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Judge Blocks Wisconsin’s Arbitrary and Unconstitutional Ban on Home-Baked Goods Made Without Flour

A 2017 order declared Wisconsin’s ban on home-baked goods unconstitutional, yet state regulators still banned sales of baked goods without flour

WI Baked Goods

DARLINGTON, Wisc.—This afternoon, Lafayette County Circuit Court Judge Duane M. Jorgenson ruled that Wisconsin’s Department of Agriculture Trade and Consumer Protection (DATCP) had not been following a 2017 order that declared the state’s ban on the sale of home-baked good sales unconstitutional. Specifically, DATCP had continued to ban home-baked goods made without flour such as gluten free cakes and cookies, several types of French pastries, granola, kale chips, and even brownies–which are often made without flour. This led Wisconsin home bakers, alongside the Institute for Justice (IJ), to demand that DATCP follow the order, which stated that DATCP must allow the sale of all baked goods that are shelf-stable, regardless of their ingredients. As a result, Wisconsinites can start selling flourless baked goods directly to consumers.

“The Department made the flour requirement out of thin air, and the judge saw that for what it was,” said IJ Senior Attorney Erica Smith. “This ruling is a victory for all Wisconsinites. Now, people will have more options to buy fresh and locally made treats.”

Lisa Kivirist, Kriss Marion and Dela Ends were the plaintiffs in the 2016 lawsuit against Wisconsin’s ban on the sale of home-baked goods with IJ. They celebrated the win today with plans to sell new goods. Before today’s ruling, Kivirist could not sell her homemade cereals that, though baked and shelf-stable, are made with whole oats and not flour.

For some Wisconsinites, selling baked goods without flour has personal importance. Take Dela Ends, a plaintiff in the original lawsuit, who wants to sell baked goods to her gluten-free customers. She starting making gluten-free goods because her daughter has celiac disease.

“Homemade gluten-free goods are delicious, but store-bought ones can be dry and tasteless. Being able to sell baked goods without flour is important for people that can’t eat foods with gluten,” Dela said.

Alongside demanding that DATCP follow the 2017 ruling for baked goods, the bakers joined other Wisconsin homemade food producers in February to launch a separate lawsuit challenging the state’s ban on sales of other shelf-stable homemade that are not baked, like chocolates, fudges, and roasted coffee beans. That lawsuit is ongoing.

“Today, the judge reiterated his 2017 opinion that it’s unconstitutional for the government to ban sales of shelf-stable baked goods,” said IJ Law & Liberty Fellow Suranjan Sen. “The same principle should apply to sales of any safe, shelf-stable food. That’s what the new case is about.”

In 2017, IJ authored the nation’s first comprehensive study of cottage food businesses, which showed that cottage food businesses serve as an important path to entrepreneurship for their owners, who are often lower-income women living in rural areas. Even a small amount of extra income from a cottage food business can be helpful to lower-income households struggling during the economic recovery from the COVID-19 pandemic.

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