Why you could go to jail for selling a cookie in Wisconsin

Three farmers and home bakers are now challenging a Wisconsin law that bans selling homemade baked goods in a lawsuit. 

Amateur bakers, take heed: In Wisconsin, selling your homemade chocolate chip cookies is a jailable offense.

It may be the Cheese State, but not every dairy delicacy is created equal in Wisconsin, where it’s illegal to sell homemade baked goods without a commercial license. The penalties for doing so can range from up to $1,000 in fines to six months in jail.

While supporters of the law insist that it rightfully protects merchants and small businesses in the baked dessert industry, home bakers say it isn’t fair.

“The state’s home-baked-good ban hurts farmers, homemakers and others who just want to help support their family by selling simple goods from their home oven,” Lisa Kivirist told Wisconsin Watchdog. “Not to mention that the ban prevents customers from buying the fresh and local foods of their choice.”

Taking the matter into her own hands, Ms. Kivirist is now one of three farmers who are suing the state Department of Agriculture, Trade, and Consumer Protection, challenging the constitutionality of the ban as a violation of their equal protection rights and due process. Their attorneys are part of the Institute for Justice, a nonprofit law firm that challenges the “size and scope of government power.”

According to the Institute for Justice website, Kivirist owns a bed and breakfast in Green County, Wis. As a hostess, her muffins and other baked goods are a hit with customers. But despite their requests to buy her sweet treats, she’s sanctioned by law to refrain from selling them.

“If I lived a half hour to the south in Illinois, I could make up to $25,000 a year selling homemade baked goods,” she told Forbes. “But in Wisconsin, our spatulas are tied.”

Under the current law, Kivirist and her cohorts need a license as a “food processing plant” or “retail food establishment,” according to the lawsuit. Both require commercial kitchen facilities, which could cost up to $80,000, in addition to the cost of rent for the extra space each month.

“One of our clients was successfully selling at farmers markets and she was selling out her goods,” said attorney Erica Smith at the Institute for Justice. “When she found out about this law, she had no choice but to stop. She couldn’t risk these fines or possibly going to jail.”

But unlike muffins, cookies, and bread, there are other homemade products exempt from the ban. Amateur producers of honey, popcorn, jelly, and syrup, for instance, are allowed to sell their items. Churches and other nonprofit groups may sell baked goods up to 12 times times a year. But when an individual does the same, regardless of personal or public interest, it becomes an automatic offense.

In 2013, a bill in the state legislature was introduced to revoke the ban. Initially backed by more than 30 lawmakers, the bill allowed up to $7,500 in annual homemade baked goods sales. Although it passed in the Senate, it ultimately fizzled in the Assembly.

The Institute of Justice attorneys claim that it failed because of a political conflict on the part of Assembly Speaker Robin Vos, who owns a popcorn packaging company called Rojos Popcorn.

But the commercial food industry in Wisconsin also celebrated the failure of the legislation.

“If several people in a certain market or particular community are doing that, they’re eating away at a local baker that’s been there for 100 years and taking away his livelihood. How is that fair?” Dave Schmidt, executive director of the Wisconsin Bakers Association told Wisconsin Public Radio.

There is only one other state in the US that bans selling homemade goods: New Jersey.

Filed two weeks ago, the lawsuit is currently pending in Wisconsin’s Lafayette Circuit Court.