On February 26, 2018, Lafayette County Circuit Court Judge Duane Jorgenson provided his final order in the Kivirist et. al. v. WDATCP case, dealing with an exemption from licensing requirements for home bakers who make not-potentially hazardous baked goods. Listed below are components of the ruling that may be helpful.
The exemption from licensure applies only to people baking out of their homes. All commercial kitchens must follow the requirements of Wis. Admin. Code ch. ATCP 70, related to food processing plants, and commercial kitchens must ensure that all producers and processors using their facilities are licensed.
The exemption from licensure applies only to flour-based “baked goods” as indirectly defined in the Wis. Stat. § 97.29(1) (b) definition of “bakery.” The court’s order did not address other processing activities, such as the cooking and drying of products like candies and other confectionaries. If you prepare items other than baked goods, then you must obtain a license to operate your business.
Potentially Hazardous Baked Goods
You may only produce baked goods that are not-potentially hazardous, as that term is defined in Wis. Stat. §§ 97.27(1) (dm) and 97.30(1) (bm), in order to be exempt from licensure. If you produce potentially hazardous baked goods, you must obtain a license to operate your business.
Direct Sales to Consumers
Unlicensed home bakers must sell directly to consumers. If you plan to sell your baked goods wholesale—i.e., not directly to consumers—then you must obtain a license to operate your business.