Wisconsin Baked Good Ban
Selling home-baked goods is now legal for the first time in Wisconsin, thanks to a successful lawsuit filed by the Institute for Justice and their clients, Lisa Kivirist, Kriss Marion, and Dela Ends.
Before the lawsuit, it was illegal to sell even one cookie without first obtaining a license and spending tens of thousands of dollars to rent or build a commercial grade kitchen, which had to be in a separate room or building from one’s home kitchen. Anyone who violated the law and sold baked goods made in their home kitchen risked fines of up to $1,000 or six months in jail. Wisconsin was one of only two states (the other being New Jersey) to ban the sale of home-baked goods.
That all changed after three Wisconsin farmers joined with the Institute for Justice in filing a constitutional lawsuit in state court against Wisconsin’s State Department of Agriculture on January 13, 2016. The lawsuit asked the court to strike down Wisconsin’s arbitrary home-baked-good ban and allow home bakers to sell home-baked goods—like muffins, cookies and breads—directly to their friends, neighbors and other consumers.
On May 31, 2017, a Wisconsin trial court agreed with the Institute for Justice and ruled the ban unconstitutional. As the trial court found, Wisconsin’s home-baked-good ban had nothing to do with safety. The uncontested evidence showed there was no health risk from improperly baked goods. Moreover, the state already allowed the sale of homemade foods such as raw apple cider, maple syrup and popcorn, as well as canned goods such as jams and pickles, even though the evidence showed that baked goods were as safe or safer than these other goods. The state even allowed nonprofit organizations to sell any type of homemade foods at events up to 12 days a year. As the trial court found, it was blatantly irrational to allow these goods to be sold without a license and commercial grade kitchen, but not baked goods.
Instead, the only reason the ban on home-baked goods existed was purely political. For years, commercial food producers such as the Wisconsin Bakers Association and the Wisconsin Grocers Association lobbied against “Cookie Bills”—which would allow the limited sale of home-baked goods. These groups were motivated to protect themselves from competition. In fact, the Wisconsin Bakers Association sells 400,000 creampuffs every year at the state fair under the nonprofit exemption—all without a license.
Assembly Speaker Robin Vos, who owns his own commercial food business, even refused to allow the Assembly to vote on a Cookie Bill, despite bipartisan support in both houses of the legislature. When the CBS Sunday Morning show covered the lawsuit in April 2017, Vos admitted to the reporters he was motivated to protect other businesses from competition:
“While it’s important that Wisconsin attracts new entrepreneurs, it should not be at the expense of our small businesses that are currently meeting the standards and regulations. The legislation that was proposed last session would have created an unequal playing field and undermine small businesses who make up nearly 98 percent of Wisconsin businesses, employing half of the workforce in our state.”
Fortunately, protecting other businesses from competition is a wholly illegitimate government motive. Although the State may pass laws that truly protect the public health and safety, the ban on selling home-baked goods did anything but that.
After the judge’s May 31 ruling, the State Attorney General’s Office tried to keep enforcing the baking ban against all bakers besides the three plaintiffs in the case. However, the Institute for Justice refused to give up and continued to litigate the case. On October 2, 2017, the judge clarified that his ruling protected all home bakers. As a result, home bakers across the Badger State are now free to sell safe, delicious baked goods that do not require refrigeration directly to consumers.
It is unclear whether the State will appeal the decision.