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Judge determines bakers can sell homemade goods

POSTED June 8, 2017 10:04 a.m.

DARLINGTON – In the Lafayette County Courtroom on May 31, Judge Duane Jorgenson ruled in favor of three area women who filed a lawsuit in January 2016, asking to allow them to sell their homemade baked goods without a commercial license. Jorgenson ruled the Wisconsin law unconstitutional but the ruling only applies to the plaintiffs in the case.
Lisa Kivirist of Browntown, Dela Ends of Brodhead and Kriss Marion of Blanchardville, the women in this case, were delighted by the outcome but disappointed in the state.
“It seems all political and someone is putting pressure on [DATCP]. It has become a drawn out process and I am ashamed,” Marion stated after the ruling.
Wisconsin Assistant Attorney General Gabe Johnson-Karp asked for a stay on the motion stating that the plaintiffs will not face any harm by the stay but “DATCP and the public face the possibility of harm if their baked goods were to make someone sick.” Jorgenson did not grant the stay, reasoning that there is “no real risk to the general public”, but did accept a hearing to determine if a stay should be applied or not.
During the trial, Jorgenson went into detail about issues the plaintiffs brought up against the law. The purpose for the food code is the need to assure public safety. One issue was that the Wisconsin Statute was unfair in that the law was based as anticompetitive in nature and protects larger and more commercial food processors. Jorgenson quoted late Supreme Court Justice Thurgood Marshall, who stated, “The legislature has the right to adopt stupid laws.”
Jorgenson then reviewed a group that had a special exemption to the law which produced 400,000 cream puffs at the Wisconsin State Fair and the exemption is written for just the amount of days as the state fair is held. The exemption also allows them to make the cream puffs themselves, which according to an expert who gave his testimony during the deposition in January this year that by adding cream filling after the baking process the food could be potentially hazardous.
With Wisconsin and New Jersey being the only states that have law not allowing the selling of baked goods without a commercial license, Jorgenson researched to find the “significant evidence that shows the concern to have the state statute”. But there is no evidence that shows any issues of people becoming sick from eating baked goods or baked goods being connected to foodborne outbreaks.
Jorgenson stated that the plaintiffs are greatly burdened by the statute and there is no rational basis from exempting food processors but not exempting the plaintiffs. He affirmed that the food code is “unconstitutional under both Wisconsin and U.S. Constitution as it is applied to [the plaintiffs].” He added that is also had no rational or reasonable connection to the statutory purpose for the statutory scheme and it violated the Equal Protection Act.
“This will be super for start up,” Marion commented after the verdict. “Wisconsin ranks last in entrepreneurship and that shouldn’t be. This is going to help with so many Farm to Table opportunities.”

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