New Cookie Bills that would allow the unlicensed, face-to-face sale of not potentially hazardous home-baked goods, up to $7,500 annually, were introduced in the Senate and Assembly in October 2015. The Wisconsin Bakers Association immediately began lobbying against the bills, stating “[W]e don’t need more competition; we need cooperation from our government!” It is widely expected that Speaker Vos will again block a vote.

The Plaintiffs

One group that is particularly hurt by the home-baked-good ban is small farmers, who rely on selling homemade goods to make ends meet. That is the case with the three plaintiffs in this lawsuit—Dela Ends, Lisa Kivirist and Kriss Marion. These women simply want to sell their delicious and safe home-baked goods to their neighbors, community members and guests.

Dela Ends

Dela Ends owns and runs a small, USDA-certified organic farm, called Scotch Hill Farm, with her husband and children in Green County. Dela and her family are passionate about sustainable agriculture. For instance, Dela and her husband volunteer in Africa teaching sustainable farming practices to women, and their farm offers community-supported-agriculture (“CSA”) subscriptions so that members of the community can receive monthly produce deliveries. Another way that Dela practices sustainable agriculture is by baking breads and other baked goods with grains from her farm.

Selling her home-baked goods would let Dela help support her family, which has become more challenging in recent years. Demand for Scotch Hill’s organic crops has suffered since the recession, and as Dela gets older, it is more difficult for her to work the fields; she recently had a double-knee replacement and wants to contribute to her family’s income in a way that is less physically taxing.

Selling baked goods would be the perfect solution—if only it were legal. Dela used to frequently sell her baked goods at farmers’ markets and would often sell out. But Dela stopped when she learned about the ban. Dela also wishes to include her home-baked goods in the monthly produce boxes for her CSA subscribers. This would be especially helpful in the months in which it is harder to fill boxes, as well as at times when particular crops are not doing well.

Lisa Kivirist

Lisa Kivirist is a mother, farmer, business owner and avid baker. Lisa and her husband own and run a small farm, as well as a bed and breakfast in their home called Inn Serendipity. They live in Green County.

The ban has a real effect on Lisa’s pocketbook. Lisa typically serves muffins and other baked goods at her B&B for breakfast, but the baked-good ban prohibits her from selling these same exact goods to guests—despite frequent requests. Lisa often winds up giving the extras away. In addition, Lisa often goes to community events and farmers’ markets to sell her home-canned goods, but the law prohibits her from also selling her home-baked goods at these same events.

Kriss Marion

Kriss Marion is the founder of her local farmers’ market in Blanchardville, Wisconsin. Like Lisa, Kriss owns a farm and B&B, called Circle M Market Farm in Lafayette County, with her husband.

Every week at farmers’ markets, Kriss legally sells her farm-grown vegetables, but she is prohibited from selling the muffins and other baked goods she makes at home. Kriss also wishes she could sell muffins and bread to her B&B guests, who frequently request them for their hiking trips and car rides home. Kriss must instead give her extra baked goods away or feed them to her pigs and chickens.

The Defendants

The Defendants are the Wisconsin Department of Agriculture, which is in charge of enforcing the ban, and its secretary, Ben Brancel.

Legal Claims

Dela, Lisa and Kriss are challenging the constitutionality of the home-baked-good ban in Lafayette Circuit Court. Specifically, they challenge the ban as a violation of their due-process and equal-protection rights under Article I, Section 1 of the Wisconsin Constitution. All that they ask is that people in Wisconsin be able to sell safe home-baked goods, like cookies, muffins and breads, directly to consumers.

Article 1, Section 1 of the Wisconsin State Constitution states that “[a]ll people are born equally free and independent, and have certain inherent rights; among these are life, liberty and the pursuit of happiness.” Article 1, Section 1 protects Wisconsinites’ due-process rights. One of these rights is the right to pursue a chosen livelihood without arbitrary, unreasonable or oppressive governmental interference. The home-baked-good ban violates this right because there is no genuine safety reason to impose an onerous licensing scheme and require home bakers to spend tens of thousands of dollars to access a commercial kitchen before selling cookies. Goods like cookies, muffins and breads are perfectly safe when made in a home kitchen.

Article 1, Section 1 also protects Wisconsinites’ equal-protection rights, which include the right of similarly situated individuals to be treated similarly. Those who wish to sell safe home-baked goods are similarly situated to those who are already selling homemade popcorn, honey, maple syrup, sorghum syrup, cider and canned goods. In fact, not potentially hazardous baked goods are just as safe, or safer than, these other foods. If a commercial license and commercial-grade kitchen are not required to sell these other goods, then they should not be required to sell safe baked goods either.

The home-baked-good ban does not exist for genuine safety reasons, but instead protects entrenched special-interest groups from competition. Courts have held that economic protectionism is not a legitimate government interest.

The home-baked-ban is thus unconstitutional.