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CHIPPEWA FALLS – Wisconsin Farmers Union and home bakers across the state of Wisconsin are celebrating a May 31 court ruling that affirms the right of home bakers to make and sell non-hazardous baked goods directly to consumers without costly licensing.

A district court judge in Lafayette County found that the state's prohibition on sales of home-baked cookies, muffins and scones violated the constitution's Substantive Due Process and Equal Protection Clauses. The judge found that the state could not justify the ban on sales of home-baked goods while allowing home-baked goods to be served at bed and breakfasts, and while allowing sales of home-canned goods like jams jellies, and pickles.

The decision does not go into effect immediately, but is stayed until the end of June to allow the state time to decide whether to appeal the ruling.

"I have been legally serving guests baked treats from my licensed and inspected home kitchen for over 20 years, but have lost income every year because I can’t legally sell guests the same muffin," said Inn Serendipity Farm and Bed & Breakfast owner Lisa Kivirist, one of the bakers who challenged the state law. "In addition to being illogical, it was stifling entrepreneurship."

Co-plaintiff Kriss Marion of Circle M Market Farm and bed and breakfast agreed.

"We need as many opportunities as possible for small business start-ups in our rural communities," she said. "I am excited to see what new enterprises will spring up as a result of today's ruling."

Marion hopes to start selling cookies and other baked goods at her local farmers market as soon as the court’s ruling takes effect.

“Compared to the rest of the country, Wisconsin has been dead last in start-up activity for three years running. I’m hoping this ruling can be a small part of turning our anti-entrepreneurial policy bias around,” Marion said. “But I think the decision is especially important for our struggling farm families. With our strong agricultural history, Wisconsin should be leading, not lagging behind, in the growing farm-to-foodie movement. What holds us back is policy, not talent, and it is time to put some political energy into local food initiatives, agri-tourism and direct sale innovation.” 

Another baker eager to get rolling is Dela Ends, owner of Scotch Hill Farm. Ends joined Kivirist and Marion in challenging the baked goods ban, and said she feels delighted and empowered by today's ruling.  

"People are always telling me, 'Your cinnamon rolls are so good, you should sell them!' But because of the state law, I felt like my hands were tied. It would have been prohibitively expensive to build or rent a commercial kitchen to do what I have been safely doing in my home kitchen for years."  

As soon as the court decision takes effect, Ends plans to generate additional income on her farm by offering baked goods to her CSA customers.

The three Wisconsin bakers were represented by Erica Smith and Michael Bindas, attorneys at the nonprofit law firm, the Institute for Justice.

Smith said, “This decision is a victory for farmers, families, and everyone in Wisconsin who has a sweet tooth.”

Aspiring home bakers should be aware that the ruling only covers non-hazardous baked goods - products that do not require refrigeration and will not support the growth of harmful bacteria.

Cookies, scones, yeast breads, and low-moisture quickbreads and muffins are considered the safest, along with icings that do not require refrigeration. On the other hand, filled pastries, custard pies, cheesecake, candies, and some frostings containing dairy products are unlikely to have a pH of 4.6 or lower or a water activity value of 0.85 or below – the hallmarks of a non-hazardous baked good.  

Even after today's ruling takes effect, such potentially-hazardous products will still need to be produced in a licensed commercial kitchen.

"For items that are questionable, the only sure way to know that you are in the clear as a home baker is to use a recipe that has been tested in a food lab, or to have a recipe tested yourself,” said Wisconsin Farmers Union Government Relations Director Kara O'Connor.  "Food safety should be the top priority for home bakers."

O'Connor encouraged home bakers to adopt best practices for Cottage Foods: use approved recipes, label ingredients and note potential allergens, and provide baker contact information on labels or at the point of sale. 

O'Connor expects that, in light of today's ruling, the legislature will take action to clarify labeling, registration, and other requirements for home bakers.

Such legislation, known as the "Cookie Bill," has enjoyed broad bipartisan support in the legislature and has passed the Senate twice, but stalled each time when it hit the Assembly.

Senators Sheila Harsdorf and Janis Ringhand and Representatives Ed Brooks, Jim Ott, Michael Rohrkaste, along with many others in the legislature, have been loyal champions of the Cookie Bill. 

"Wisconsin Farmers Union looks forward to working with the legislature once again to ensure that home bakers have clear guidelines and meaningful opportunities to launch their local food businesses," said O'Connor.

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