Home bakers continue to face legal battles in right to sell flour, baked goods

Grace Connatser
Wisconsin State Farmer
Mason Hinton, a baker, runs his hands through freshly milled wheat flour at the newly-opened Turner Baking Co. in Turner on Sep. 5, 2019.

Cheryl Wedin is a mom to four kids, a wife to a former dairy farmer and an avid home baker.

Throughout the trials and tribulations of changing their farm format to find a comfortable income – from milking cows, to selling direct-to-consumer meat, to growing wheat – Wedin grew a love for baking bread from her homegrown wheat almost a decade ago. She played around with a flour mill and began baking her own creations, eventually upgrading to a commercial mill with a sifter expansion to create a whiter flour.

From there, she hoped to start a small side business with selling flour as a means of creating income, especially since her family had experienced some financial instability, and she knew someone who already sold homemade flour. But when she contacted the Department of Agriculture, Trade and Consumer Protection in 2016 to ask about selling the flour, she was told she had to upgrade to a commercial kitchen and install a three-compartment sink with potable water, which would cost her thousands of dollars.

"It was a brainchild of mine, one way we could add some diversification in income to our farm was that we could sell flour," Wedin said. "It just kind of ate at me that people can bake items out of their home kitchen and sell direct to consumer ... but I can't sell a dry component of those baked goods."

Wedin, unsatisfied with DATCP's answer, researched the statutes and court rulings surrounding cottage foods law, which only began allowing home-baked goods to be sold without a commercial kitchen in 2017. Wedin was convinced DATCP was not correctly enforcing the cottage foods law in Wisconsin and contacted the Institute for Justice, a public interest law-firm based in Arlington, Va., which originally litigated the case that lifted the ban on home-baked goods sales just three years ago.

Lafayette County Circuit Judge Duane Jorgenson ruled that a statewide ban on selling home-baked goods was unconstitutional, with Wisconsin being the second-to-last state in the US to make such a move (New Jersey is now considering overturning the ban, too). Jorgenson said there was no scientific evidence to indicate that selling the goods posed a risk to public health, and that the law merely protected existing commercial entities from competition.

The state assembly has also failed to vote three times on the "Cookie Bill," legislation that would have allowed home bakers to sell their goods unfettered by the need for commercial licensing. Even though the bill found bipartisan support in the state senate, assembly speaker Robin Vos, R-Rochester, has continued to shoot it down, claiming it harms small businesses. Vos also owns his own popcorn business, Rojo's Popcorn.

The next generations of Wedin in front of the barn. From left: Gus, Kjersten, Anna and Erika.

But Wedin says the competition home bakers would pose to commercial businesses is negligible, and, in fact, her sales would only help the local community, especially during a time like the COVID-19 pandemic. She said it doesn't make sense to her that she can sell baked goods like cookies or cakes, but when it comes to flour, the main ingredient of those goods, it can't be sold unlicensed – even though there is no evidence that bacteria from raw flour would survive the cooking process.

"If we've been (selling homemade goods) all this time and there hasn't been any issues, that should be looked at as inherently safe," Wedin said. "Businesses are closing down, more people are getting laid off – it's more important than ever that ... if people have a skill or a good or service to trade or barter, they should be able to do that."

Erica Smith, an attorney with the Institute, is representing Wedin's case against DATCP, which may turn into another lawsuit. Smith argues that DATCP is unfairly interpreting the 2017 ruling to the narrowest extent possible, claiming that the agency won't even allow granola to be sold even though it's baked. She said Wisconsin is "behind the times" because most states allow home bakers to sell all sorts of cottage foods with varying degrees of freedom.

Daryl James, who writes opinion pieces for the Institute, said home operations and commercial operations can't and shouldn't be regulated in the same way, like what DATCP is doing. He said this kind of regulation hinders local communities from getting what they need, especially during a pandemic, where flour shortages have affected several states because people kept indoors have spent their time baking.

"I just think that (DATCP) has this mentality of over-regulation," Smith said. "They have this idea in their mind that anything not baked has to be unsafe, even though the judge in the ruling and expert testimony showed that's not true, that homemade shelf-stable foods are incredibly safe. They're safely sold across the entire country."

Wedin also said that being able to sell her homemade flour and other goods would remedy some struggles faced by those in her town of Grantsburg, where less than 1,000 people live, which Wedin says lacks jobs and access to food. She said DATCP needs better checks and balances because it seems like they "make the rules as they want to."

Kevin Hoffman, a public information officer with DATCP, released the following statement in response to the situation:

"The department is well aware of the interest in home-based food businesses across Wisconsin. However, state law only exempts processors of a few listed foods from licensing requirements. The department has followed the court’s decision to lift licensing requirements for home-bakers of non-potentially hazardous baked goods for direct sale to consumers. There are statutory prohibitions against writing administrative rules or setting policies outside of the scope of state law, so the department cannot create exemptions to existing licensing requirements."

This isn't the first time Wisconsin farmers have faced opposition from DATCP and the legislature about selling homemade foods. Dela Ends, one of the plaintiffs of the 2017 Lafeyette County case and a long-time member of the Wisconsin Farmers Union, said she was a proponent of the Pickle Bill, which passed in 2009 to allow people to sell canned goods without a license. But she was concerned that the bill was so narrowly focused and did not include other homemade goods, like baked food, which she said is less dangerous to human health than canned goods are.

For Ends, this legal battle is frustrating because she believes it's a simple and harmless law to have, but despite bipartisan support for these initiatives, Vos continues to block the legislature from making them law. She said it's especially important now when businesses are failing, restaurants are closing and people are suffering from food insecurity and unemployment. 

A judge's decision that a state ban on the sale of home-baked good was unconstitutional was a sweet victory for the case's three champions (left to right) Dela Ends, Brodhead; Lisa Kivirist, Browntown; and Kriss Marion, Blanchardville.

"I talked to one woman and she said, 'I just want to make enough money selling my baked goods to be able to pay off my property taxes for my farm,'" Ends said. "This whole thing has taken many years, and it's frustrating because it's a pretty simple, good for the people law. In Madison, when they want to slam through some legislation, they do it, but to drag and drag on this never made any sense to me."

Ends also said DATCP is to blame for how they regulate home bakers – she said the agency looks "silly" when they over-regulate home bakers because of a lack of evidence that it harms public health. Ends said corporate interests are what is blocking home bakers from being able to make a living doing what they love.

Kriss Marion, another plaintiff from 2017, said the case is what inspired her to run for state assembly representative in the 51st district because she wants to change the law on home baked goods. She said it's a "no-brainer" that bakers should be allowed to sell their food because the farm-to-table trend is very popular among farmers and agriculture enthusiasts in the state. She also said legislation would improve local markets and get money flowing in the community. Part of Marion's platform includes a "food freedom policy."

"What the pandemic showed us almost immediately was that these giant global supply chains are actually really vulnerable, and currently farmers have few opportunities to participate in any other kind of supply chain," Marion said. "We could create an opportunity for local markets, local supply chains, that will help farmers get a better piece of the pie."

Smith and James said consumers need to be able to trust the people they buy their food from, and increasing freedoms for home bakers would also increase that trust. They said the current restrictions are arbitrary and have no meaning, because some foods are more dangerous than others but are subject to the same regulations, while other foods are still banned while they are not as dangerous as foods people can still sell. Overall, the Institute for Justice wants to raise awareness for the issue and gain grassroots support from small farmers across Wisconsin.

"We want the residents of Wisconsin to put pressure on the policymakers and get a grassroots movement going," James said. "We would hope that the policymakers in Wisconsin would be responsive to the needs of the people who make reasonable requests."