Institute for Justice · February 11, 2021

Thinking of buying your sweetheart chocolates this Valentine’s Day? They better not be homemade, or you will be breaking the law. Although Wisconsin prides itself on fostering fresh and locally made food, it has one of the most restrictive laws on selling homemade food in the country. That’s why yesterday afternoon, seven Wisconsinites and the Wisconsin Cottage Foods Association teamed with the Institute for Justice (IJ) to challenge Wisconsin’s ban on selling their homemade shelf-stable foods.

Wisconsin bans the sale of many homemade foods, including common and shelf-stable foods like chocolates, candies, fudge, Rice Krispies treats, granola and roasted coffee beans. These foods are completely safe and commonly sold in other states. Yet the Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) aggressively enforces this ban, even sending cease and desist letters to those who dare violate the ban.

“Selling homemade foods is an important source of income for farmers, stay-at-home parents, restaurant workers, and so many others across the state,” said IJ Senior Attorney Erica Smith. “Now, during the pandemic, being able to have a home-based business is more important than ever. Yet Wisconsin persists in arbitrarily banning the sale of many safe homemade foods. We hope the courts will protect economic liberty and strike this ban down.”

This is not the first time DATCP has been sued for Wisconsin’s unreasonable restrictions on homemade foods. In 2016, three home bakers joined with the Institute for Justice to bring a lawsuit against DATCP for its ban on the sale of home-baked goods. Judge Duane Jorgenson of the Lafayette County Circuit Court struck down the ban in 2017 as unconstitutional under the Wisconsin Constitution’s protections for economic liberty. As Judge Jorgensen ruled, shelf-stable home-baked goods are completely safe, and just as safe as other homemade foods that Wisconsin allows to be sold—such as cider, popcorn, honey, syrups, jams and jellies. Although Wisconsinites can sell shelf-stable baked goods under the court ruling, the sale of other shelf-stable foods are still banned.

The plaintiffs in the new lawsuit are seven individuals from across the state, as well as the newly formed Wisconsin Cottage Foods Association, a nonprofit association of people who make and support the sale of homemade foods in Wisconsin. The goods they want to sell vary, from home-roasted coffee beans to chocolate cocoa bombs. And the scope of the businesses they plan to create differs, too, from a few extra dollars for their families to a full-time occupation.

Mark and Paula Radl, for example, are longtime residents of Manitowoc County, and they have been looking for ways to supplement their income as they get older. A friend who sells honey and maple syrup suggested they sell roasted coffee beans, and the Radls paid thousands of dollars to create a setup for them to do so. As a precaution, the Radls contacted their local county health department to approve their setup. The health inspector admitted the setup was clean and safe, but told them they could not legally sell their roasted coffee beans without a license and commercial-grade kitchen. That can cost over $40,000.

“My wife and I are very entrepreneurial and like the idea of being self-sufficient, and we both love coffee. We believe in fairness and opportunity for the little guy, and that’s why we’re joining this lawsuit,” said Mark Radl.

Stacy Beduhn of Outagamie County used to run a small day care, but she had to close it because of the pandemic. In the meantime, Stacy has started her own bakery, “Sweet Creations by Stacy.” Although Stacy can sell home-baked goods under the Court’s 2017 ruling, she still must turn away customers who request other homemade foods. “Customers are requesting that I make cocoa bombs and Valentine’s Day chocolates, but I have to turn those orders down,” said Beduhn. “It doesn’t make sense that I can sell a cookie, but not a chocolate.”

Even after the 2017 court ruling allowing the sale of baked goods, DATCP remains stubbornly aggressive. It has interpreted “baked good” to mean foods made with flour, and continues to ban sales of baked goods without flour, like granola. Along with the new lawsuit to allow shelf-stable homemade food sales, the bakers filed a motion yesterday for DATCP to follow the court order and allow the sale of all shelf-stable baked foods, regardless of whether they contain flour.

“Years ago, a Wisconsin court declared the state’s ban on home-baked goods unconstitutional. ‘Baked goods’ means ‘baked goods,’ not just baked goods made with flour,” said IJ Law & Liberty Fellow Suranjan Sen.

Lisa Kivirist, a plaintiff in the original lawsuit against Wisconsin’s baked-good ban, is joining the new fight to expand food freedom in Wisconsin. She sells shelf-stable breads and muffins, but she would like to sell flourless baked goods like granola as well as other shelf-stable treats like chocolates and fried donuts—homemade foods that Wisconsin prohibits from sale.

“As small-scale rural entrepreneurs, we’ve hit many barriers within our state when it comes to earning an honest livelihood. Because of the ruling against Wisconsin’s baked-good ban, we have hundreds of new business upstarts throughout the state. We can expand that so much further by expanding to all shelf-stable goods,” said Kivirist.

The plaintiffs are also represented by Isaiah M. Richie in West Bend, Wisconsin who is serving as local counsel.

The seven cottage food producers are challenging DATCP for violating a court order by continuing to ban the sale of baked goods not made with flour. The new lawsuit challenging DATCP’s ban on the sale of other shelf-stable foods challenges the ban as a violation of their due-process and equal-protection rights under the Wisconsin Constitution. All they ask is that people in Wisconsin be able to sell their safe, shelf-stable foods directly to consumers.

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