Let Them Sell Cake: Lincoln Home Baker Files Lawsuit Challenging City’s Unnecessary Regulations

Matt Powers
Matt Powers · May 19, 2020

Arlington, Va.—Today, home baker Cindy Harper joined with the Institute for Justice (IJ) and Husch Blackwell LLP to file a lawsuit challenging the City of Lincoln for bringing back regulations at the local level that were repealed by the state legislature. In 2019, the Nebraska legislature passed LB 304 to exempt home bakers from having to satisfy unnecessary permitting and inspection requirements. But within months, the City of Lincoln went rogue by imposing its own permitting and inspection requirements on home bakers. The lawsuit has taken on increased importance during the COVID-19 pandemic as consumers seek access to safe, fresh and convenient food sources more than ever. Cindy is ready to fight back in court and has partnered with the Institute for Justice to defend her right to sell safe and delicious foods from the comfort of her home.

“The right to sell home-baked goods in Nebraska shouldn’t depend on what city you happen to live in,” said Cindy Harper. “Lincoln should listen to the Nebraska legislature and leave home bakers alone.”

Last year, thanks in part to testimony from Cindy before the state’s legislature, Nebraska unanimously passed LB 304 and joined the vast majority of states allowing individuals to sell shelf-stable foods (such as cookies, breads, and jams) directly from home after they register with the state. Cindy promptly registered as a home baker under LB 304, planning to launch her own home-baking business.

“Cindy followed Nebraska law by registering with the state as a cottage food producer,” said IJ Attorney Joshua Windham. “Lincoln should do the same.”

In January 2020, the City of Lincoln unveiled its new regulations. The City’s cottage food ordinance requires producers to obtain an additional local permit and pass home inspections (conducted “as frequently as necessary”) to determine compliance with the Lincoln Food Code.

The new lawsuit argues that the City cannot enact regulations that restrict rights protected by state laws. When state Senator Sue Crawford introduced LB 304, she emphasized that the shelf-stable goods covered by the law “are simply not risky foods,” and that the law was designed to “make sure that all citizens can participate in the home cottage food industry without imposing . . . overly burdensome regulations,” like permitting and inspections. The City’s ordinance defeats the point of Nebraska’s law.

“Lincoln’s ordinance is a solution in search of a problem,” said IJ attorney Keith Neely. “Home-baked goods are just as safe in Lincoln as they are in the rest of Nebraska.”

This case is part of IJ’s National Food Freedom Initiative. IJ is currently challenging similar regulations in North Dakota. IJ has won constitutional challenges to Wisconsin’s ban on the sale of home-baked goods and to Minnesota’s restrictions on the right to sell home-baked and home‑canned goods. IJ has also helped pass laws expanding the sale of homemade foods in several states across the country, including in Kentucky, Maryland, West Virginia and Wyoming.

In addition to IJ, Cindy is represented by Omaha attorney Dave Lopez of Husch Blackwell LLP.