Marketplace Commentary

Three insurgent bakers are challenging the laws of the State of Wisconsin

You might want to think twice about selling those home-baked cookies

Everybody knows the old saying, "You can take the bakers out of the kitchen, but you can't put them at the farmer's market."

You've never heard it? Well, you must be living in a cave somewhere.

But currently winding its way through courts in Wisconsin is an attempt to give home bakers the same rights as companies like General Mills, the giant maker of all kinds of sweet things.

Here's the deal.

Wisconsin's Department of Agriculture and Consumer Protection has a law on the books that says if you make cupcakes or cookies or brownies or the like and want to sell them at your local farmer's market or your kid's lemonade stand in your front yard, you are a lawbreaker.

Forget for a moment that, according to Bill Cosh, the spokesman for DACP, nobody has ever been cited, arrested, fined or sent to jail for a violation of this law.

But because the law is the law, a trio of home bakers, aided and abetted by the Institute for Justice, a public interest law firm located just outside our nation's capital, has filed a suit and declared it unconstitutional. The institute also prepared the video at the top of this article.

To be sure, there are divided opinions about whether the founding fathers were hot and/or bothered about bakers selling bread they baked at home.

On one side we have three Wisconsin women: Dela Lands, who owns a small organic farm called Scotch hill in Green County; Lisa Kivirist, who owns and runs a small farm, as well as a bed and breakfast called Inn Serendipity in Green County, and was quoted in one article as saying "our spatulas are tied"; and Kriss Marion, who is the founder of her local farmer's market in Blanchardville and owns a farm and B&B called Circle M Market Farm in Lafayette County.

On the other side of the issue are the Wisconsin Bakers Association (WBA), the Wisconsin Grocers Association (WGA) and the Wisconsin Restaurant Association (WRA), which have more presence as lobbyists in Madison than do the three women.

The lawyer for the plaintiffs is Erica Smith; the spokesman for the WBA is Dave Schmidt, who is the organization's president.

Smith, on the phone, is fiery on this issue.

"We are looking for injunction and declarative relief," she said. The suit claims the law is unconstitutional because it violates the Due Process and Equal Protection clause.

"It doesn't make sense to impose the same rules on a Hostess factory as a home baker," Smith said. "All we're talking about is people using their home kitchens and their home ovens to make a small amount of goods and sell them to their community."

Schmidt, at first, said he had no comment, but like bread rising out of the pan, he later responded to the explosion of yeast in my questions.

"A home baker could get someone really sick," he said. "Suppose someone made peanut butter cookies at home, and then didn't totally clean their counter and made chocolate chip cookies. If they sold those chocolate chip cookies at a farmers market they could make someone sick. Or they could pass away. That's why we need this protection."

I asked Schmidt if he ever heard of anyone dying from that particular set of circumstances, or even getting sick. He said there was one death in the last century of someone who ate something, but he didn't remember exactly what it was.

"Everyone thinks this is a joke," Schmidt said, indicating that bakers know a lot more than we give them credit for. "But it's not. It's vital to our food safety."

Brandon Scholz is a lobbyist in Madison, but he double dips as the President and CEO of the WGA. (Remember which one that is?)

"It's not about muffins and it's not about competition; it's about public health," he said. "We don't want to have anybody get sick."

For yet another example of the possible horrors that could be wrought by the baking of pastries, granola, meat jerky and even popcorn, we turn to Pete Hanson, a member of the WGA (all these abbreviations are starting to make my head hurt).

"The concept of baking cookies at home and selling them at the farmer's market is a lovely idea until you think about the cat that jumped from the little box up on the counter and walked around before those cookies were put on the counter to cool," Hanson said. "If you are in a licensed bakery or food service establishment, there are controls in place to prevent dirty hands, dirty paws, rodents and things like that from infecting those surfaces with germs, parasites, all sorts of things.

Among the well-known bakeries in Milwaukee supporting the present law are Classy Girl Cupcakes, Kangaroo (they make the ubiquitous pita bread), Wild Flower, Milwaukee Area Technical College (where they teach people to bake), the Miller Baking Company (maker of the best Jewish rye bread in the entire world) and the fantastic and lauded Cranky Al's.

Let's take a look at legislation to change this law.

In 2014 the State Senate passed the bill unanimously; the Assembly killed it. State Rep. Robin Vos, the Speaker of the Assembly, led the fight to kill it. In 2016 the Senate again passed it unanimously. This time Vos just shipped the bill off to some committee where it languished, never even getting a hearing.

Vos, by the way, is the owner of Rojo's Popcorn in Burlington, which sells popcorn, nachos, cotton candy, snow cones and pretzels, as well as the equipment to make them.

Voss did not respond to telephone and email requests about why he opposed these measures. His spokesperson also did not respond to telephone and email requests, which perhaps raises the question of what a spokesperson for the speaker is supposed to speak about.

It should also be pointed out that it seems like bakers are the only ones feeling the heat here. It's okay to prepare in your home and sell pickles, salsa, applesauce, jams and jellies, chutneys, marmalades, fruit butters and more.

The case is scheduled for a conference in a couple of weeks and there is hope on the part of the plaintiffs that a judge can wrangle some kind of settlement here.

I don't want to editorialize too much here, but now that we've reached the end of this story, let me just say, thank goodness for our government and legal system.


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