Ellie Boehm, a teenager, is joining a lawsuit against the Wisconsin Department of Agriculture after she was told her home baking business is illegal.
Remember the good old days when kids could operate lemonade stands and such without hassle? Unfortunately, those days appear to be ancient history, as one Sussex teen is finding out. While Ellie Boehm doesn’t operate a lemonade stand, she does have a small home business where she bakes and sells macarons. After being told that her business is illegal, Boehm recently announced she will be joining a lawsuit with “dozens of other Wisconsin home food producers against the state Department of Agriculture, Trade and Consumer Protection.”
In addition to being told her small business is illegal, Boehm also received a letter from Jessica Hoover, the executive director of the Wisconsin Bakers Association, claiming that “some of the ingredients Ellie uses are potentially hazardous.”
The lawsuit Boehm is joining was filed back on February 10 in Lafayette County Circuit Court and concerns “how DATPC interprets a 2017 circuit court ruling in that county that home bakers are free to sell their products as long as they can remain unrefrigerated.” At the moment, there are about 300 plaintiffs in the lawsuit, including the Wisconsin Cottage Food Association.
When commenting on the matter, Ellie’s mother, Colleen, said:
“I think it is crucial that people can do these home businesses, especially now with COVID, and if people have a loss of income.”
The suit alleges the “DATCP has banned sales of homemade chocolates, fudges, candies, granola, doughnuts, and roasted coffee beans.” Additionally, the suit notes products like these “are considered shelf-stable — food that can be unrefrigerated — and should be legal for home food producers to sell.” It added that these products are allowed to be sold by home businesses in other states.
When asked about the lawsuit and email Ellie received, Hoover said “some of the ingredients Ellie uses — such as heavy cream and eggnog — are hazardous, as they cannot safely remain unrefrigerated.” She added, “If you produce potentially hazardous baked goods, you must obtain a license to operate your business.”
Attorney Suranhan Sen disagrees. Sen is representing the plaintiffs and is with the Institute for Justice, a Virginia-based national nonprofit. He said:
“The 2017 lawsuit allows for the direct-to-consumer sale of any homemade baked good that is shelf-stable. That would include macarons — a homemade baked good — so long as the macaron is shelf-stable…Although some ingredients/foods are categorically shelf-stable and some categorically need refrigeration, some are borderline, depending on factors like ratios and preparation methods.
“A food including buttercream, for example, might need refrigeration or it might not. That’s why cottage foods producers making certain foods might pay to have their products tested in a laboratory, which can tell them definitively whether their food is shelf-stable or how they might prepare it differently to make it shelf-stable.”
“If someone wants to sell foods to informed consumers, and people would like to buy it for their own consumption, they should never be required to seek governmental permission first. But if getting that ‘permission’ — a license — was a reasonable and easy process, it wouldn’t be as much of an issue.”
In Wisconsin, the cost of renting a commercial kitchen each month is about $1,000. Obtaining a commercial food license is even more costly because it requires a business-grade kitchen, which can cost anywhere from $40,000 to $80,000.