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IJ Works Wonders: IJ Fights Half-baked Cottage Food Laws

As part of the Institute for Justice’s 30th Anniversary celebration (1991-2021), our “IJ Works Wonders” series looks back on IJ cases that fundamentally transformed the law and the lives of our clients.

For many, homemade baked goods are more than just a tasty treat; they also pay the bills.  Selling homemade baked goods allows single-parents, farmers, immigrants and others to support themselves and their families, without having to pay tens of thousands of dollars to rent a storefront or a commercial kitchen.  Yet until recently, selling homemade baked goods and other homemade foods was still illegal in some states, and severely restricted in others.  That changed with IJ’s landmark 2017 victory in Wisconsin, Kivirist v. Wisconsin Department of Revenue.  Now, selling homemade baked goods and other homemade foods is legal in all 50 states and over a dozen states have reformed their laws.

It all started in Madison, Wisconsin’s state capital.  Home bakers had tried for years to get a law passed allowing them to sell their goods, but the Legislature kept telling them no.  Although the Legislature had passed laws allowing the sale of other homemade foods—like honey, cider and pickles—it refused to legalize the sale of homemade cookies, cakes and breads.  Making matters worse, Wisconsin aggressively enforced its ban on baked goods.  Hannah Shaw, for instance, sold birthday cakes from her mobile home in rural Wisconsin to help support her boy and girl twins, who have learning disabilities.  The government slapped Hannah with a cease-and-desist letter carrying a $10,000 fine if she were to sell even one more cake.  Hannah was not alone; we heard stories like this from across the state.

We sued, arguing the ban irrationally prevented home bakers from earning a living.  Wisconsin, however, vigorously tried to support the ban as necessary to protect customers from foodborne illness.  As the state argued, foods made in home kitchens could not be nearly as safe as those made in licensed and inspected commercial kitchens.  But IJ presented the court with expert testimony showing that homemade baked goods were just as safe—if not safer—than other homemade foods Wisconsin allowed.  IJ also uncovered evidence showing that the only reason the ban existed was because of economic protectionism; the Wisconsin Bakers Association and Wisconsin Grocers Association had pressured legislators to keep the ban in place to protect themselves from competition.  The court looked at the evidence and struck the ban down as unconstitutional.

Almost immediately, hundreds of new home baking businesses opened in Wisconsin.  IJ surveyed the owners of these new businesses, who told us how the Kivirist victory has changed their lives.  One baker said it “means that I can afford to stay in my home, sleep a little better at night, buy food from my fellow farmers, afford [health insurance], car . . . .  It means a lot.”  Another baker said, “Two weeks after the ban was lifted, we were able to enroll our kids in lessons we could not afford before.” And another baker said, “It has led me to finding my passion again. . . .  Baking relaxes me and helps me not hav[e] to medicate for my anxiety and depression.”

We likewise created a strategic research report—a first-of-its-kind study—surveying 775 cottage food producers in 22 states about what their businesses mean to them and how they view their states’ cottage food laws.  This report helped lawmakers nationwide better appreciate the potential of the home-based industry.

But the fight wasn’t over.  Many other states still severely restricted the sale of homemade foods.  New Jersey, for instance, banned the sale of any homemade food, not just baked goods.  And other states placed so many restrictions on sales that it became almost impossible to have a viable business.  Armed with the Kivirist precedent and our new expertise in homemade foods, we got to work.

Just four years later, IJ has changed the legal landscape.  In court, IJ secured victories for homemade food businesses in Nebraska, New Jersey and North Dakota.  And in state legislatures, IJ successfully passed bills in Alabama, Arkansas, California, the District of Columbia, Florida, Illinois, Kentucky, Maryland, Nebraska, Minnesota, New Mexico, Oklahoma, Washington, West Virginia and Wyoming.  Each of these bills allow people to sell more types of food, in more places, and without red tape.  This summer, IJ even won “litigation by letterhead” after it sent a stern letter to Allegheny County (Pittsburgh) when IJ discovered they still banned the sale of homemade food.  Fearing an IJ lawsuit, the county immediately removed its ban and rescinded several cease-and-desist letters it had sent to fledging businesses.

As a result of IJ’s work, tens of thousands of jobs have been created.  And we are only just getting started.

Erica Smith Ewing is an Institute for Justice senior attorney.

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