Wisconsin Appellate Court Reverses ‘Unconstitutional’ Finding of State Retail Food Establishment Laws for ‘Unbaked, Not Potentially Hazardous’ Foods

On November 19, 2024, the Wisconsin Court of Appeals for District I (Milwaukee) issued a decision reversing and lifting the injunction issued by the lower circuit court’s order, which had found the state’s retail food establishment laws unconstitutional as applied to sellers of “unbaked, not potentially hazardous, homemade foods” “such as chocolates, fudges, fried squash fritters, candies, dried herbs and roasted coffee beans.” Wisconsin Cottage Food Association v. WI Department of Agriculture, Trade and Consumer Protection, No. 2023AP000367 (PDF docket); Wisconsin Cottage Food Association v. WI Department of Agriculture, Trade and Consumer Protection, No. 2021CV000013 (PDF docket) (Lafayette Co. Cir.).

The plaintiff cottage foods association members argued that “there is no rational reason for treating . . . sellers of [such] unbaked . . . foods different from” sellers exempted under the law. The court determined that such exempt sellers were either “exempted because of the type of food they sell—e.g., popcorn, honey, sorghum syrup, or maple syrup,” or “because of the purpose and quantity of their food sales—e.g., nonprofit and charitable organizations,” and found that sellers of unbaked, not potentially hazardous, homemade foods were distinct from the exempt classes and subject to the “generally applicable law” because they “are able to produce a variety of foods for sale to consumers in whatever quantities they choose.”

The Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP), however, declined to appeal a separate Lafayette County Circuit case, decided in 2017, which had enjoined the state from enforcing the law against sellers of “not potentially hazardous,” “homemade, shelf-stable foods that have been baked in an oven.” Kivirist v. WI WI Department of Agriculture, Trade and Consumer Protection, No. 2016CV000006 (PDF docket) (See also the final order and supplemental decision).

On December 19, 2024, the plaintiff cottage foods association filed a petition for review with the Wisconsin Supreme Court, to which the DACTP and the Wisconsin Supreme Court have yet to respond. Wisconsin’s DATCP is currently maintaining its Licenses and Homemade Baked Goods webpage according to the court orders.

For more on homemade foods, see materials and resources from Understanding the Basics of PA Food Establishments & Cottage Food Regulations.

Author: 
Audry Thompson, Staff Attorney