Matthew Prensky
Matthew Prensky · January 3, 2024

ARLINGTON, Va.—Today, the Institute for Justice (IJ) sent a letter to the Virginia Department of Agriculture and Consumer Services (VDACS) calling on regulators to lift their ban on home bakers advertising their products online to the public. The state’s ban is a breathtaking violation of the First Amendment and threatens the ability of small businesses to start and prosper. 

Kelly Phillips launched KP’s Kake Pops & Treats after making cake pops for friends and their children. A decade later, she has more than 2,000 flavors. KP’s Kake Pops & Treats is a “labor of love” for Kelly, who runs the business in her spare time. She says the long hours are worth it when she sees the joy on her customers’ faces. However, all that hard work came crashing down one Friday afternoon when Kelly received an e-mail from VDACS. 

“That Friday when I found out around noon, I was just devastated,” Kelly said. “It felt like I was not just losing a job, but that I was losing a career.” 

Regulators from VDACS informed Kelly she couldn’t use her website or social media accounts to advertise her business without “being permitted” as a food establishment. VDACS cited a regulation that prohibits exempted cottage foods from being “offered for sale over the Internet or in interstate commerce.” But Kelly doesn’t use social media to sell her products. Like other small business owners, she relies on social media to attract and connect with customers. 

Under the First Amendment, Kelly has the constitutional right to engage in commercial speech. Regulators can’t prevent Americans from talking truthfully about their lawful businesses. Telling Kelly to stop advertising her cake pops doesn’t just cripple her business — it violates her constitutional rights. 

Moreover, standing in the way of home bakers is bad policy for Virginia. Homemade food businesses produce safe products that allow communities, especially in rural areas, to buy locally made food from small, frequently female-led companies. Supporting these entrepreneurs helps the state thrive. 

While Virginia has allowed cottage food producers to operate for more than a decade, its regulations divide these businesses into two categories: one with little red tape but limited opportunities regarding what can be sold and where, and another with no venue or sales restrictions, but lots of red tape. The combination of these two programs earned Virginia a “C+” on IJ’s national rankings of homemade food laws. 

 “The First Amendment protects the right to exchange truthful information about lawful products. VDACS cannot authorize the sale of cottage foods on the one hand and forbid the truthful advertising of those same foods on the other,” said IJ Attorney Caroline Grace Brothers. “In other words, because Kelly’s cake pops are legal to sell, it should be legal for her to talk about them online.” 

IJ has a long history of defending the free speech rights of entrepreneurs. Small businesses often depend on advertising to drive sales, yet cities and states across the country continue to stand in the way. Whether it’s a medical marijuana dispensary in Mississippi that the state has completely banned from advertising, or two North Dakota bar owners facing thousands of dollars in fines for painting a mural on the side of their building, IJ has represented and won nearly a dozen cases that protect the free-speech rights of small businesses.  

About the Institute for Justice 

Through strategic litigation, training, communication, activism, legislative outreach and research, the Institute for Justice advances a rule of law under which individuals can control their destinies as free and responsible members of society. IJ litigates to secure economic liberty, educational choice, private property rights, freedom of speech and other vital individual liberties, and to restore constitutional limits on the power of government.

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