Victory for Food Freedom in Lincoln, Nebraska

Matt Powers
Matt Powers · March 8, 2021

Lincoln, Neb.—Homemade food producers will soon be free to sell their goods within Lincoln without being forced to follow burdensome regulations by the city. Under an amended ordinance, set to take effect on March 15, cottage food producers registered under LB 304 simply have to register with the city, and inspections are only allowed under narrow circumstances (for example, based on a specific complaint of foodborne illness). The amended ordinance was prompted by a lawsuit filed last year by the Institute for Justice (IJ) and home baker Cindy Harper, in partnership with Husch Blackwell LLP.

“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.”

“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.”

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 2020, 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 regulations:

  1. Cottage food producers registered under LB 304 simply need to file their state registration with the city, pay a fee and have a “consultative visit” with the health director so that the director can provide some food-safety information.
  2. Cottage food producers registered under LB 304 will have to follow labeling requirements similar to those listed in LB 304.
  3. The broad inspection authority under the previous ordinance—which allowed the city to inspect private homes whenever it pleased—has been replaced with a more narrowly tailored system under which (a) inspections can only occur based on a complaint of foodborne illness, improper labeling, or some other specific violation of the Lincoln Code, and (b) must be limited to places where cottage foods are actually handled, stored, or sold.
  4. Finally, the ordinance clarifies that the city’s cottage-food regulations apply only to sales inside the city.

Today, IJ and Cindy Harper voluntarily dismissed their lawsuit challenging Lincoln’s burdensome cottage food regulations.

“The city’s new ordinance finally recognizes that the right to sell home-baked goods in Nebraska shouldn’t depend on what city you happen to live in,” said IJ Attorney Keith Neely. “That’s a principle that applies everywhere, and IJ will continue to be on the lookout for local regulations that flout state protections for food freedom.”