Victory: IJ Serves Wisconsin a Second Helping of Cottage Foods

Victory is sweet, perhaps even sweeter than homemade fudge—which, thanks to a recent IJ win, is now lawful to sell in Wisconsin (as are any other shelf-stable foods). And though the government has now sought a second bite at the candied apple with an appeal to Wisconsin’s intermediate appellate court, IJ stands ready to defend our victory there and beyond.  

Wisconsin’s laws governing sales of homemade “cottage food” have been among the most restrictive in the country. Even after IJ secured a court victory in 2017 allowing sales of homemade baked goods, the state continued banning sales of virtually all non-baked homemade foods—including low-risk, shelf-stable ones like fudge, candies, dried goods, or roasted coffee beans. So IJ stepped back into action, representing thousands of Wisconsinites in a lawsuit seeking to have Wisconsin’s ban declared unconstitutional as applied to consumer sales of these foods. And last December, a state trial court declared just that. 

As our readers know, constitutional challenges seeking to vindicate economic liberty are difficult to win. Unlike in cases involving, say, the right to free speech, in which courts require the government to justify its restrictions, there is usually no thumb on the scale for the right to perform an occupation or to use property—even a home—as one likes. To win, IJ had to show that the state’s ban on sales of shelf-stable homemade foods was utterly unrelated to any legitimate public purpose, such as food safety. 

That’s a hard hill to climb, even in a case like this one, where both sides’ scientific experts agreed that shelf-stable foods—homemade or otherwise—are extraordinarily safe. But we climbed it, and a Wisconsin trial court ruled for our clients. As a result, Wisconsinites can now freely support their families using their home kitchens.  

The government, meanwhile, recently announced that it will appeal the trial court’s ruling. And though we are disappointed that Wisconsin continues to defend its irrational regulations, IJ is ready to continue the fight until we have permanently secured the delicious taste of freedom for all Wisconsin cottage food entrepreneurs.

 Suranjan Sen is an IJ attorney.