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Chippewa Falls, WI 54729

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© 2017 by Wisconsin Farmers Union

 Best Practices for Selling Baked Goods

As of October 2, 2017 Wisconsin home bakers are now free to legally sell their not-potentially hazardous baked goods directly to customers! The following outlines what you need to do to sell baked goods in compliance with the court decision along with best practices. 
Please note that, because of the Judge’s ruling, we do not need a law to legally bake.  We can start baking right now.  Our Wisconsin Legislative branch has the right to pass a reasonable law (check back for updates on that front), but in the meantime, again through the Judicial branch, we are free to bake.
What is a “Not-Potentially Hazardous” Baked Good?

•  A “not-potentially hazardous” baked good is one that can safely remain unrefrigerated.

•  While most cookies, muffins, cakes, and breads are typically not-potentially hazardous and have a low moisture content that inhibits mold growth, not all are.  For example, some baked goods with vegetables as an ingredient such as zucchini bread or pumpkin muffins may not qualify as non-hazardous as they are too moist.

•  For example, foods with cream filling, custard, cheese  or meat are potentially hazardous and are definitely not allowed.   A traditional buttercream frosting that requires refrigeration would also not be allowed.

•  Note a “not-potentially hazardous” baked good is determined by the ingredients and how they interact with each other, not the category of food.  The question comes up frequently:  “Can I make cupcakes, cookies, etc.”  There isn’t a category of food that you can or can’t make, it all depends on the ingredients and how they add up together to the end result product as to whether or not it is “not potentially hazardous.”

•  If you are at all unsure if your item is not-potentially hazardous, you can simply submit the recipe to a science lab that can test for the official non-hazardous definition per the FDA Food Code of a “water activity value of 0.85 or less.” When in doubt, always err on the side of caution.  Here are a list of labs that perform this test, typically for around $25:  Wisconsin Laboratories

•  We can only sell baked goods.  Chocolates, candy, dry mixes and anything that is not baked (i.e., a cookie/energy bite that just has ingredients rolled together) are not considered baked goods and are not currently allowed.

•  Cottage food laws only apply to food products, not food service.  You can sell someone a whole bundt cake, but you can’t slice it and serve it on a plate for sale.  That would be food service and would require various other licensing including a commercial kitchen. 

•  If you are interested in producing something other than a not-potentially hazardous baked goods, the Wisconsin Food Processing Guide is a good resource.  Note:  you can purchase for $15.

Where Can We Sell Our Baked Goods?

Allowed: 

  • Direct to consumer sales, including:

    • Selling from your home, such as a customer coming to pick up an order

    • Farmers' markets

    • Community events

    • CSA boxes

    • Taking orders directly from customer (i.e. someone places a birthday cake order with you)

  • Selling within Wisconsin

Not allowed:

  • Potentially hazardous baked goods (see above)

  • Wholesale sales to restaurants or other retail businesses

  • Selling to other states besides Wisconsin

  • Slicing a cake and serving it by the piece to customers, which is classified as food service

•  Be sure to check with any local regulations your town or county may have regarding home based businesses.  

•  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

How Should I Label My Baked Goods?

Although there is currently no specific labeling requirement for baked goods, we strongly suggest modeling the recommendations in the current Pickle Bill for labeling:

1)  The statement that “This product was made in a private home not subject to state licensing or inspection.”

2)  A list of ingredients in descending order of prominence, including any allergens.  The eight most common allergens are milk, eggs, fish, crustacean shellfish, tree nuts, wheat, peanuts, or soybeans.

3)  The date the baked good was made.

4)  Your name/business name and contact information.

How Much Can I Make?

•  Under the Judge’s ruling, there is no gross sales cap for selling baked goods.  You can currently earn as much as you want out of your home kitchens (note over 20 other states do not have gross sales caps; it isn’t that unusual). 

• This may change if a Cookie Bill is passed that has a gross sales cap which we would need to follow. Senate Bill 271 has a reasonable $25k gross sales cap. Note this bill has not been scheduled for a vote in Assembly.

•  Note the Judge’s ruling only applies to not-potentially hazardous baked goods and does not affect the current Wisconsin cottage food law covering high acid products (aka the “Pickle Bill”).  You must follow the current law in selling these products. 

This all adds up to the opportunity for you to become a food business owner today, right from your home kitchen.  With that, you also immediately become an empowered entrepreneur and have the freedom and control to set up and run your business, from establishing a name, managing expenses and accounting, marketing, utilizing food safety practices, etc.  Treat yourself as the professional you now are and do your due research and diligence in running your entity professionally – and profitably! 

The book, Homemade for Sale:   How to Set Up and Market a Food Business from Your Home Kitchen, by Lisa Kivirist (one of the plaintiffs in the Wisconsin case) and John Ivanko covers in much more detail resources for your cottage food business start-up.  Click here for the book.