Wisconsin has some of the most restrictive homemade food-selling laws. A group is trying to change that

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 Jobea Murray was eager to bring her home baking business with her when she moved from Colorado to Milwaukee in 2016. But she learned she couldn’t legally.

At the time, if she had sold her homemade smash cakes — cakes made for babies to smash on their first birthday — in Wisconsin, Murray would have been breaking one of the state’s complicated cottage food laws.

While the laws have changed and now allow Murray and home bakers across Wisconsin to sell some of their products from home, what’s allowed and what isn’t allowed remains arbitrary.  

But there’s a group that’s pushing for change.

The Wisconsin Cottage Food Association, along with nonprofit law firm Institute for Justice, wants the state Supreme Court to overturn a statewide ban on homemade foods that aren’t baked, like Rice Krispies Treats, fudge, roasted coffee beans and other dried goods.

“We’re representing thousands of people in Wisconsin who just want to support themselves by selling homemade food,” said Justin Pearson, an Institute for Justice attorney. “If they lived anywhere else but Wisconsin, they would be able to do so. But unfortunately, they live in the state with the most restrictive cottage food laws in the country.”

Before 2017, bakers like Murray couldn’t legally sell their products from home and were required to invest in startup costs that a commercial kitchen or shared kitchen would require. In 2017, Lafayette County Circuit Judge Duane Jorgenson ruled the statewide ban on selling home-baked goods was unconstitutional.

The ruling was a win for Wisconsin’s home-baking community. It allowed entrepreneurs to sell items that were defined as “non-hazardous” without the expense of a commercial kitchen.

Wisconsin law considers non-hazardous foods as food that can safely remain unrefrigerated without supporting the rapid growth of bacteria.

For example, a cupcake might be considered non-hazardous unless it contains vegetable inclusions or a frosting that would have to be refrigerated.  But the ruling didn’t include shelf-stable foods like chocolates, candies and other dried goods — essentially, items that don’t require baking or reaching a certain temperature.

“Things like that are really important, especially for rural communities and urban and suburban areas as well, is to give people the ability to make their own financial decisions and to be financially independent,” Murray said.

In 2021, homemade food sellers, with the Institute for Justice’s help, launched a lawsuit that hoped to change that. In December 2022, a Dane County judge agreed with the group.

But in 2023, the Wisconsin Department of Agriculture, Trade and Consumer Protection filed an appeal and an appellate court overturned the decision, allowing the ban to remain.

Violating the law is considered a misdemeanor that can carry a penalty of up to six months in jail and up to $1,000 in fines. Additional offenses carry a penalty of up to one more year in jail per offense and up to $5,000 more in fines per offense. 

That would have been too steep of a price for Murray to pay when she moved to Milwaukee. But investing in startup costs wasn’t realistic for her at the time, either.

Murray had gone to pastry school about six months after having her daughter and started her business by making cakes for kids’ birthday parties.

After the 2017 ruling allowed Murray to sell baked items, she took the time to re-establish.

While she’s eager she can continue to provide for her family through her home business, Murray said she feels for people who want to explore other areas of the homemade food-selling world but can’t do so.

“It really stifles creativity in the pastry and baking industry,” she said, “by not allowing people to test out markets or find their niche without investing hundreds of thousands of dollars in a commercial kitchen.”