Wisconsin Cottage Food Court Rulings: Kivirist, the Association Lawsuit, and Failed Reform Bills

The Case That Started Home Baking in Wisconsin

Before 2017, selling a loaf of bread baked in your Wisconsin home kitchen was illegal without a commercial food license. That changed when Lisa Kivirist, an organic farmer and home baker in Lafayette County, challenged the state's ban in court.

In Kivirist v. DATCP (Lafayette County Case No. 2016CV06), Judge Duane Jorgenson ruled in May 2017 that the blanket prohibition on selling home-baked goods violated the Wisconsin Constitution. The court issued an injunction in October 2017 barring DATCP from enforcing commercial licensing requirements against home bakers who produce non-potentially hazardous, shelf-stable baked goods for direct-to-consumer sales.

A follow-up clarification in May 2021 broadened the ruling further. DATCP had tried to limit the exemption to products where flour or meal was the principal ingredient. The court rejected that reading, confirming the exemption covers any shelf-stable product baked in an oven above 140°F — macarons, granola, and other non-flour items included.

The result: no license, no registration, no annual cap on revenue, and no home inspections for oven-baked goods sold directly to Wisconsin consumers.

The Association Lawsuit: Pushing Beyond Baking

The Kivirist ruling left a significant gap. Home producers who made shelf-stable items that never went into an oven — chocolate bars, fudge, caramels, roasted coffee beans, dry baking mixes — still needed a full commercial food license. The Wisconsin Cottage Food Association (WCFA), backed by the Institute for Justice, filed a second lawsuit (Wisconsin Cottage Food Association v. DATCP) in February 2021 to extend the constitutional protections to all non-potentially hazardous, shelf-stable foods.

In December 2022, the Lafayette County Circuit Court ruled in their favor and temporarily blocked DATCP from enforcing licensing requirements on unbaked shelf-stable products. For a brief window, chocolatiers and confectioners operated legally from home kitchens.

DATCP appealed. In May 2023, the Court of Appeals placed the lower court's order on hold, putting home confectioners back in legal limbo.

On November 19, 2024, the Wisconsin Court of Appeals issued its final decision (2024 WI App 69), reversing the circuit court entirely. The appellate court held that the state's commercial licensing laws do not violate equal protection or due process when applied to unbaked foods. Making chocolate bars in your home kitchen was once again a misdemeanor.

The WCFA petitioned the Wisconsin Supreme Court for review. On April 10, 2025, the court denied the petition without comment, ending the legal challenge permanently. Unbaked shelf-stable foods remain outside every home-production exemption in Wisconsin.

Assembly Bill 748 and Senate Bill 739: The Reform That Failed

While the courts were closing the door on unbaked foods, the legislature attempted to open a new one. During the 2025–2026 session, two companion bills — Assembly Bill 748 and Senate Bill 739 — proposed creating Wisconsin's first comprehensive cottage food statute.

The bills would have established a two-tiered system:

• A $40,000 annual gross sales cap (compared to no cap under the Kivirist ruling and $5,000 under the Pickle Bill)
• Mandatory registration with DATCP
• Liability insurance requirements
• Home inspections for higher-volume producers
• Coverage expanded to include unbaked non-potentially hazardous foods

The proposals drew heavy opposition. The Wisconsin Farmers Union and home-baking advocates argued that requiring registration and inspections for businesses that had operated without them since 2017 amounted to new restrictions disguised as reform. Home bakers worried the $40,000 cap would limit their currently uncapped revenue. The WCFA argued the inspection and insurance mandates would price small operators out of the market.

Both bills officially failed to pass on March 23, 2026, pursuant to Senate Joint Resolution 1.

Where Things Stand After the Dust Settled

The failure of both legislative reform and judicial expansion locked Wisconsin into its existing patchwork:

• Oven-baked goods: uncapped, unregistered, no required home inspection, protected by the Kivirist injunction
• High-acid canned goods: $5,000 annual cap, farmers markets, flea markets, and community or social events only, governed by the Pickle Bill (Wis. Stat. § 97.29(2)(b)2)
• Unbaked shelf-stable foods: completely banned from home production after the 2024 appellate reversal and 2025 Supreme Court denial

The failed legislation left the current framework in effect, which means home producers need to work within these established channels rather than waiting for legislative rescue.

If you're building a home food business under these rules, our Wisconsin Cottage Food & Home Food Business Guide walks through the practical steps — product classification, labeling requirements, entity setup, and the commercial kitchen transition for products that don't qualify for the home exemptions.

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