Wisconsin Cottage Food Law

Constitutional challenge brought by Wisconsin home bakers (Kivirist, Marion, Ends) with representation from the Institute for Justice. Judge Duane Jorgenson held that as applied to home bakers of not-potentially-hazardous baked goods, DATCP's enforcement of the retail-food-establishment license requirement at Wis. Stat. § 97.30 violated due process and equal protection under the Wisconsin Constitution. The remedy was a permanent injunction against DATCP enforcement against that class of producer — not a statutory amendment. The statute remains on the books; DATCP is enjoined from enforcing it. Per current DATCP guidance, the protection covers items exposed to dry heat above 140°F in an oven or comparable enclosed chamber (dehydrator items explicitly excluded). No cap, no permit, no fee, no inspection, no registration, no food handler certificate, no annual renewal.

Statutory exemption from the retail-food-establishment license requirement for home-canned acidified foods with an equilibrium pH of 4.6 or lower. Sales capped at $5,000 per year per person. Permitted products: 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. Sales may occur only at community or social events, flea markets, or farmers markets in Wisconsin — not from home, not online, not by mail, not wholesale, not interstate. The seller must display a point-of-sale sign and a label disclaimer. pH testing of the finished product is recommended.

The "Cottage Foods II" case. Filed February 2021 to extend Lasee logic to all non-potentially-hazardous shelf-stable foods (chocolates, candies, fudge, roasted coffee, dried pasta, granola, popcorn, freeze-dried items, cocoa bombs, marshmallows, Rice Krispie treats). Lafayette County Circuit Court ruled for plaintiffs on December 28, 2022. Wisconsin Court of Appeals stayed the order in May 2023 pending appeal. Court of Appeals issued its decision on November 19, 2024 reversing the Circuit Court order in full. Plaintiffs petitioned the Wisconsin Supreme Court for review on December 19, 2024; the Supreme Court declined to grant review. Net effect: as of November 19, 2024, only the original Lasee category — oven-baked not-potentially-hazardous baked goods — is protected. Every other category briefly authorized between December 2022 and May 2023 is once again unlawful to sell from home and requires a commercial retail food establishment license under Wis. Stat. § 97.30.

Legislation authored by Senator Eric Wimberger (R-Oconto) and a group of northern Wisconsin co-sponsors that would consolidate the dual Lasee/Pickle Bill framework into a single statutory cottage food program. Two-tier structure: producers under $10,000 in gross sales operate under a lighter "small producer" tier; producers between $10,000 and $40,000 face mandatory DATCP registration, a registration number printed on every product label, a food preparation certificate, liability insurance, and a DATCP home kitchen inspection. The $40,000 ceiling would replace the current uncapped Lasee regime; the bill would extend cottage food eligibility to chocolates, candies, fudge, and other categories the Cottage Foods II case sought to legalize. Strongly opposed by home bakers and the Wisconsin Cottage Food Association, who note Minnesota allows up to ~$78,000 under MDA Tier 2 and Iowa has no cap for direct-to-consumer sales. Status uncertain; previous Wisconsin cottage food legislation (SB 271 in 2023) failed.

Is there a revenue cap on Wisconsin cottage food sales?

It depends on what you sell. Not-potentially-hazardous baked goods have no statutory revenue cap because the right to sell them from home is court-created under Lasee v. DATCP (Lafayette County Circuit Court, May 31, 2017) rather than statutory — the court enjoined DATCP from enforcing the retail-food-establishment license requirement against home bakers of non-hazardous baked goods, and the order does not specify a sales ceiling. Home-canned acidified foods are capped at $5,000 per year per person under Wis. Stat. § 97.29(2)(b)2g — the so-called "Pickle Bill" enacted by 2009 Wisconsin Act 101. Two products, two different caps, two different legal authorities. The 2026 legislative push (Wimberger Senate bill) would impose a unified $40,000 cap if it passes.

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

Any "not potentially hazardous" baked good that has been exposed to dry heat at temperatures exceeding 140°F in an oven or similar enclosed chamber. Per current DATCP home-baker guidance, the finished, ready-for-sale product must not be potentially hazardous (no cream fillings, no custard, no perishable frostings, no fresh-meat fillings). Permitted: breads, rolls, biscuits, muffins, scones, sweet breads, unfilled donuts, cookies, brownies, cupcakes, layer cakes with shelf-stable buttercream or royal icing, wedding cakes with shelf-stable frosting, tortillas, churros, fruit pies with shelf-stable fillings, empanadas with non-perishable fillings, tamales when produced as a shelf-stable baked product. DATCP guidance explicitly excludes dehydrator products from the framework because the heat source is not an oven.

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

No. The December 28, 2022 Lafayette County Circuit Court order in Wisconsin Cottage Food Association v. DATCP (the "Cottage Foods II" case) had briefly extended Lasee to all not-potentially-hazardous shelf-stable foods — chocolates, candies, fudge, roasted coffee beans, dried pasta, granola, popcorn, dipped chocolates, freeze-dried items, Rice Krispie treats. The Wisconsin Court of Appeals reversed that order on November 19, 2024 (Appeal No. 2023AP367), and the Wisconsin Supreme Court declined to review the reversal. The practical effect is that as of November 19, 2024, only oven-baked non-hazardous baked goods are protected under the Lasee framework — every other category of homemade shelf-stable food that briefly became legal under the 2022 Circuit Court order is once again unlawful to sell from home. Many third-party state-law summaries still describe Wisconsin as if the 2022 expansion is 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)2g, exempts home-canned acidified and naturally acidic foods with an equilibrium pH of 4.6 or lower from the retail food establishment license requirement. Allowed: 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: any product with pH > 4.6, fish, meat, pickled eggs, lemon curd, pesto, and dressings. Sales are capped at $5,000 per year per person, must occur only at community or social events, flea markets, or farmers markets in Wisconsin (not from home, not online, not by mail, not wholesale, not interstate), and the producer must display a point-of-sale sign and a label disclaimer.

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. The current Lasee framework is the lightest-touch baked-goods regime of any populous US state because the right was created by court injunction against DATCP enforcement rather than by statute — there is no agency program to register with. The 2026 Wimberger Senate bill would change this by requiring DATCP registration, a registration number printed on every product label, a food preparation certificate, liability insurance, and a home inspection for any producer above $10,000 in gross sales.

What does a Wisconsin cottage food label have to include?

Baked goods (Lasee framework): no statutory label requirement, because the right is court-created and the order does not impose label content. Listing ingredients, allergens, the producer name, and a "made in a home kitchen" statement is recommended best practice. Pickle Bill products: the label must list all ingredients in descending order of prominence (including the common name for any of the federally listed nine allergens), the canning date, the preparer name and address, and the verbatim statutory disclaimer "This product was made in a private home not subject to state licensing or inspection." A sign at the point of sale must also state "These canned goods are homemade and not subject to state inspection." Both pieces of language are regulatory and may not be paraphrased.