State files new challenges in the home-bakers lawsuit

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Creative Commons/Neil Conway

The state of Wisconsin is continuing its push to limit the sale of home-baked goods.

This much hasn’t changed: A judge’s ruling that home bakers can sell their products without obtaining a license or using a commercial kitchen stands, and the deadline for the state to appeal that decision has passed.

“We’re not appealing,” said Bill Cosh, communications director for the Department of Agriculture, Trade and Consumer Protection (DATCP). “We’re simply asking for clarification for the judge’s ruling.”

That “clarification,” however, could re-open the door for appeals in the lawsuit.

“DATCP has had long enough to figure this out since we won this case, and they are not being fair to Wisconsinites,” said Erica Smith, who represented the three women — Lisa Kivirist, Kriss Marion and Dela Ends — who filed the lawsuit.

Wisconsin home bakers have long been banned from selling products made in their own homes without a license and commercial kitchen.

The three women filed a lawsuit against DATCP after repeated attempts to get the Legislature to overturn the ban failed.

Last May, Lafayette County Judge Duane Jorgenson agreed that the ban was unconstitutional, and clarified in October that all home bakers — not just the three plaintiffs — were allowed to sell their goods.

There isn’t a cap on how much home bakers can sell, but there are restrictions on the sale of home-baked products.

Among those:  Only “non-potentially hazardous” baked goods can be sold. Based on language elsewhere in Wisconsin law, that’s been understood to mean products that don’t have to be refrigerated.

When the state didn’t appeal Jorgenson’s ruling by the Nov. 13 deadline, that could have been the end of the lawsuit.

UPDATED list of home bakers near you. https://wp.me/p4uA2t-9x

DATCP now, however, has filed a “motion for clarification” asking the Court to define what it means by “non-hazardous” goods and also arguing that bakers should be limited to selling $5,000 worth of products each year.

A foot note to the state’s filing says this: “If this Court concludes that “low volume” does not encompass any dollar limit, or that the Court’s original orders were sufficiently clear such that clarification is not warranted, DATCP respectfully requests that the Court enter an amended final order on this limited issue, and construe DATCP’s current motion as requesting reconsideration on this separate issue.”

If the judge agrees to amend his final order, Smith said, that would “restart the clock” on the appeals process.

“I strongly anticipate that (Jorgenson) will reject any attempt to put a $5,000 cap, but I don’t know if he will do it in a way that will allow them to appeal,” she said.

Cosh referred questions about the amended-order request to the state’s Attorney General’s office. A spokesperson for the AG’s office did not respond to emailed questions Monday afternoon.

DATCP argues that home-baked goods should be treated like homemade canned goods, which are under a $5,000 annual sales cap per seller.

Smith argues that home-baked goods should be treated like homemade cider, honey, popcorn, maple syrup, sorghum syrup, eggs and produce, which don’t have a sales cap.

Before Jorgenson’s ruling, Wisconsin was one only two states (the other being New Jersey) that banned the sale of homemade goods, although some other states do have some restrictions.

“I feel like DATCP is a little disconnected from reality on this,” Smith said. “It’s perplexing.”

Smith said it’s likely, but not certain, that Jorgenson will announce his decision before Christmas.

The Legislature also can still to cap the sale of home-baked goods, although the state Senate and Assembly thus far have been unable to agree on the issue.

As a state senator, Sheila Harsdorf sponsored the bill to allow, but limit, the sale of home-baked goods.

Harsdorf was named the new DATCP secretary last month.

 

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