Home bakers launch suit against DATCP again seeking clarity on cottage foods sales

Grace Connatser
Wisconsin State Farmer
Wisconsin home bakers are headed to court against DATCP a second time to contest their interpretation of a 2017 court ruling that lifted a ban on the sale of cottage foods.

A group of seven Wisconsin home bakers and the Wisconsin Cottage Food Association have filed a lawsuit against the Wisconsin Department of Agriculture, Trade and Consumer Protection as part of a longstanding legal battle for the right to sell homemade foods.

With support from the Arlington, Va. public interest law firm Institute for Justice, the group of plaintiffs are following up after a 2017 ruling invalidated the state's total ban on cottage food sales. Since then, they claim DATCP has taken a too-narrow interpretation of the ruling by disallowing the sale of home-baked goods without flour.

Becky Otte-Ford has severe Celiac's disease and says she has a hard time eating out and finding tasty treats that are gluten free, so she'd like to start making her own gluten-free goods to sell on the side at her home bakery DelicateEssence. She said she's also interested in making vegan and organic food. But with the ruling saying you can't sell any home baked good without flour, it makes it nearly impossible for cottage foods buyers to find gluten-free options.

"I've made truffles for friends and family for Christmas for the past couple of years," Otte-Ford said. "If I was able to sell truffles or I was able to sell dry mixes ... and to be able to get something that's locally made, that's organic and fair trade and that tastes good that's also gluten free, that would be such a gift to people."

Otte-Ford added that since her business would be so small, the cost of investing in a commercial kitchen and licensing would make no sense compared to the small amount of income she would generate. She also doesn't plan on establishing a storefront, only operating from within her own home kitchen.

Becky Otte-Ford

Since the pandemic began, Otte-Ford's employment has also been affected. She said her income came from massage therapy, which she said has been nearly impossible to do during a time where social distancing is key. She'd be able to make extra money from selling her baked items if it weren't for the DATCP rule that would also go back into the community, she said.

"I was really excited about the idea of being able to sell my own baked goods to people. I really try my best to do things local if possible – local farmers for my eggs ... I do fair trade and organic sugar and chocolate in my baked goods," Otte-Ford said. "(It's) filling a void that isn't being met by local businesses currently, and at the same time, the work that I'm doing is supporting other local businesses."

Erica Smith, the attorney representing the plaintiffs and the attorney who was on the 2017 case, filed a motion in Dane County circuit court against DATCP claiming the agency is violating the 2017 court order through an unfair interpretation. Now, the lawsuit aims to make the law clear on what unlicensed home bakers are allowed to make and sell in Wisconsin.

Erica Smith

"They are narrowly interpreting our victory to say that, yes, you can sell baked goods, but they have to contain flour. And that's silly," Smith said. "They're just pulling that requirement out of thin air. The court said nothing about needing to contain flour and it's hurting a lot of people."

Smith said she's received emails for years after the original court case from Wisconsinites sharing their stories of their frustrations and complaints with DATCP. While the first case was a success, helping many people set up home businesses, Smith said it was necessary to revive the fight because there were still questions left unanswered for many more people who wanted to sell goods without flour.

This suit will be an uphill battle, Smith said, but she added that she believes the "public is on our side."

DATCP says the ruling specifically states that nonhazardous baked goods may be sold without a commercial kitchen or license issued through the agency. There is no legal definition of that concept under Wisconsin state law, but the term bakery is defined as selling baked goods with flour being a principle ingredient. Division of Food and Recreational Safety administrator Steve Ingham said that's how DATCP arrived at their interpretation.

"That's what we chose to use as our yardstick, figuring out what was covered by that judge's ruling," Ingham said. "We focused on the actual words used and made sure that those are legally defensible, so our legal folks were involved on that, I was involved on that. And it was a pretty straightforward determination."

Steve Ingham

Ingham stressed that DATCP is just trying to uphold the law as it stands today, and if the law changes, they would follow suit and enforce it. He said they also try to help people who are looking for resources to start selling cottage foods legally, like directing them to shared kitchens or rented kitchen space from local restaurants, since building your own commercial kitchen can get expensive quick.

But he did recognize that rural home bakers, who are well represented in the lawsuit, are affected by a lack of alternative options in their areas, unlike people who live in cities and suburbs. Plus, licensing costs money, though Ingham said most people pay less than $100 for a license. He said renting shared kitchen space could be anywhere from $5-15 an hour.

"There are people in cities that might want to try this sort of thing too, but ... they may have more opportunities close by," Ingham said. "We try to steer people towards these other routes that cost a lot less so that they can try out the concept. Some people take right to it and business booms, and others, maybe it's not what they planned on."

Dela Ends, one of the plaintiffs and co-founders of the Wisconsin Cottage Foods Association, said this issue is "vitally important" right now as many are out of work and looking for alternative income sources. Many more people had to close their storefronts because of the pandemic and instead operate from within their home, she said. Ends' own bed and breakfast establishment has closed because of COVID-19, and there's not much she can do to sell produce from her vegetable farm.

Dela Ends

"I've lost customers, and it's been hard, but rethinking, kind of turning the boat in new ways to make money for us – if we could dehydrate and preserve foods," Ends said. "Soup mixes and dried fruits and vegetables that would be easy to ship and would be something that doesn't spoil, and we could make money that way. But that's not allowed right now."

Home baker Stacy Beduhn says it's important for these small businesses to be in the community because they offer personalized, custom items that you can't find at grocery stores. Her business, Sweet Creations by Stacy, started picking up lately with wedding cakes and other sweets because she could no longer work in daycare. She also taught cake decorating classes at one point.

Beduhn said she went to every hearing for the Cookie Bill in the Wisconsin Legislature when it was on the floor. She said it was unfortunate that it would take a trip through the courts to resolve the issue. Calling it a "game of politics," she said she's unsure why DATCP sees non-flour items as hazardous, especially since they don't require refrigeration. 

"The way they worded it, it seems like you have to have flour in anything that you sell. That's as long as it doesn't require refrigeration after you bake it and decorate it, then you still should be able to sell it. So it raises questions," Beduhn said. "Why are we not allowed to make melted-down things? I just think it causes a lot of confusion."

Stacy Beduhn

Customers have asked her to make cocoa bombs, rice krispy treats, turtles, peanut brittle and many other treats that are commonly found in stores – but home bakers aren't allowed to sell them because they don't contain flour. Beduhn has refused these requests because she was unwilling to take on the risk of being caught and potentially fined.

"I'm just like, I'm not gonna risk it, I'm lucky enough to have this original ruling," Beduhn said. "I don't have an extra $25,000 to go rent or put a kitchen in."

This issue is also turning bakers against bakers, Beduhn said, in the form of licensed commercial bakers reporting unlicensed small business owners when they're caught violating the DATCP rules. There's even Facebook groups dedicated to that cause. With the confusion on what the law actually allows home bakers to sell unlicensed and without a commercial kitchen, Beduhn said she'd rather see the Cookie Bill finally pass because it would just make things easier to define, but Rep. Robin Vos, R-Rochester, continues to deny a vote.

"All it takes is one person who's in charge of voting on the final bill, who doesn't agree with it by the way, so that wasn't really going anywhere," Beduhn said. "I think it would clear up a lot of the confusion, even if they didn't pass it, if they could put something in there more specific."