Wisconsin Farmers Challenge Ban on Home-Baked Goods

Arlington, Va.—Anyone with an oven and a recipe should be able to have a baking business—but that is not the case in Wisconsin, where selling baked goods made in your home kitchen is punishable by six months in jail or up to $1,000 in fines. But a new lawsuit filed in state court by three Wisconsin farmers and the Institute for Justice (IJ) seeks to change that.

Wisconsin is one of only two states to ban entrepreneurs like Lisa Kivirist, Kriss Marion and Dela Ends from selling cookies, muffins and breads simply because they are made in a home kitchen. If a Wisconsinite wants to sell even one cookie, she must acquire a burdensome commercial license, which requires renting or building a commercial kitchen, numerous inspections and multiple fees.

“The state’s home-baked-good ban hurts farmers, homemakers and others who just want to help support their family by selling simple goods from their home oven,” said IJ client Lisa Kivirist, a farmer in Green County. “Not to mention that the ban prevents customers from buying the fresh and local foods of their choice.”

The commercial-kitchen requirement is enough to turn off the oven for Lisa and other would-be entrepreneurs. Outfitting a commercial kitchen can cost from $40,000 to $80,000. Renting space in an existing commercial kitchen is expensive as well; monthly rates for a commercial kitchen often exceed $1,000—and many rural Wisconsinites do not even have a commercial kitchen nearby. These costs make it almost impossible to start a small baking business.

While the state bans home bakers from selling items the government deems to be “not potentially hazardous,” such as cookies, muffins and breads, it allows the sale of homemade foods like raw apple cider, maple syrup and popcorn, as well as canned goods such as jams and pickles.

“Wisconsin’s home-baked-good ban has nothing to do with safety and everything to do with politics and protectionism,” said IJ Attorney Erica Smith, who represents Lisa, Kriss and Dela in the lawsuit.

In fact, commercial food producers like the Wisconsin Bakers Association are lobbying against a “Cookie Bill”—which would allow the limited sale of home-baked goods—in order to protect themselves from competition. Their current petition against the bill states, “[W]e don’t need more competition, we need cooperation from our government!”

“Selling homemade cookies should not be a crime,” said IJ Senior Attorney Michael Bindas. “The Wisconsin Constitution protects the right of entrepreneurs, including home bakers, to earn an honest living. When the cookie ban crumbles, they’ll be free to do so.”

The plaintiffs are also represented by Michael D. Dean in Brookfield, Wisconsin, who is serving as local counsel.

The Institute for Justice is a nonprofit law firm that fights against unreasonable government restrictions on individual’s economic liberty. This case is part of IJ’s National Food Freedom Initiative, which IJ launched in November 2013. IJ has won a constitutional challenge to Minnesota’s restrictions on the right to sell home-baked and home-canned goods, and as well as a free-speech challenge to Oregon’s raw milk advertising ban. It is currently litigating cases challenging restrictions on the right to grow front-yard vegetable gardens in Miami Shores, Florida, the right to call skim milk “skim milk” in Florida and the right of craft-beer makers in Texas to sell their distribution rights instead of being required to give them away for free.