Organic Broadcaster

Wisconsin farmers win freedom to sell home-baked goods

By Lisa Kivirist

Thanks to cottage food laws in just about every state, farmers can diversify and sell to their community certain “not potentially hazardous” food products made in their home kitchen, such as breads and cookies, and jams, jellies and pickles. After years of waiting, Wisconsin bakers can finally can catch up with the rest of the country as the state’s ban on the sale of homemade baked goods has been officially lifted.

Lisa Kivirist, owner of Inn Serendipity bed and breakfast and crusader for the legalization of the sale of baked goods in Wisconsin. Photo by Lisa Kivirist

On Oct. 2, 2017, a Lafayette Circuit Court Judge clarified his May 31, 2017 ruling that the state’s ban on selling home-baked goods is unconstitutional. Up until October, Wisconsin officials had argued that the ruling was limited to the three plaintiffs in the lawsuit challenging this ban in state court: myself and fellow farmers Kriss Marion of Circle M Farm and Dela Ends of Scotch Hill Farm. But on Oct. 2, Judge Duane Jorgenson officially disagreed and clarified that his ruling applies to all home bakers in the state.

Start your ovens, Wisconsin! After nearly five years of farmer-led grassroots kitchen activism, this ruling immediately opens up opportunity, particularly for farmers looking to diversify on-farm income streams by adding on a bread share to CSA or bringing baked goods to farmers markets, for example.

In his initial May decision, Judge Jorgenson found that the ban had “no real or substantial connection” to protecting the public, because there was no instance of anyone ever becoming sick from an improperly baked product despite home-baked goods being legally sold in 48 states. In addition, the judge found that the ban only benefited special interest groups, like the Wisconsin Bakers Association, who wanted the government to shut down healthy competition from home bakers.

“This ruling is a major step for economic liberty and common sense in Wisconsin,” said Erica Smith, our lead attorney on the case with the Institute for Justice. “Wisconsin was one of only two states, the other being New Jersey, that banned the sale of goods baked in a home oven. Before a person could sell even one cookie, they needed to acquire an expensive commercial kitchen and a burdensome commercial license. Now, Wisconsin home bakers are free to sell their baked goods out of their home, at community events and at farmers markets—something people are already doing in almost every other state every day.”

This victory is particularly sweet to me personally. The opportunity behind cottage food laws to champion new entrepreneurs inspired my husband, John Ivanko, and I to write the book Homemade for Sale: How to set-up and market a food business from your home kitchen, serving as the national authoritative guide to cottage food start-ups, covering everything from business set-up, marketing and recipe development. Now, finally, these resources can also support new kitchen entrepreneurs in my home state of Wisconsin to thrive.

Wisconsin is now in a unique situation as we have a judicial ruling that lifts the ban on the sale of home baked goods, but we have no law or specific regulations. There has been a “Cookie Bill” that has passed the Wisconsin Senate multiple times, but Assembly Speaker Robin Vos has indicated he will never bring the Bill to the Assembly floor for a vote.

“While the legislature may pass a bill in the future that authorizes Wisconsin’s Department of Agriculture, Trade and Consumer Protection (DATCP) to make reasonable regulations, for now the legal touchpoint for home bakers is the judge’s ruling. The ruling states that baked goods must be of the non-hazardous variety, prepared in a sanitary home kitchen, and sold directly to consumers,” explains Kara O’Connor, Policy Director for the Wisconsin Farmers Union. “It is important that new Wisconsin cottage food entrepreneurs educate themselves on what non-hazardous baking is and operate reasonably. The Wisconsin Farmers Union set up a general informational website at www.wisconsincottagefood.com to help get you get started with your home baking business.”

Specifically, 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 because they are too moist. Foods with cream filling, custard, meat, or icing made with dairy products are potentially hazardous and are definitely not allowed.

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 around $25 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. The Wisconsin Cottage Food website (WisconsinCottageFood.com) has a list of testing labs.

Labeling

Although there is currently no specific labeling requirement for baked goods, it is advisable to label and include these four things:

1) A statement to the effect 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 to note 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.

Selling

All sales must be direct to your customer, which can be anything from farmers market sales to filling a special order from a customer. Wholesale or resale or sales across state lines is not permitted. Because there is no law in Wisconsin, there currently is no gross sales cap for the sale of home baked goods. Note that the lifting of the ban on baked goods does not affect Wisconsin’s existing cottage food law covering high-acid canned items, commonly called the “Pickle Bill.” High-acid products still have a gross sales cap of $5,000, and sales can only be done at public venues like farmers markets.

“None of us would have ever imagined we were in for such a long and strange fight to end the ban on home baking in Wisconsin, but we have shown that persistence pays off,” added plaintiff Dela Ends of Scotch Hill Farm, who also serves on the MOSES board. “Small businesses are the backbone of our local economies, and I am so happy to see justice and the farmer voice prevail.”

Think creatively on ways to diversify and add baked goods into your farm business mix. Ends plans to add a “baking share” to her next CSA season, with a focus on the more savory and healthy recipes and experiment with gluten-free items. For me, my family and I have been running our farm stay B&B, Inn Serendipity, for over 20 years and now can finally sell baked goods to guests that I could legally only serve all these years.  We’ll be diversifying and adding “Inn Serendipity Bakes” this winter and offering a variety of holiday cookies featuring local ingredients like our farm pumpkins and Wisconsin maple syrup and dairy.

“Adding baked goods can really boost attendance and success of small town farmers markets like mine,” explained Kriss Marion of Circle M Farm and the third plaintiff in our successful lawsuit. “We immediately saw this effect at the tiny rural market in my hometown of Blanchardville as both new businesses popped up that then drew more customers and gave the whole market a fun and lively draw.”

Get our your spatulas, Wisconsin bakers, and see WisconsinCottageFood.com for updates. Find Homemade for Sale in the MOSES online bookstore at mosesorganic.net.

Lisa Kivirist coordinates the MOSES In Her Boots project. She and her husband also write books from their bed-and-breakfast inn in southern Wisconsin.

 

From the November | December 2017 Issue

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