The Right to Bake in Wisconsin Leads to New Lawsuit Over the Definition of a Baked Good

Reader Contribution by Lisa Kivirist and Inn Serendipity
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Here’s some cookie jar, half-filled, great news despite the pandemic: The surge of new home-based food businesses. Whether as a result of being laid off or simply inspired into action to follow a long-standing dream of running their own food business from home, tens of thousands of people are taking advantage of their state’s cottage food law, launching an enterprise from their home kitchen by selling baked goods, canned items, candies and other non-hazardous, shelf-stable items.

Most state cottage food laws allow the sale of non-hazardous baked items, which, in the simplest of terms, means baked food products that do not require refrigeration and have a low water content. Many state-specific, cottage food laws also cover high acid canned items, like jams or pickles, and a host of other items.

For homesteaders like ourselves, the cottage food laws provide a way to diversify income, create baked goods made with organic ingredients, like pumpkin or zucchini, we grow ourselves, and simply expand what we are doing already, just now selling items to our community for profit. We produce a few more loaves of bread or jars of jam and bring those to a farmers’ market along with our fresh produce.

According to research of registered cottage food producers across the country by the Institute for Justice, these home-based food entrepreneurs skew female and value the flexibility and financial support offered by their businesses. They enjoy the opportunity their cottage food business gives them to be creative, while being their own boss. Given the current economic downturn due to the COVID-19 pandemic, such needs are further exemplified.

Cookie Crusaders Fight for Food Justice in Wisconsin

Not all states are enthusiastically open for business or supporting entrepreneurial upstarts.  Some states, like Wisconsin, are earning a reputation for discouraging new business development. Even before the pandemic, Wisconsin’s dairy industry in the Dairyland was in dire straits. Since the pandemic, the Wisconsin Department for Workforce Development (DWD) has been notoriously slow. The DWD has taken many, many months to actually issue payments on new unemployment claims, including those made under the Federally-funded Pandemic Unemployment Assistance program that covers gig workers and self-employed. It makes a bad situation even worse for those without work in the hospitality and other industries due to Covid-19. For many who operate agritourism operations like we do, we took a direct hit from the pandemic.

With the legislators failing to meet much in Wisconsin over the past year, many home bakers have joined together, once again, and turned to the judicial branch to help clarify and re-affirm the right in Wisconsin for the opportunity to earn an honest livelihood that just about every other state already champions. When I and two other farmers hit political barriers trying to get cottage food bakery legislation passed several years ago, we successfully sued the state over the right to sell home baked items — and won. Hundreds of new, legal home bakery upstarts have been popping up across Wisconsin since the Judge’s ruling in our favor in 2017.

Unfortunately, we’re still hitting push back from the state in regards to other non-hazardous products like candy, dried herbs and roasted coffee. In fact, the Wisconsin Department of Agriculture, Trade and Consumer Protection, or DATCP, has gone so far as to basically say that because some baked items don’t contain flour, they’re not baked goods. DATCP has told home bakers that it’s illegal to make gluten-free muffins, granola or meringues, because according to them, they’re not baked goods.

Forming the Wisconsin Cottage Food Association

So back to the judicial branch we went, to fight for our freedom to earn. I, along with six other Wisconsin residents and the newly formed Wisconsin Cottage Food Association, filed a new law suit and legal action with support from the Institute for Justice to allow for the sale of more homemade goods. Yes, it’s crazy that we have to sue for our right to earn an honest livelihood because our state’s leadership keeps creating barriers. However, our inspiring, cooperative cottage food business owners know we are stronger together, and that when the elected leadership fails us, we can turn to judicial action and grassroots democracy.

Support of each other remains the driving force behind this surge of new cottage food business since COVID-19, sharing ideas and information. In our new Wisconsin Cottage Food Association which we just formed to better organize across the state, over 50-percent of the members started their business in the last year. It exemplifies the need for increased opportunities for shared education and resources.

Home-based Food Entrepreneur Virtual National Conference

It comes as no surprise that a new Home-based Food Entrepreneur Virtual National Conference is scheduled for April 6 through 9, 2021, addressing this need. For the first time, there’s an opportunity to gather and learn from an all-star line-up of cottage food leaders, educators and successful entrepreneurs.

“Championing new food businesses and strengthening existing ones amplifies our local food economies and especially provides opportunities in our rural areas,” shares Jan Joannides, Executive Director of Renewing the Countryside, the non-profit organization hosting this virtual conference. Renewing the Countryside fosters sustainable, vibrant and equitable communities. “Whether you are an established cottage food business or just starting out, this gathering will provide the informational and inspirational boost to take your home-based food enterprise to the next level.”


Lisa Kivirist, with her husband,John D. Ivanko, a photographer anddrone pilot, have co-authoredRural Renaissance, Homemade for Sale, the award-winningECOpreneuringandFarmstead Chefcookbook along with operatingInn Serendipity B&Band Farm, completely powered by renewable energy. Kivirist also authoredSoil Sisters. As a writer, Kivirist contributes to Mother Earth News, most recently, Living with Renewable Energy Systems: Wind and Solarand9 Strategies for Self-Sufficient Living. They live on a farm in southwestern Wisconsin with their son Liam and millions of ladybugs. Read all of Lisa’s MOTHER EARTH NEWS posts here.


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