A handful of Wisconsin residents have sued the state agriculture department to expand the list of homemade goods that small, household operations can sell to include candies, fudge, granola, roasted coffee beans and more.
In a related matter, residents also filed a motion in a nearly 4-year-old court case, alleging the Wisconsin Department of Agriculture, Trade and Consumer Protection is improperly interpreting a judge’s 2017 decision allowing private residents to sell home-baked goods directly to consumers.
As a result of the 2017 ruling, DATCP now 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.
The measures were both filed last week in Lafayette County Circuit Court against DATCP and department Secretary Randy Romanski. They focus on DATCP’s enforcement of laws surrounding the sale of foods with long shelf lives or that aren’t potentially hazardous.
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 handful of residents filed a lawsuit to expand that list to include home-baked items, Lafayette Circuit Court Judge 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 items that aren’t potentially hazardous, which is defined in state law 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 the 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 food vending 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.”
DATCP spokesman Kevin Hoffman said in an email that, with regard to enforcing state law, “DATCP responds to any complaints that are received and works to educate home bakers about state laws and regulations.
“Additionally, the department takes steps to proactively communicate the necessary requirements home bakers must meet to obtain the proper license,” Hoffman added.
Others join in
Farmers Dela Ends and Kriss Marion joined Kivirist in filing the motion asking the court to declare that DATCP is violating the 2017 order by limiting allowable baked goods to only those that are flour-based. In addition to the motion, 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 as a Democrat for state Senate in 2018 and state Assembly in 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 started years ago with multiple attempts in the 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 know 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 because 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 to $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 complementary to commercial establishments.”
Fave 5: State government reporter Mitchell Schmidt shares his top stories of 2020
Choosing my five favorite stories of 2020 seems almost paradoxical.
This year has felt like one exhausting slog of pandemic stories, state Legislature updates and, oh yeah, a presidential election thrown in for good measure. Thanks to a split government, there's been no shortage of politically-charged stories here in Wisconsin and the partisan divide has, maybe unsurprisingly, felt as wide as ever throughout the COVID-19 pandemic.
I don't know if "favorite" is the best way to describe them, but here are a few stories from 2020 that stood out to me:
Back in March, Gov. Tony Evers issued the state's first public health emergency in response to the then-emerging pandemic. At the time, Wisconsin had reported eight total cases of COVID-19.
As the pandemic progressed, positive cases and deaths climbed and state lawmakers battled over the appropriate response. In May, the Wisconsin Supreme Court struck down Evers' stay-at-home order, a decision that still resonates today with the state's coronavirus-related measures.
One story I was particularly excited about before I officially started working for the State Journal was the 2020 Democratic National Convention in Milwaukee. However, like most things this year, the pandemic drastically altered that plan.
In non-pandemic news, the state in October formally denied billions of dollars in state tax credits to Foxconn Technology Group — a story we managed to get before any other outlet in the state through records requests and sourcing.
Lastly, in November I worked on a story about how GOP-drawn legislative maps once again disproportionately benefited Republicans in state elections. Wisconsin is headed toward another legal battle next year when the next batch of 10-year maps are drawn.
Feel free to read my top stories below, or check out my other state government articles from this year, (by my count, there have been more than 300 so far).
Also, thanks to all the subscribers out there. This year has been challenging on so many people, so your support is so much appreciated.
Gov. Tony Evers declared a public health emergency in response to the growing number of COVID-19 coronavirus cases in Wisconsin, hours before …
In a 4-3 decision, the Wisconsin Supreme Court on Wednesday struck down the state’s stay-at-home order, handing Democratic Gov. Tony Evers a d…
With the nation continuing to deal with the COVID-19 pandemic, the DNC Committee announced first that delegates and then that most convention …
Wisconsin is denying Foxconn Technology Group billions of dollars in state tax credits until officials with the company come to the table to d…
Continuing a decade-long trend in Wisconsin due in part to GOP-drawn legislative maps, Democratic candidates on Tuesday secured fewer legislat…
"The judge said baked goods and that’s what the ruling should apply to, people selling baked goods. It doesn’t matter if they’re made with flour.”
Erica Smith, senior attorney with the national nonprofit Institute for Justice