Virginia Cottage Foods Advertising Letter

Kelly Phillips launched KP’s Kake Pops & Treats after making cake pops for friends and their children. A decade later, KP’s Kake Pops & Treats has become a “labor of love” for Kelly, who runs the business in her spare time. However, all that hard work came crashing down one Friday afternoon when Kelly received an e-mail from VDACS.

Regulators from VDACS informed Kelly she couldn’t use her website or social media accounts to advertise her business without “being permitted” as a food establishment. VDACS cited a regulation that prohibits exempted cottage foods from being “offered for sale over the Internet or in interstate commerce.” But Kelly doesn’t use social media to sell her products. Like other small business owners, she relies on social media to attract and connect with customers.

Under the First Amendment, Kelly has the constitutional right to engage in commercial speech. Regulators can’t prevent Americans from talking truthfully about their lawful businesses. Telling Kelly to stop advertising her cake pops doesn’t just cripple her business — it violates her constitutional rights.

That’s why the Institute for Justice (IJ) sent a letter to the Virginia Department of Agriculture and Consumer Services (VDACS) calling on regulators to lift their ban on home bakers advertising their products online to the public. The state’s ban is a breathtaking violation of the First Amendment and threatens the ability of small businesses to start and prosper.