a way to heal. Baking is now a way for Heather to bond with her son, as well as to participate in her son’s school activities.
After bringing in baked goods to her son’s school for fundraisers and to his football team, Heather started getting many requests to sell them. As Heather does not make a lot of money at her job, she was thrilled to have the extra income. She quickly realized she could even use baking to help pay for her son’s college tuition.
But then Heather learned that selling her goods from home was illegal. As renting a commercial kitchen is not economically feasible for her, Heather just gives her baked goods away now. Now she is missing out on a lot of opportunities. For example, after Heather baked for her cousin’s wedding, the wedding venue asked for Heather to join their vending list. Heather had to refuse. Heather wants very much to be able to resume selling her delicious goods so she can use the money to support her son.
Liz is the mother of two young daughters. She works as an Army helicopter technician in the National Guard and was a radio operator with the 42nd Infantry Division in the Iraq War. Liz also has a lifelong love of baking. She started to love baking as a child in Romania, where Liz was raised by her grandmother who is also an avid baker. Liz views baking as an art form, and it has become an important creative outlet in her life.
Liz would like to sell her baked goods to both cover the cost of ingredients and supplies, as well as to supplement her family’s income. Now, Liz frequently bakes for free for her friends and family. Buying baking ingredients and supplies, however, is a significant financial strain for Liz. Although she is often gifted with pans and other tools to thank her for her treats, Liz cannot bake as much as she wants to because of the expense.
Martha is a stay-at-home mom with two sons, a 5-year old and a 2-year old. She has baked her whole life and is professionally trained. While Martha previously baked out of a commercial kitchen, it was very expensive and driving to a remote kitchen is nearly impossible now that she is the primary caregiver of her sons. Martha is Brazilian and lived in Brazil for 25 years, and she would like to start a home business focusing on Brazilian-inspired cookies.
The New Jersey Home Bakers Association
The Association was started by Heather, Liz, Martha and other home bakers. This coalition of bakers is very passionate and has fought for years for home bakers across the state to finally be free to sell their goods.
The Defendants are the New Jersey Department of Health, which is in charge of enforcing the ban, and its acting commissioner, Christopher Rinn.
Heather, Liz, Martha and the New Jersey Home Bakers Association are challenging the constitutionality of the home-baked goods ban in the Union County courthouse in New Jersey. They challenge the ban as a violation of their due-process and equal-protection rights under article I, section 1 of the New Jersey Constitution. A Wisconsin court recently struck down that state’s identical ban on similar grounds. As in Wisconsin, all the bakers here ask is for the people of New Jersey to be free to sell their home-baked goods directly to consumers.
Article 1, paragraph 1 of the New Jersey Constitution states that “[a]ll persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness.” This provision protects New Jerseyans’ due-process rights. One of these rights is the right to pursue a chosen livelihood without arbitrary, unreasonable or oppressive governmental interference. The home-baked goods ban violates this right because there is no genuine safety reason to impose an onerous licensing scheme and require home bakers to spend tens of thousands of dollars to access a commercial kitchen before selling cookies. Goods like cookies, muffins and breads are perfectly safe when made in a home kitchen.
Article 1, paragraph 1 also protects New Jerseyans’ equal-protection rights, which include the right of similarly situated individuals to be treated similarly. Those who wish to sell safe home-baked goods to support themselves are similarly situated to those who sell the very same goods to support a church or charity. If a commercial license and commercial-grade kitchen are not required to sell these goods for a church or charity, then they should not be required when people sell these goods to support themselves and their families.
As the Wisconsin court found, banning the sale of homemade goods has nothing to do with safety and serves only to protect commercial bakers from competition. 3
As protectionism is not a legitimate government interest, the home-baked goods ban is unconstitutional.
Heather, Liz, Martha and the New Jersey Home Bakers Association simply ask the court to declare that the licensing scheme is unconstitutional as applied to the sale of home-baked goods that are widely acknowledged as safe, such as cookies, muffins and breads. This would allow home bakers to sell their goods directly to consumers—whether out of their homes, at farmers’ markets, at community events or online—without securing either a burdensome commercial license or a commercial kitchen.
The Litigation Team
The Plaintiffs are also represented by Richard Chusid in Union, New Jersey, who is serving as local counsel.
About the Institute for Justice
The Institute for Justice is the national law firm for liberty and has represented African hair braiders, casket-making monks, rideshare drivers, and other entrepreneurs in state and federal lawsuits nationwide. For more on the Institute for Justice and its work, visit www.ij.org.
IJ’s National Food Freedom Initiative
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 the ability of Americans 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 won free speech challenges to Florida’s labeling restrictions on all-natural milk and Oregon’s raw milk advertising ban.
IJ is currently litigating cases challenging restrictions on the right to grow front-yard vegetable gardens in Miami Shores, Fla.; the right of craft brewers in Texas to sell their distribution rights instead of being required to give them away for free, and the rights of Minnesotan farm wineries to make wines with out-of-state grapes.
Learn more at http://ij.org/initiatives/food-freedom/.