Wisconsin cookie police come for farmer’s flour

Daryl James
Institute for Justice
Daryl James is an opinion writer for Institute of Justice, a public interest law firm in Arlington, Va.

Farm fresh baking starts with quality flour, and Cheryl Wedin knows it. Using organic wheat, she stone grinds her own blend at Lillabacken, a certified Wisconsin Century Farm that has stayed in her husband’s family since 1919. Her home-processed flour is safe, nutritious and delicious, and she has plenty to share with her neighbors in Burnett County.

Unfortunately, the Wisconsin Department of Agriculture, Trade and Consumer Protection will not let Wedin sell even one cup without first obtaining a commercial food license and paying tens of thousands of dollars to install a separate kitchen on her property built to restaurant standards.

Wedin is not alone. Regulators from the department have stopped dozens of others from selling safe and shelf-stable homemade foods, including candy and granola. Like Wedin, these budding entrepreneurs want to stay within the law. So, they reach out to the government for guidance on selling “cottage food,” the common term for products made in home kitchens. But instead of showing these would-be business owners a path to productivity, the state shuts them down.

The restrictions make little sense. In Wedin’s case, she could mix the same flour with water, sugar and eggs to make pastries and other treats that would be 100% legal for sale. But because flour is not baked, regulators say it is illegal to sell. They claim a 2017 Wisconsin circuit court ruling only guarantees the right to sell home-baked goods.

Even getting that much of a concession was difficult. The Department of Agriculture, Trade and Consumer Protection resisted for as long as it could, forcing the nonprofit Institute for Justice to sue for relief on behalf of cottage food producers across the state. Ultimately, the judge in the case found the ban on home-baked goods so irrational as to be unconstitutional.

Instead of getting the message, however, the same regulators have dug in again. This time, they have decided to take the strictest interpretation possible of the court order. “Baked” means baked in their minds, and little else.

As a result, homemade food producers in Wisconsin can sell bread but not granola. They can sell cookies but not fudge. They can sell cakes but not confections. Cotton candy, coffee beans and dried herbs are also off limits.

The only non-baked items that cottage food producers can sell are “high acid” canned goods, popcorn, maple syrup, sorghum, honey, eggs, fresh produce and apple cider—exceptions that existed prior to the court ruling. Home-based entrepreneurs practically need their own legal department just to keep everything straight.

Most other states have allowed cottage food producers to sell all types shelf-stable products out of their homes and at other venues for years. If Wedin moved just 15 miles west across the state line to Minnesota, for example, her flour suddenly would be legal. Overall, 19 states and Washington, D.C., have expanded their cottage food programs or created new ones since 2015.

The next reform might come in New Jersey, which remains the only state that completely bans cottage food sales. Following a separate lawsuit from the nonprofit Institute for Justice, New Jersey state lawmakers introduced legislation that would bolster proposed new rules from state health officials.

None of the cottage food reforms have produced any public health or safety issues. New Jersey regulators searched nationwide for problems and found nothing. Instead, the state points to “scientific evidence that supports a finding that shelf-stable food prepared in home kitchens is safe for consumers.”

Relaxing restrictions on homemade food also drives economic growth, something Wisconsin needs in the aftermath of COVID-19. Institute for Justice research, cited in a new study from the U.S. Department of Agriculture, shows the potential upsides. Women entrepreneurs, especially those in rural areas with working-class income, benefit the most when regulators get out of residential kitchens and let people innovate.

So far, that has not happened in Wisconsin. Rather than stifling enterprise, the state should enact administrative rules that explicitly allow the sale of all shelf-stable cottage foods. If banning home-baked goods is unconstitutional—something already established in Wisconsin—then the same principle should apply more broadly.

The distinction should not hinge on whether homemade food comes from the oven, the stove or the mill that Wedin set up on her farm. Baked means baked. But safe means safe.

Daryl James is a writer at the Institute for Justice in Arlington, Va.