Selling home-baked goods is now legal for the first time in Wisconsin, thanks to a successful lawsuit filed by the Institute for Justice and their clients, Lisa Kivirist, Kriss Marion, and Dela Ends.
Before the lawsuit, it was illegal to sell even one cookie without first obtaining a license and spending tens of thousands of dollars to rent or build a commercial grade kitchen, which had to be in a separate room or building from one’s home kitchen. Anyone who violated the law and sold baked goods made in their home kitchen risked fines of up to $1,000 or six months in jail. Wisconsin was one of only two states (the other being New Jersey) to ban the sale of home-baked goods.
That all changed after three Wisconsin farmers joined with the Institute for Justice in filing a constitutional lawsuit in state court against Wisconsin’s State Department of Agriculture on January 13, 2016. The lawsuit asked the court to strike down Wisconsin’s arbitrary home-baked-good ban and allow home bakers to sell home-baked goods—like muffins, cookies and breads—directly to their friends, neighbors and other consumers.
On May 31, 2017, a Wisconsin trial court agreed with the Institute for Justice and ruled the ban unconstitutional. As the trial court found, Wisconsin’s home-baked-good ban had nothing to do with safety. The uncontested evidence showed there was no health risk from improperly baked goods. Moreover, the state already allowed the sale of homemade foods such as raw apple cider, maple syrup and popcorn, as well as canned goods such as jams and pickles, even though the evidence showed that baked goods were as safe or safer than these other goods. The state even allowed nonprofit organizations to sell any type of homemade foods at events up to 12 days a year. As the trial court found, it was blatantly irrational to allow these goods to be sold without a license and commercial grade kitchen, but not baked goods.
Instead, the only reason the ban on home-baked goods existed was purely political. For years, commercial food producers such as the Wisconsin Bakers Association and the Wisconsin Grocers Association lobbied against “Cookie Bills”—which would allow the limited sale of home-baked goods. These groups were motivated to protect themselves from competition. In fact, the Wisconsin Bakers Association sells 400,000 creampuffs every year at the state fair under the nonprofit exemption—all without a license.
Assembly Speaker Robin Vos, who owns his own commercial food business, even refused to allow the Assembly to vote on a Cookie Bill, despite bipartisan support in both houses of the legislature. When the CBS Sunday Morning show covered the lawsuit in April 2017, Vos admitted to the reporters he was motivated to protect other businesses from competition:
“While it’s important that Wisconsin attracts new entrepreneurs, it should not be at the expense of our small businesses that are currently meeting the standards and regulations. The legislation that was proposed last session would have created an unequal playing field and undermine small businesses who make up nearly 98 percent of Wisconsin businesses, employing half of the workforce in our state.”
Fortunately, protecting other businesses from competition is a wholly illegitimate government motive. Although the State may pass laws that truly protect the public health and safety, the ban on selling home-baked goods did anything but that.
After the judge’s May 31 ruling, the State Attorney General’s Office tried to keep enforcing the baking ban against all bakers besides the three plaintiffs in the case. However, the Institute for Justice refused to give up and continued to litigate the case. On October 2, 2017, the judge clarified that his ruling protected all home bakers. As a result, home bakers across the Badger State are now free to sell safe, delicious baked goods that do not require refrigeration directly to consumers.
Motion for Summary Judgment
Lafayette Circuit Court Order and Judgment
Lafayette Circuit Court Supplemental Decision
Order Denying Motion for Clarification and Motion for Limited Consideration
Memorandum in Support of Plaintiffs’ Motion to Show Cause
Wisconsin’s Home-Baked-Good Ban
Before a baker can sell even one muffin in Wisconsin, she needs to be licensed as a “food processing plant” or “retail food establishment.” This requires, among other things, using a commercial-grade kitchen that is separate from her personal home kitchen, undergoing governmental inspections and paying annual fees.
The commercial-kitchen requirement is enough to shut the door in the faces of many would-be entrepreneurs. 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.
The commercial license and kitchen requirements apply even when a baker just 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 many cookies, breads and muffins commonly made in home kitchens.
Wisconsin Allows the Sale of Other Homemade Goods
Despite banning the sale of these home-baked goods, Wisconsin allows the sale of several other homemade goods without a license. Yet cookies, muffins and breads are just as safe as—or safer than—these other homemade goods.
The homemade goods that the state allows to be sold without a license include popcorn, both pasteurized and raw apple cider, maple syrup, sorghum syrup and both pasteurized and raw honey. Wisconsin also allows the limited sale of home-canned goods, such as jams, pickles, salsas and sauces, under what is known as the “Pickle Bill.” The Pickle Bill allows home canners to sell up to $5,000 of such goods at farmers’ markets and community events. It does not make sense that these other homemade goods can be sold but not home-baked goods.
Wisconsin also provides an additional license exemption for churches, charities and nonprofits to sell food at events, such as bake sales, up to 12 days per year. And these groups can serve virtually any type of good, including baked goods that require refrigeration like Key lime pie or cupcakes with cream cheese. Yet the law prohibits home bakers who are not associated with a nonprofit organization from selling even one batch of cookies.
Politics as Usual
The home-baked-good ban has nothing to do with safety and everything to do with politics. The ban protects commercially licensed bakers and other commercial-food producers from competition—and that is the way some want it.
In Wisconsin’s 2013–2014 legislative session, for example, a “Cookie Bill” was introduced to allow the unlicensed, face-to-face sale of up to $10,000 of not potentially hazardous home-baked goods annually. Although the Cookie Bill passed the Senate with bipartisan support, Assembly Speaker Robin Vos, who owns his own licensed food business, refused to allow the bill a floor vote in the Assembly.
New Cookie Bills that would allow the unlicensed, face-to-face sale of not potentially hazardous home-baked goods, up to $7,500 annually, were introduced in the Senate and Assembly in October 2015. The Wisconsin Bakers Association immediately began lobbying against the bills, stating “[W]e don’t need more competition; we need cooperation from our government!” It is widely expected that Speaker Vos will again block a vote.
One group that is particularly hurt by the home-baked-good ban is small farmers, who rely on selling homemade goods to make ends meet. That is the case with the three plaintiffs in this lawsuit—Dela Ends, Lisa Kivirist and Kriss Marion. These women simply want to sell their delicious and safe home-baked goods to their neighbors, community members and guests.
Dela Ends owns and runs a small, USDA-certified organic farm, called Scotch Hill Farm, with her husband and children in Green County. Dela and her family are passionate about sustainable agriculture. For instance, Dela and her husband volunteer in Africa teaching sustainable farming practices to women, and their farm offers community-supported-agriculture (“CSA”) subscriptions so that members of the community can receive monthly produce deliveries. Another way that Dela practices sustainable agriculture is by baking breads and other baked goods with grains from her farm.
Selling her home-baked goods would let Dela help support her family, which has become more challenging in recent years. Demand for Scotch Hill’s organic crops has suffered since the recession, and as Dela gets older, it is more difficult for her to work the fields; she recently had a double-knee replacement and wants to contribute to her family’s income in a way that is less physically taxing.
Selling baked goods would be the perfect solution—if only it were legal. Dela used to frequently sell her baked goods at farmers’ markets and would often sell out. But Dela stopped when she learned about the ban. Dela also wishes to include her home-baked goods in the monthly produce boxes for her CSA subscribers. This would be especially helpful in the months in which it is harder to fill boxes, as well as at times when particular crops are not doing well.
Lisa Kivirist is a mother, farmer, business owner and avid baker. Lisa and her husband own and run a small farm, as well as a bed and breakfast in their home called Inn Serendipity. They live in Green County.
The ban has a real effect on Lisa’s pocketbook. Lisa typically serves muffins and other baked goods at her B&B for breakfast, but the baked-good ban prohibits her from selling these same exact goods to guests—despite frequent requests. Lisa often winds up giving the extras away. In addition, Lisa often goes to community events and farmers’ markets to sell her home-canned goods, but the law prohibits her from also selling her home-baked goods at these same events.
Kriss Marion is the founder of her local farmers’ market in Blanchardville, Wisconsin. Like Lisa, Kriss owns a farm and B&B, called Circle M Market Farm in Lafayette County, with her husband.
Every week at farmers’ markets, Kriss legally sells her farm-grown vegetables, but she is prohibited from selling the muffins and other baked goods she makes at home. Kriss also wishes she could sell muffins and bread to her B&B guests, who frequently request them for their hiking trips and car rides home. Kriss must instead give her extra baked goods away or feed them to her pigs and chickens.
The Defendants are the Wisconsin Department of Agriculture, which is in charge of enforcing the ban, and its secretary, Ben Brancel.
Dela, Lisa and Kriss are challenging the constitutionality of the home-baked-good ban in Lafayette Circuit Court. Specifically, they challenge the ban as a violation of their due-process and equal-protection rights under Article I, Section 1 of the Wisconsin Constitution. All that they ask is that people in Wisconsin be able to sell safe home-baked goods, like cookies, muffins and breads, directly to consumers.
Article 1, Section 1 of the Wisconsin State Constitution states that “[a]ll people are born equally free and independent, and have certain inherent rights; among these are life, liberty and the pursuit of happiness.” Article 1, Section 1 protects Wisconsinites’ 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-good 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, Section 1 also protects Wisconsinites’ equal-protection rights, which include the right of similarly situated individuals to be treated similarly. Those who wish to sell safe home-baked goods are similarly situated to those who are already selling homemade popcorn, honey, maple syrup, sorghum syrup, cider and canned goods. In fact, not potentially hazardous baked goods are just as safe, or safer than, these other foods. If a commercial license and commercial-grade kitchen are not required to sell these other goods, then they should not be required to sell safe baked goods either.
The home-baked-good ban does not exist for genuine safety reasons, but instead protects entrenched special-interest groups from competition. Courts have held that economic protectionism is not a legitimate government interest.
The home-baked-ban is thus unconstitutional.
Dela, Lisa and Kriss simply ask the court to declare that the licensing scheme is unconstitutional as applied to home-baked goods that are widely acknowledged as safe, like 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 litigation team consists of Institute for Justice Attorney Erica Smith and Institute for Justice Senior Attorney Michael Bindas.
The Plaintiffs are also represented by Michael D. Dean in Brookfield, Wisconsin, 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 Catholic 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.
National Food Freedom Initiative
The Institute for Justice is a nonprofit law firm that fights against unreasonable government restrictions on individual’s economic liberty. 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. This case is part of IJ’s National Food Freedom Initiative, which IJ launched in November 2013. IJ has won a constitutional challenge to Minnesota’s restrictions on the right to sell home-baked and home-canned goods, and as well as a free-speech challenge to Oregon’s raw milk advertising ban. It is currently litigating cases challenging restrictions on the right to grow front-yard vegetable gardens in Miami Shores, Florida, the right to call skim milk “skim milk” in Florida and the right of craft-beer makers in Texas to sell their distribution rights instead of being required to give them away for free.
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