A handful of Wisconsin residents have taken the state agriculture department to court with hopes of expanding the list of homemade goods that private individuals can sell to include products ranging from candies and fudge to granola and roasted coffee beans.
In a similar measure, residents also filed a motion to a nearly four-year-old court ruling that alleges the Wisconsin Department of Agriculture, Trade and Consumer Protection is improperly interpreting a judge’s 2017 decision to allow private residents the ability to sell home-baked goods directly to consumers.
In short, DATCP allows residents to sell goods baked in a private kitchen as long as the primary ingredient is flour, such as cookies or bread, but prohibits the sale of non-flour-based goods like macarons and flour-less or gluten-free items — as well as many non-baked items. In order to sell such goods, individuals need to first obtain a commercial food license, which requires the installation of a business-grade kitchen — something that could cost between $40,000 and $80,000, according to the lawsuit.
Renting a commercial kitchen can cost more than $1,000 a month and requires travel, which creates other logistical challenges for home-based producers, who oftentimes are mothers with young children, the lawsuit states.
“There are reasons to have a commercial kitchen, there are food products that need to be made in settings that require more regulations, but In the meantime we’re really operating in this one-size-fits-all world and our world, particularly our business world, isn’t like that, we come in all sizes,” said Lisa Kivirist, a Green County farmer and plaintiff in the lawsuit to allow private residents the ability to sell home-baked goods and the new lawsuit filed this week seeking exemptions for other goods.
The measures were both filed Wednesday, Feb. 10, in Lafayette County Circuit Court against DATCP and department Secretary Randy Romanski and focus on DATCP’s enforcement of laws surrounding the sale of shelf-stable, or non-potentially hazardous foods.
Wisconsin allows private residents to sell items like cider, honey, maple syrup and popcorn, as well as jams, jellies and pickles. The state also allows the sale of all foods and meals by a nonprofit, church or charitable organization.
After a lawsuit was filed by a handful of residents about four years ago to expand that list to include home-baked items, Lafayette Circuit Court Duane Jorgenson ruled in 2017 that banning the sale of homemade cookies, breads and other baked goods was unconstitutional.
DATCP’s website states that the judge’s order “did not address other processing activities, such as the cooking and drying of products like candies and other confectionaries. If you prepare items other than baked goods, then you must obtain a license to operate your business.”
DATCP also says producers can only sell not-potentially hazardous items, which are defined in state statute as any product that “can support rapid and progressive growth of infectious or toxicogenic microorganisms,” or requires refrigerated storage.
However, Erica Smith, senior attorney with the Institute for Justice, a national nonprofit that litigates to limit the size of government power, said DATCP is misinterpreting that 2017 ruling to only apply to flour-based baked goods.
“The judge said baked goods and that’s what the ruling should apply to, people selling baked goods,” Smith said. “It doesn’t matter if they’re made with flour.”
Failing to comply with the state’s shelf-stable laws could result in a $1,000 fine or up to six months in prison.
“Defendants actively and aggressively enforce its ban,” the lawsuit states. “Upon reason and belief, Defendants have recently sent cease-and-desist letters to individuals who are selling shelf-stable homemade foods. Defendants have also called people selling such foods and told them to stop selling, under penalty of law.”
In addition to the motion — filed by farmers Kivirist, Dela Ends and Kriss Marion — asking the court to declare that DATCP is violating the 2017 order by limiting allowable baked goods to only those that are flour-based, a new lawsuit filed Wednesday aims to add other items including fudge, candies, roasted coffee beans and granola to the list of products residents can make and sell from their homes.
Marion ran unsuccessfully for state Senate in 2018 and state Assembly last November. Other plaintiffs in the case include the newly created Wisconsin Cottage Foods Producers association, which represents people who make homemade foods for sale in the state, residents Mark and Paula Radl, who sell home-roasted coffee beans in Manitowoc, Stacy Beduhn, of Outagamie County, who bakes and sells cakes, and Steph Zink, who sells oven-baked granola in Milwaukee County.
Kivirist said the lawsuits were not the first attempt to legalize the sale of homemade goods in Wisconsin. That actually started years ago with multiple attempts in the state Legislature to pass a “Cookie Bill” that would allow residents to sell home-baked goods without needing a commercial license, while also implementing a cap on allowable sales.
Sen. Janis Ringhand, D-Evansville, who co-authored several attempted “Cookie Bills” before the eventual 2017 ruling, said the bills offered potential entrepreneurs a way to test the market without making the major investment that comes with a commercial-grade kitchen.
“Small businesses are risky, we now that, but this was one way of testing the waters,” Ringhand said.
At least three “Cookie Bills” have been introduced in the Legislature in recent years. Despite receiving bipartisan support in the Senate, those efforts have never reached a full vote on the Assembly floor.
Assembly Speaker Robin Vos, R-Rochester, who owns a popcorn business, did not schedule a vote on the bills, which he said he opposed as they had the potential to create an unequal playing field and undermine small businesses.
Smith pushed back against the argument that the homemade food market would have any major impact on established businesses, adding that most of the individuals who would be impacted see around $2,000-$3,000 in profits a year.
“That’s huge for their family, especially if you’re just barely trying make ends meet or you’re laid off and trying to have a stopgap, but it’s not putting the bakery on Main Street out of business,” Smith said. “I have always seen this as complimentary to commercial establishments.”