Courteney Wilds' cinnamon rolls and other treats were such a hit at dinner parties and her Woodbridge, N.J., church that she thought she might make a little extra money selling them.
But when the 50-year-old opera singer and marketing researcher took a closer look at New Jersey law governing small business, she couldn't believe it. An obscure provision meant selling her goodies could make her a criminal.
“I was in shock, I was really surprised,” she said. “You’d see people selling stuff at street fairs. I’m just looking to be a small business owner, an entrepreneur. I’ve lived here for 14 years and there’s only one main bakery. Is the law designed to protect them?”
Along with Wisconsin, New Jersey is one of only two states that still ban small-scale sales of home-baked goods outside the occasional church function and the like, according to the Institute for Justice, a libertarian organization seeking to overturn the laws. If small-scale bakers in those states don't spend tens of thousands of dollars to build or rent commercial kitchens, secure licenses and follow strict state regulations, they can face fines and even jail time for selling cookies, though anecdotal evidence suggests written and verbal warnings are more common.
It seems to matter little that there is widespread bipartisan support in both states to lift the unpopular regulations: Thus far a lone lawmaker in Madison and another in Trenton have beaten back efforts to eliminate them.
“I think what this comes down to is another example of businesses coming in and getting these burdensome laws in place to protect themselves from competition,” said Erica Smith, a lawyer for the Institute for Justice, which is seeking to overturn Wisconsin’s ban. “But there’s no question this is infringing on independent liberty.”
The laws in New Jersey and Wisconsin provide a window into the ways innumerable statutes and regulations passed in the name of protecting “the people” become obstacles protecting established businesses. These include state licensing boards that impose lengthy and expensive requirements on those who want to cut hair or fingernails; and "certificate of need" laws that give private concerns near veto power over local upstarts. The two state laws are also significant precisely because they are outliers – they illustrate how traditional political maneuvers can thwart even strong popular pressure to change.
A decade or two ago, most states had strict food-licensing and safety laws. But then came a great transformation in American gastronomy – reflected in buzzwords like "locavore," "artisanal" and "microbrew," and in the growing popularity of farmers markets. That, along with advances in food safety and preparation, led to popular pressure for reform through so-called “cottage food" legislation, which “reduces the barriers to entry for small-scale producers while recognizing the low-risk nature of these products," notes a 2013 report from the Harvard Food and Policy Clinic.
Traditionally, those barriers to entry were often rooted in a desire to limit competition.
“The fingerprints of crony capitalism are all over the opposition to cottage food laws,” said Baylen Linnekin, the author of “Biting the Hands That Feed Us,” a history of food regulation that runs from the slaughterhouses famously exposed by Upton Sinclair to the arcane rules still extant in places today.
Ironically, it was a loosening in Wisconsin’s cottage food laws that first brought the baked goods prohibition to the attention of Lisa Kivirist of Inn Serendipity, a family-run bed-and-breakfast near Monroe. When the Badger State passed a so-called “Pickle Bill” in 2013, allowing face-to-face sales of up to $5,000 per year of canned goods, Kivirist and her husband, John Ivanko, were pleased that their pickles and sauerkraut would no longer run afoul of the food police. But then they thought: Why were her muffins still verboten?
“I grew interested in and passionate about the opportunities for folks to readily start food businesses under the growing cottage food laws across the country,” said Kivirist, one of the plaintiffs in the Institute for Justice’s lawsuit against the Wisconsin Department of Agriculture, Trade and Consumer Protection.
The state agency, citing pending litigation, declined to comment. The state’s Bakers Association and grocers, however, have lobbied against a bill that would eliminate harsh penalties -- fines up to $1,000 and jail sentences up to six months -- for violating the home-baked goods restriction.
But the real stumbling block is Assembly Speaker Robin Vos. Though the bill, allowing $7,500 in annual sales, cleared the Wisconsin Senate with bipartisan backing, Vos has used his powers to block it from coming out of committee in the Assembly. A Republican who has held office since 2005, Vos once chaired the Wisconsin chapter of the American Legislative Exchange Council, an organization that generally supports the easing of government regulations. Vos is also the owner of Rojos Popcorn and Concession Supplies, which sells and rents concession stand equipment including popcorn, snow cone and cotton candy makers.
Neither Vos nor his office responded to RealClearInvestigations’ phone calls and e-mails.
“He has made no comment,” Smith, the plaintiffs’ lead attorney said. “He’s supposed to be a servant of the people, yet here he is blocking homemakers and soccer moms from making a little extra money and he won’t even tell them why.”
Smith speculated Vos has bowed to lobbying pressure, noting one of his biggest campaign donors is a state grocer who “also provided him with his first job.”
Whatever the reason, the politics bewilder Dela Ends, a 63-year-old organic vegetable farmer who runs Scotch Hill Farm in Brodhead, Wis., with her husband, Tony, and help from their children. She envisions sales of baked goods as providing a more consistent revenue stream for people like her dependent on the seasons and weather. “It’s very peculiar; we have been wondering why we can’t get this passed,” she said. “Republicans are always saying they are anti-regulation and yet we still have these goofy things going on and they certainly aren’t looking out for people.”
In New Jersey, too, a single lawmaker has bottled up a law that would remove the potential fines for selling home-baked goods. Three times the Garden State’s lower legislative body has voted unanimously to lift the restrictions, and each time the bill has died at the hands of state Sen. Joseph Vitale, a long-serving Woodbridge Democrat. Vitale uses his positions as chairman of the Senate’s Health, Human Services and Senior Citizens Committee and vice-chairman of the Labor Committee in Trenton to ensure the bill never gets to the Senate floor.
Vitale also did not respond to RealClearInvestigation’s phone calls and e-mails. His reasons are also unclear. Hostess doesn’t make Twinkies in his district, and the Institute for Justice said it has seen no campaign-finance trail that would make Vitale’s position suspicious. Neither Wilds nor Martha Rabello, a pastry chef with two children who can’t afford the $15,000 to $30,000 investment she said current law would require, understands Vitale’s opposition.
The Institute for Justice is working with Wilds, Rabello and others, but has refrained from filing a lawsuit in New Jersey. Brooke Fallon, assistant director of activism at the Institute for Justice, professed surprise at Vitale’s position.
“New Jersey is an outlier and I’ve never seen anything like it,” Fallon said. “It’s the only state that completely prohibits the cottage-food industry. It can hit people with $1,000 fines. Meanwhile, it could cost $50,000 for Courteney and others to meet the current standards even though they don’t present unfair competition to the very few brick-and-mortar bakeries that exist in New Jersey.”
Timothy Sandefur, a Goldwater Institute scholar and the author of “The Permission Society: How the Ruling Class Turns Our Freedoms Into Privileges and What We Can Do About it,” said food safety regulations are often essential to ensuring public health, but they can also go too far. The home-baked goods prohibitions could likely be lifted with no real danger to public health, given the absence of widespread illness in the other 48 states as a result of such commerce. “And if we’re worried people might get botulism from a muffin, why stop at sales?” Sandefur asked. “Why not inspect everyone’s kitchen?”
As it happens, Ends also makes goat’s milk soap at her farm. Consequently, Wisconsin officials already inspect parts of her business. The baked goods would mean not only a few more dollars but also help smooth out the farmer’s revenue stream, since many goods can’t be grown and sold year-round. But the prospect of fines – and even six months in jail for violators in Wisconsin – means they struggle to make it with less.
Ends, Kivirist and Kriss Marion, the plaintiffs in the Institute for Justice’s Wisconsin suit, find it odd that their state’s conservative Republican Governor, Scott Walker, has taken no public position on the “Cookie Bill.” Referring to past partisan battles during his time in office, Ends said the bipartisanship already displayed for opening up new entrepreneurial avenues speaks volumes.
“In the climate that exists here in Wisconsin, that’s amazing,” she said. “And it makes it even more frustrating that a thing this simple and positive won’t pass.”
“We’d just like to squeeze a little baking in around the margins,” said Marion, a former Chicago journalist-turned-organic-farmer on the 20-acre Circle M Farm she runs with her husband, Shannon. "We’re not looking to compete with bakers.”
Ends said neither bigger businesses nor customers should have much to fear.
“Oh, c’mon,” she said. “When did Grandma ever kill anyone with her cookies?”
Correction, April 12, 2017, 10:15 AM Eastern
An earlier version of this article misidentified Courteney Wilds. She does not have children.