Institute for Justice · June 16, 2021

DARLINGTON, Wis.—Today, Judge Rhonda L. Lanford, presiding over Lafayette County Circuit Court, denied a request from the Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) to dismiss a lawsuit brought by seven Wisconsinites and the Wisconsin Cottage Food Association with the Institute for Justice (IJ) challenging the state’s ban on homemade shelf-stable foods. In 2017, a legal challenge from homemade or “cottage” food producers led a Wisconsin court to declare the state’s ban on home-baked good sales unconstitutional. But Wisconsin continues to ban the sale of most homemade foods, like chocolates, candies, granola and roasted coffee beans. The lawsuit aiming to change that, launched in February, will now proceed to be ruled on the merits.

“Today’s ruling is an important win for Wisconsinites who simply want to support their families by selling shelf-stable goods to their friends and neighbors, just as people in nearly every other state can,” said IJ Attorney Suranjan Sen. “Wisconsin’s ban on the sale of homemade foods baselessly prevents people from earning an honest living, and therefore violates the Wisconsin Constitution.”

Dela Ends, a plaintiff in the prior baked-goods lawsuit, has joined the new lawsuit so she can sell shelf-stable dried foods like soup mixes, tea mixes and dehydrated vegetables to supplement her income. The economic devastation of the COVID-19 pandemic has left many farmers reeling, and any additional source of revenue for home-based food producers could be helpful to Wisconsin families. Dela said that a victory in the lawsuit could help her bed-and-breakfast business, and it would allow her to cook more than breakfast.

“I think it’s really exciting that we can proceed with the hope of adding more products for home entrepreneurs,” Dela said. “Since the first lawsuit, I’ve seen how much good it’s done. It’s so exciting to think where winning this lawsuit could take bakers and food entrepreneurs.”

Alongside the lawsuit challenging the ban on shelf-stable cottage foods, Wisconsin home bakers who won the fight to legalize home-baked good sales in the state in 2017 challenged DATCP’s ban of flourless home-baked goods as violating that court order. On May 20, Lafayette County Circuit Court Judge Duane M. Jorgenson ruled that DATCP had not been following that order. Now, Wisconsinites are free to sell any and all shelf-stable, home-baked goods to their neighbors. Should the new lawsuit be successful, they’ll be able to sell all homemade shelf-stable goods, regardless of the preparation method.

Because of today’s ruling, the home-based food producers will be able to proceed with their case through the discovery process. By this time next year, IJ hopes that all Wisconsinites will be allowed to sell their homemade, shelf-stable foods to any willing consumer.




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