A 2018 Lafayette County Circuit Court decision, and later court clarifications, have created an exemption from licensing requirements for home bakers who make baked goods that are not potentially hazardous and sell those items directly to consumers. Listed below are points of information regarding key parts of the court decisions.
The exemption from licensure applies only to people baking in their homes. All commercial kitchen baking businesses must follow the Wisconsin Administrative Code requirements of ATCP 70 (Wholesale Food Manufacturing), or ATCP 75 (Retail Food Establishments) and its Appendix (Wisconsin Food Code). Commercial kitchens must ensure that all food businesses using their facilities are appropriately licensed.
The exemption from licensure applies only to "baked goods." Baked goods are generally exposed to dry heat, transferred via air, at a temperature above 140°F, to a food in a closed chamber such as an oven. Some items considered baked goods are made in a waffle maker or Dutch oven. Items dried in a dehydrator are not considered baked goods. The temperature minimum of 140°F exceeds the “danger zone" in which pathogenic microorganisms might grow.
Not potentially hazardous food
The exemption from licensure only applies to baked goods that are not "potentially hazardous food," as that term is defined in Wisconsin Statutes 97.27 (1)(dm) and 97.30(1)(bm). An item made under the exemption might or might not be potentially hazardous before it is baked, but the finished, ready-for-sale product must not be potentially hazardous. Any business producing potentially hazardous baked goods must be licensed.
Direct sales to consumers
The exemption from licensure only applies if the home baker only sells their items that are not potentially hazardous directly to consumers. A business that is wholesaling baked goods must be licensed.
Disclaimer: Ongoing litigation may change the applicability or accuracy of the above information. Business operators are advised to practice due diligence in determining whether their practices require them to hold a food business license. For more information, please contact a Licensing Specialist at (608) 224-4923 or firstname.lastname@example.org.