- - Tuesday, June 14, 2016

ANALYSIS/OPINION:

Blanchardville, Wis. — Kriss Marion was an organic farmer, not a fighter.

But Wisconsin’s restrictive law on homemade baked goods forced this peaceful sustainable homesteader to fight back.

Marion and her husband, Shannon, Chicago transplants, fell in love with the Driftless Area of southwest Wisconsin more than a decade ago and never looked back.

They launched Circle M Market Farm in rural Blanchardville, about 40 miles southwest of Madison. They share their 20 acres with their sheep, goats, chickens, horses, beef cows, pigs, dogs, cats, ducks and a “crazy goose.”

Like a lot of small farmers, Marion is constantly looking for ways to monetize the farm. Organic veggies don’t have a big profit margin.

So Marion and others in her circle turned to baking.

“A lot of us do farmers markets or roadside stands,” she said.

But Marion learned that in Wisconsin, selling muffins, cookies, brownies or any other such homemade baked goods could get her into trouble.

In fact, she was told by inspectors at the Dane County Farmers Market not to do it.

She could face a $1,000 fine and up to six months in jail for peddling her homemade baked goods.

Lisa Kivirist knows too well the restrictive nature of the “cake law.” She and her family can serve muffins and other baked goods to the guests of their Inn Serendipity Farm and Bed and Breakfast near Monroe. But selling those muffins could come with a stiff penalty.

“It is not clear to me why I can serve you this muffin legally, but I cannot sell you this muffin legally,” said Ms. Kivirist.

For several years cottage industry advocates have tried to work with lawmakers to change the law, one of only two like it in the United States (New Jersey has a similar statute on the books).

Along the way, Marion changed from relaxed organic farmer to passionate activist, helping to lobby legislators to pass the so-called “cookie bills.” The first proposal in 2013 would have allowed home-kitchen bakers to sell up to $10,000 worth of homemade goods per year without having to obtain a commercial baker licenses.

The bill had bipartisan support, but it went nowhere.

Assembly Speaker Robin Vos, a Republican, who owns Rojos Popcorn in Burlington, killed the bill.

He did it again in the last session, heeding the call of his friends in the commercial bakery industry to keep even the modest reforms of the “cookie bill” — which would have allowed up to $7,500 in annual homemade baked goods sales — from seeing the light of the day in the Assembly. This after the bill easily moved from the Senate.

Ms. Kivirist said it was like living in the movie “Groundhog Day.”

“The same thing happened this spring. It passed the Senate unanimously but never got on the Assembly floor for a vote,” she said.

“It frustrating, and not the way Wisconsin can claim its ‘open for business’ title,” she said, referring to Republican Gov. Scott Walker’s oft-repeated pro-business slogan.

Critics of the cookie bill claim the legislation would hurt small commercial bakers who, unlike home-kitchen entrepreneurs, must pay for expensive professional licenses.

“If several people in a certain market or particular community are doing that, they’re eating away at a local baker that’s been there for 100 years and taking away his livelihood. How is that fair?” Dave Schmidt, executive director of the Wisconsin Bakers Association, told Wisconsin Public Radio.

Fed up with the one-man legislative impasse, Marion, Kivirist and fellow organic farmer Dela Ends, filed a lawsuit against the state Department of Agriculture, Trade, and Consumer Protection, asking the court to strike down the law.

“We are going this route with the lawsuit to establish a legal precedent,” Ms. Kivirist said. “It is my constitutional right to earn an honest livelihood, and the government does not have the right to impose arbitrary laws.”

The women are being represented by the Arlington, Va.-based Institute for Justice, a national limited-government public interest law firm.

Erica Smith, an attorney for the organization, said the obstruction to reform has nothing to do with food safety and everything to do with politics and protectionism.

“What we have here is one representative in the Legislature, Robin Vos, who is pretty much committed to the idea you shouldn’t have stay-at-home moms competing with the established bakers and the idea you don’t want people to make a couple extra bucks selling out of their home kitchens because they could potentially put an established commercial baker out of business,” she said.

Wisconsin does allow the sale of some homemade goods. The 2009 “Pickle Bill” allows individuals to sell up to $5,000 of high-acid canned goods produced in a home kitchen. But Wisconsin is alone in the Upper Midwest when it comes to its lack of cottage food laws.

That’s why the “cookie ladies” are so engaged in the legal fight.

“Other states are much more forward thinking in what types of regulations they have to protect food safety and at the same time champion entrepreneurship. We can’t even get to the table here,” Ms. Kivirist said.

For now, the legal battle is moving through the slow discovery process, and it will be months before the Legislature is back in full-floor session.

That’s the way the cookie crumbles in politics and lawsuits.

“I’d rather be baking cookies than going to court,” Marion said. But she is fighting on behalf of the entrepreneurial spirit, and that puts her, Ms. Kivirist and Ms. Ends among the unsung heroes of The Washington Times.

M.D. Kittle is the Wisconsin Washington.org bureau chief.

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