MADISON — Home bakers who want to sell their goods to the public were dealt a setback Tuesday, Nov. 19 when a state appeals court overturned a lower court ruling, which found that the state’s food code for retail businesses didn’t apply to them. 

The District I Court of Appeals opinion overruled Circuit Judge Rhonda Lanford’s ruling, which found that the state’s food code was an unconstitutional violation of the equal protection and due process clauses. The ruling prohibited the Department of Agriculture Trade and Consumer Protection (DATCP) from requiring sellers of homemade foods to obtain licenses and other requirements. 

The lawsuit was brought by Lisa Kivirist, a bed and breakfast operator in Browntown,  other similar sellers and the Wisconsin Cottage Food Association (WCFA). 

Kivirist joined the lawsuit after the COVID-19 pandemic closed the Inn Serendipity, which she operated with John Invanko. She received requests from friends and neighbors to buy her homemade fried fritters, candies, baking mixes, and dried pastas. While she could legally sell these foods to her B&B guests, she risked $1,000 fine and six months in jail if she sold them to the general public. 

Although there are many exceptions, the state’s food code generally treats those selling baked and “potentially hazardous foods” to the public for profit as “retail food establishments,” which are subject to inspections, requiring a commercial kitchen, licensing and permits. 

In 2017, Lafayette County Circuit Judge Duane Jorgenson agreed with Kivirist and the WCFA that the law didn’t apply to homemade food sellers and struck it down. 

When the state didn’t appeal the ruling, Kivirist and the other plaintiffs asked in 2021 that DATCP be held in contempt for violating the injunction. Jorgenson disagreed but clarified that his prior ruling applied to homemade, shelf-stable foods that have been baked in an oven. 

Kivirist and the WCFA followed up their initial suit with another, alleging that the retail food establishment laws violated their equal protection and due process rights because the foods they sold were safe or even safer than those sold under the many exemptions to the law. They also wanted unbaked goods added to the list of foods exempt from regulations. 

 Also, the law’s requirements were so burdensome to homemade food sellers that it effectively kept them out of the market. Finally, the suit alleged that the laws were motivated to keep homemade food sellers from competing with commercial businesses. 

The WCFA wanted Wisconsin law to allow what homemade food sellers enjoy in 48 other states. 

DTACP countered, contending that the laws are in place to protect consumer health and safety and the public’s confidence in the food they bought. 

Dane County Circuit Judge Rhonda Lanford presided over the case, after being substituted for Jorgenson. 

The judge found that there was no rational basis for treating the homemade food sellers differently and ruled that DTACP couldn’t enforce the regulations against them. 

The state appealed and before ruling, the District I Court stayed the injunction prohibiting DTCAP from enforcing the regulations.  

In Tuesday’s ruling, the appeals court concluded that there was a rational basis for the food establishment laws, making them constitutional and permitting DTACP to enforce them. 

The court noted that the legislature considered but didn’t exempt sellers of unbaked, not potentially hazardous homemade goods from the retail food establishment laws. Thus, the WCFA wanted the court to do what the legislature decided not to enact. 

Also, exemptions have been made for sellers of maple syrup, popcorn and honey because they are non-profit and have limited food sales, according to the 19-page opinion. 

“As we previously established, the legislature drew a line, and there is a rational reason for where the legislature drew that line based on the foods sold and quantities of those foods sold,” Judge Pedro Colon wrote. 

Tuesday’s opinion returned the case to Lanford to dismiss the suit. 

Kivirist, the WCFA, its attorneys and the attorney general’s office were unavailable for immediate comment Nov. 19.