The Full Background &
Two key things to know:
Selling non-hazardous baked goods legal since 2017
On May 31, 2017, Judge Duane Jorgenson, Wisconsin District Court in Lafayette County, struck down Wisconsin’s ban on selling home baked goods.
That decision officially went into effect on October 2, 2017, when the judge issued an order specifying that this May 31, 2017 ruling applied to everyone in Wisconsin and not just the three plaintiffs, Lisa Kivirist, Dela Ends and Kriss Marion. An additional document can be viewed here.
This means that as of October 2, 2017, Wisconsin home bakers are now free to legally sell their non-hazardous baked goods directly to customers!
Before the court decision, selling home baked goods was essentially banned. While there was an exemption for those selling home baked goods for a religious, charitable or other non-profit organization (i.e., “bake sales”), all other sales were prohibited. Instead, before a baker could sell even one cookie, they had to pay a fee, get a food license, and rent, buy, or build a commercial grade kitchen that was separate and apart from their home kitchen.
This changed with this court victory. According to the court, it is unconstitutional for the government to impose unreasonable and burdensome restrictions on selling home baked goods. The court decided that as long as home bakers are only selling “not-potentially hazardous” baked goods directly to consumers, they are free to do so without a license or commercial grade kitchen.
For the full story on the original lawsuit and the Institute for Justice’s support, click here.
2. New/second 2021 lawsuit to make all non-hazardous products legal
On December 28, 2022, the Judge’s ruled in our favor regarding our lawsuit to legalize selling not potentially hazardous products that do not go in the oven. Here are a few key immediate updates. We will fully update this site in February, 2022, after the 45 days have passed for the State to appeal (see below) and we have a clearer idea of the future.
* This covers all not potentially hazardous items such as cocoa bombs, fudge, most candies, roasted coffee, Rice Krispie treats, fried doughnuts and other items that do not need to be time/temperature controlled for food safety. Generally this means the item needs to have a water activity level of .85 or lower. If there is any doubt about your product meeting this standard, the product should be lab tested to ensure it is not potentially hazardous. It is the responsibility of the cottage food business owner to ensure the safety of their products.
* The State of Wisconsin has up to 45 days after this ruling to appeal the case. While you can sell these new products immediately, note things could change at any point before the middle of February. It is therefore advisable for both existing cottage food businesses and potential new upstarts to wait until we see what happens after 45 days (mid-February) and proceed from there.
* This new ruling does not change anything to the 2017 ruling that legalized the sale of not potentially hazardous home baked goods (i.e., baked in the oven). All baked goods are still legal per usual. The same general parameters also apply to these new additional not potentially hazardous items, per what’s outlined for baked goods on this site: Product must be sold in the state of Wisconsin directly to your customer and properly labeled. No gross sales cap. Note some of these products will now require you to collect and pay sales tax. Note some of these products will now require you to collect and pay sales tax.
• The transaction should take place within Wisconsin. The purchaser does not need to be a Wisconsin resident, but the product should only be sold within the state. Mail order is permitted but again only within the state of Wisconsin. After further review of the matter by the Institute of Justice, while there definitely is a potential legal argument for inter-state sales of cottage food, it is a gray area that requires clarification, and sellers should sell interstate at their own risk. Remember the transaction must still be direct to your consumer; you can’t sell to a retailer, like a café or a grocery store for resale.
• Please join the new Wisconsin Cottage Food Association to keep connected and updated on these important issues. Membership is free and open to anyone in Wisconsin who supports cottage food: producers, those thinking about starting a business, customers and supporters. https://forms.gle/3Wk3VhKrpqxHtEMQ6
3. Clarification: Baked goods do NOT need to contain flour
On May, 20, 2021, the original Judge in the 2017 ruling clarified that cottage food home bakers can sell anything that bottom line is baked in the oven and is non-hazardous. The item does not have to contain flour, as DATCP had been saying. A win for us!
What about the Cookie Bill?
Note that, given the Judge’s ruling, we do not need a “law” to enable us to bake. Yes, the “normal” process is for a bill to pass the Wisconsin Assembly and Senate and then be signed into law, but when that did not happen due to lack of elected leadership, we moved the fight to the Judicial branch and won.
Prior to the first lawsuit, we did spend several years trying this “normal” route of getting a bill passed. While versions of the Cookie Bill have passed the Senate, nothing ever went to a vote in the Assembly because Speaker Robin Vos would not put it on the agenda. All versions of the Cookie Bill are dead.
Therefore, it is very important that we all fully understand and operate under the information outlined in the Best Practices for Selling Baked Goods.
As new food entrepreneurs and baked goods business owners, it is each of our individual responsibility to utilize safe and best practices and together we will collaboratively grow this movement. Additionally, you may find yourself needing to help educate others on this current status; please forward this website as needed. If you are speaking with anyone unclear on the fact that we can now legally sell home-baked goods, feel free to give them a copy of this letter written by Erica Smith, the attorney with the Institute for Justice representing the successful lawsuit lifting the ban on the sale of home baked goods that will hopefully clarify things.
Wisconsin Farmers Union will be keeping the information on this website as accurate and up to date as possible. Please join the Wisconsin Cottage Food Association to keep connected and updated. Membership is free and open to anyone in Wisconsin who supports cottage food: Producers, those thinking about starting a business, customers and supporters.