ARLINGTON, Va.—Today, regulators at the Virginia Department of Agriculture and Consumer Services (VDACS) clarified that home bakers are free to advertise their products online. VDACS’ reversal comes after the Institute for Justice (IJ) sent a letter to the department, on behalf of Virginia home baker Kelly Phillips, calling on them to lift their ban against home bakers advertising their products online.
Last month, IJ confronted VDACS about its ban after regulators told Kelly, the owner of KP’s Kake Pops & Treats, that she couldn’t use her website or social media accounts to advertise her business without being permitted as a food establishment. That decision was based on a statute that simply states home bakers cannot sell their products over the Internet. But Kelly doesn’t use her social media to sell her cake pops. Like other small businesses, Kelly relies on social media to advertise and grow her business.
VDACS senior leadership has since clarified that the statute does not ban Kelly from advertising her cake pops. In partnership with IJ, VDACS introduced clearer language on its website that states home bakers are free to advertise their products online. In an FAQ available on the department’s website, VDACS clarified that cottage food businesses “may advertise on the internet.”
“I am extremely happy about the decision to allow me to continue posting photos of my work on social media and my website,” Kelly said. “I can’t wait to share more pictures and stories about my cake pops with my supporters online and feel grateful for my wonderful followers throughout this entire process. This feels like a great step and I’m glad it has been resolved.”
“Because Kelly’s cake pops are legal to sell, the First Amendment protects her right to advertise them,” added IJ Attorney Caroline Grace Brothers. “We’re pleased that VDACS has not only reversed course by recognizing that right to advertise, but also ensured that this decision is reflected in their official guidance for home bakers. This clarification will benefit all Virginians—entrepreneurs and consumers alike—by allowing cottage food producers to spread the word about their businesses.”
IJ has a long history of defending the free speech rights of entrepreneurs. Under the First Amendment, Kelly and all Americans have a constitutional right to engage in commercial speech. Regulators can’t stop Americans from talking truthfully about their lawful business. Whether that’s Kelly’s cake pop business,
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 defended individuals’ right to talk about their business.