IJ Serves Wisconsin a Second Helping of Food Freedom

Across America, thousands of people are supporting their families and feeding their communities by selling a large variety of homemade foods safely and legally. But not in Wisconsin, where regulators ban the sale of even shelf-stable foods like candies, granola, and dried pasta. Wisconsinites who sell a piece of chocolate made in a home kitchen could face up to $1,000 in fines or six months in jail.

Instead, anyone wishing to sell most homemade foods—including to friends, neighbors, or even family—must be licensed as a “retail food establishment.” That requires, among other things, using a commercial-grade kitchen that is separate from any personal home kitchen.

Those requirements are nonsensical. They apply to foods that even the state deems “not potentially hazardous”—foods that are shelf stable and do not require refrigeration. They apply even when the food would not be prepared using a commercial kitchen’s features. And when they don’t apply, there’s no apparent reason for the exemption.

Mark Radl and his wife Paula learned that the hard way. Their friend sells homemade honey and maple syrups; the Radls thought that they, too, could help prepare for retirement by selling their homemade, roasted coffee beans to neighbors. Wisconsin’s Department of Agriculture (“DATCP”), however, said that the Radls must acquire a license and commercial-grade kitchen—roasted coffee beans, unlike honey or maple syrup, are not exempted from Wisconsin’s licensing scheme.

Wisconsin isn’t making anyone safer by applying its licensing requirements to people like the Radls. Shelf-stable foods like roasted coffee beans are inherently safe, as safe as or safer than exempted foods like raw apple cider. And nothing about a commercial-grade kitchen’s features—such as special ceiling tiles or extra sinks—renders the roasting of coffee beans (or the drying of herbs, or the preparation of fudge) any more sanitary. Thus, by banning the sale of such homemade foods, Wisconsin is preventing the sale of safe foods that would otherwise be enjoyed across the state without issue.

That, it appears, is precisely the point. Wisconsin’s oppressive food laws are in part the product of special interest lobbying on behalf of large retail chains. By selectively banning sales of homemade foods, the state ensures that entrenched businesses are insulated from local, entrepreneurial competition. That’s unfair—and unconstitutional.

If you’re feeling a sense of déjà vu, don’t be alarmed: In 2017, IJ successfully challenged Wisconsin’s food licensing regime as applied to home bakers. IJ recently learned, however, that DATCP is still banning baked goods in violation of court orders. And in the meantime, DATCP insists on prohibiting sales of safe homemade goods, like the Radls’ coffee beans, that aren’t baked. That’s why, on February 10, 2021, IJ made two filings in Wisconsin state court: (1) a motion to enforce the 2017 injunction for home bakers, and (2) a new case seeking to allow the Radls and other Wisconsinites to sell their safe, shelf-stable homemade foods—baked or otherwise.

Particularly during a pandemic, state regulators should be working with, not against, ordinary folks looking to support themselves from home. With IJ’s representation, ordinary Wisconsinites are sending a message that their right to earn an honest living is not subject to special interests’ approval.

Suranjan Sen is an IJ Liberty & Law Fellow.

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