Wisconsin Cottage Food Law

Constitutional challenge brought by Wisconsin home bakers Lisa Kivirist, Kriss Marion, and Dela Ends. Applying rational basis review, the circuit court held that food licensing laws, as applied to home bakers of not-potentially-hazardous baked goods, violated substantive due process and equal protection, and enjoined DATCP from enforcing them. The original order covered the named plaintiffs; September and October 2017 orders extended it to others selling nonhazardous, shelf-stable baked goods where the bakers are of "good character" and kitchen hygiene is not in question. DATCP did not appeal. Per current DATCP guidance, the orders apply only to baked goods that are not potentially hazardous — generally exposed to dry heat above 140°F in a closed chamber such as an oven; items dried in a dehydrator are not baked goods — sold directly to consumers. No cap, no permit, no fee, no inspection, no registration, no food handler certificate, no annual renewal. The misbranding law (Wis. Stat. §§ 97.03, 97.10) still applies to packaged goods.

Statutory exemption from the food processing plant license for "pickles or other processed vegetables or fruits with an equilibrium pH value of 4.6 or lower" that the seller prepares and cans at home in Wisconsin. The seller must receive less than $5,000 a year from these sales. Permitted products per DATCP: pickled fruits and vegetables (not refrigerator pickles), salsas, chutneys, sauerkraut, kimchi, fruit-based jams and jellies, and canned fruits. Excluded: anything with pH > 4.6, fish, meat, pickled eggs, lemon curd, pesto, and dressings. The statute allows sales only at a community or social event or a farmers' market in Wisconsin; DATCP guidance also lists flea markets and rules out sales from home, wholesale, on consignment, via the internet, out of state, and alongside licensed foods. The seller must display the statutory point-of-sale sign and label each container with the statutory statement. DATCP strongly recommends pH testing the finished product.

The "Cottage Foods II" case (Lafayette County Case No. 2021CV13). Sought to extend the baked-goods ruling to unbaked, not-potentially-hazardous homemade foods — the Court of Appeals opinion cites fudges, candies, energy bars, roasted coffee beans, and dried soup mixes, and the Legislative Council cites chocolates and rice cereal treats. Lafayette County Circuit Court ruled for plaintiffs on December 28, 2022. The Court of Appeals stayed the order on May 30, 2023, and on November 19, 2024 (2024 WI App 69) reversed it, holding the licensing laws constitutional as applied to unbaked goods. The Wisconsin Supreme Court denied review. Net effect: only the Kivirist category — not-potentially-hazardous baked goods — is protected by court order; unbaked homemade foods need a license unless a statute exempts them.

Introduced December 2025 by Senators Wimberger and Feyen (SB 739) and Representative Swearingen and others (AB 748). Per the Legislative Reference Bureau analysis, the bill would have created a licensing exemption for home-prepared nonpotentially hazardous foods alongside the Pickle Bill, with both requiring DATCP registration (registration number on the label), sales directly to consumers at the producer's business address, by delivery, or at a community or social event or farmers' market, liability insurance, and total annual gross sales under $40,000. Producers under $10,000 would have posted a point-of-sale sign; producers from $10,000 to under $40,000 would have needed someone holding a DATCP certificate of food protection practices and, for nonpotentially hazardous foods, a DATCP home inspection. Opposed by home bakers and the Wisconsin Cottage Food Association. Both bills failed to pass pursuant to Senate Joint Resolution 1 on March 23, 2026; current law is unchanged.

Is there a revenue cap on Wisconsin cottage food sales?

It depends on what you sell. Not-potentially-hazardous baked goods have no dollar cap because the right to sell them from home is court-created under Kivirist v. DATCP (Lafayette County Circuit Court Case No. 2016CV6, May 31, 2017) rather than statutory — the court enjoined DATCP from enforcing food licensing requirements against home bakers of non-hazardous baked goods. Home-canned pickles and other acidified fruits and vegetables qualify for the Pickle Bill exemption only while the seller receives less than $5,000 a year from them (Wis. Stat. § 97.29(2)(b)2.c.). A 2025–2026 bill (SB 739 / AB 748) would have imposed a unified $40,000 cap, but it failed to pass on March 23, 2026.

What baked goods can I sell from home in Wisconsin without a license?

Baked goods that are "not potentially hazardous." Per current DATCP home-baker guidance, baked goods are generally exposed to dry heat, transferred via air, at a temperature above 140°F, in a closed chamber such as an oven; some items made in a waffle maker or Dutch oven count, and items dried in a dehydrator do not. The finished, ready-for-sale product must not be potentially hazardous (no cream or custard fillings, no perishable frostings, no meat fillings). Typical qualifying products are oven-baked breads, rolls, biscuits, muffins, scones, cookies, brownies, bars, cakes and cupcakes with shelf-stable frosting, and fruit pies with shelf-stable fillings. Fried or griddle-cooked items (fried donuts, churros, tortillas) do not fit DATCP's dry-heat description — confirm with DATCP before selling them.

Can I sell chocolates, candies, fudge, or roasted coffee from home in Wisconsin?

Not without a license. The December 28, 2022 Lafayette County Circuit Court order in Wisconsin Cottage Food Association v. DATCP (the "Cottage Foods II" case) had extended the baked-goods ruling to unbaked, not-potentially-hazardous homemade foods such as chocolates, fudges, candies, rice cereal treats, energy bars, and roasted coffee beans. The Wisconsin Court of Appeals stayed that order on May 30, 2023 and reversed it on November 19, 2024 (2024 WI App 69, Appeal No. 2023AP367), and the Wisconsin Supreme Court denied review. Only non-hazardous baked goods are protected under the Kivirist orders; unbaked homemade foods need a license unless a statute exempts them (for example, the Pickle Bill or the popcorn exemption in Wis. Stat. § 97.30(2)(b)1.d.). Some third-party summaries still describe the 2022 expansion as if it were in effect; it is not.

What is the Pickle Bill and what foods does it cover?

2009 Wisconsin Act 101, codified at Wis. Stat. § 97.29(2)(b)2., lets a person sell at retail, without a food processing plant license, pickles or other processed vegetables or fruits with an equilibrium pH of 4.6 or lower that the person prepares and cans at home in Wisconsin. Per DATCP, allowed products include pickled fruits and vegetables (not refrigerator pickles), salsas, chutneys, sauerkraut, kimchi, fruit-based jams and jellies, and canned cherries, peaches, applesauce, and other fruits; excluded are products with pH > 4.6, fish, meat, pickled eggs, lemon curd, pesto, and dressings. The seller must receive less than $5,000 a year from these sales. The statute allows sales only at a community or social event or a farmers' market in Wisconsin; DATCP guidance also lists flea markets and rules out sales from home, wholesale, on consignment, via the internet, out of state, or alongside licensed foods. The seller must display the statutory sign and put the statutory statement on every label.

Do I need to register with DATCP or pay a fee to sell home-baked goods in Wisconsin?

No registration. No fee. No permit. No kitchen inspection. No food handler certificate. No annual renewal. Because the right was created by court injunction against DATCP enforcement rather than by statute, there is no agency program to register with. The 2025–2026 bill (SB 739 / AB 748) would have required DATCP registration, a registration number on every label, liability insurance, and — for producers with $10,000 to $40,000 in sales — a DATCP food protection practices certificate holder and a home inspection. It failed to pass on March 23, 2026, so none of those requirements apply.

What does a Wisconsin cottage food label have to include?

Baked goods (Kivirist framework): the court orders lifted licensing, not labeling. Wisconsin prohibits selling misbranded food (Wis. Stat. § 97.10) and defines misbranding by 21 U.S.C. 343 (Wis. Stat. § 97.03), so packaged baked goods need the common name of the food, the name and place of business of the maker, an accurate net quantity, an ingredient list, and the major food allergens. No home-kitchen disclaimer is required. Pickle Bill products: each container must carry the name and address of the person who prepared and canned the food, the canning date, the ingredients in descending order of prominence (with the common name of any ingredient from milk, eggs, fish, crustacean shellfish, tree nuts, wheat, peanuts, or soybeans; DATCP adds sesame), and the verbatim statutory statement "This product was made in a private home not subject to state licensing or inspection." A sign at the place of sale must state "These canned goods are homemade and not subject to state inspection." Both statements are set by statute — use them word for word.