DARLINGTON – Several bakers were in court on Thursday, April 27 to hear a case between the Wisconsin Department of Agriculture and three local bakers, asking to allow the sale of baked goods without a commercial license.
Erica Smith, attorney for the plaintiffs Lisa Kivirist, Kriss Marion and Dela Ends, were mothers, farmers and talented bakers looking to sell home baked cookies to their communities. If they were to sell cookies without a license or commercial kitchen they could face fines and six months in jail. Selling home baked goods is legal in 48 other states, except New Jersey. There is also no evidence that shows someone becoming sick from eating a cookie from a home kitchen. She also stated that other homemade foods that are exempt from these restrictions do pose hazards.
For the prosecution, Assistant Attorney General Gabe Johnson-Karp, did not dispute that the plaintiffs were excellent bakers or their kitchens were not clean, as Kivirist and Marion both run Bed & Breakfasts on their farms in Browntown and Blanchardville respectively, but stated that regulations don’t just apply to clean kitchens and diligent bakers. Regulations apply to those who may not work in sanitary situations and stated that regulations need to accommodate a more ideal example than what the plaintiffs have. Those are decisions that need to be made by the legislature that can weigh the benefits of legislative fact finding. The decision, whether someone can make food in a house versus a factory, is not a constitutional question appropriate for that court. He said instead of creating another exemption, they want to keep requiring licensing.
Judge Duane Jorgenson asked if the purpose for the defenses argument is safety then what prevents a B&B from feeding their guests bread then selling the extra loaves at the local farmers market.
Johnson-Karp stated there are separate regulations for B&Bs than people who just make baked goods in their home and are not B&Bs.
Smith argued that the law is still in place because of lobbying efforts by commercial bakers. She commented that if the legislature is concerned, they are free to pass new regulations that are related to safety but these regulations are not.
The prosecution rebutted that it was not proper for the court to create exemptions, and then have the legislature work with the plaintiffs to produce a different way to regulate the baked goods. The legislature has already crafted a way to regulate them safely and don’t need to do it differently.
Jorgenson inquired if the cream puffs made at the State Fair could be sold because of the product exemption they have for being a non-profit organization.
Johnson-Karp said that was correct. He added that there is a clear distinction in regulations between for-profit and non-profit organizations. Johnson-Karp stated that the plaintiffs have said that in general baked goods are safe but other foods that have exemptions, like pickles, can be unsafe. The prosecution argued that baked goods could have allergens.
Jorgenson asked if there were any reports of people becoming sick from any baked goods. The defense stated that there were no reports but that didn’t mean that there couldn’t have been instances.
Johnson-Karp closed with stating that the legislature has a broad amount of food that is exempt but none are similar to cookies or muffins. Vegetables, maple syrup and honey are not processed like baked goods.
Smith ended with the defense again couldn’t find any instances of someone getting sick from allergens in baked goods and if it were a concern, they would just require labeling of the product.
The court will hear an oral ruling from Judge Jorgenson on May 31.