Lincoln, Neb.—The city of Lincoln has amended the cottage food ordinance that last year prompted a lawsuit by the Institute for Justice (IJ) and home baker Cindy Harper, in partnership with Husch Blackwell LLP.
In 2019, Cindy helped convince state lawmakers to adopt LB 304, which reformed Nebraska’s regulations for the home-based sale of shelf-stable foods like Cindy’s decorative sugar cookies. Specifically, LB 304 exempted cottage food producers from the burdensome permitting and inspection requirements that apply to commercial restaurants—as long as they register with the state and pass a simple food safety course.
Within months, however, the city of Lincoln went rogue by imposing the same permitting and inspection requirements on cottage food producers operating locally. So last year, Cindy teamed up with IJ to file a constitutional lawsuit to have the city’s ordinance declared preempted by LB 304.
The city initially dug its heels in, filing a motion to dismiss Cindy’s case. But in October, a state trial court denied the motion, noting the clear “tension” between the city’s ordinance and LB 304.
In response to the court’s decision, on Tuesday Lincoln’s City Council voted unanimously to amend its cottage food regulations. Under the new ordinance, cottage food producers registered under LB 304 simply have to file that registration with the city, and inspections are only allowed under narrow circumstances (for example, based on a specific complaint of food-borne illness).
“I’m very pleased with the revision to the ordinance and that cottage food producers in Lincoln can now work with regulations that are more in line with the state law,” said Cindy. “I want to thank the Institute for Justice and my attorneys for all the hard work that went into making this happen for all of us.”
“This new ordinance is a major improvement for cottage food producers in Lincoln,” explained IJ Attorney Joshua Windham, lead counsel on the case. “Shelf-stable foods like Cindy’s sugar cookies are just as safe in Lincoln as they are in the rest of the state, so there was never any reason for Lincoln to set itself apart with additional regulations. This new ordinance better reflects that reality.”
Cindy is currently consulting with her attorneys to decide how this development impacts the legal status of her case.