Licenses and Homemade Not Potentially Hazardous Foods

​​​The Department has submitted an appeal in Lafayette County Case Number 2021CV000013, Wisconsin Cottage Food Association, et al. vs. Wisconsin Department of Agriculture, Trade and Consumer Protection, et al. This webpage​ is up to date and will be updated as needed based on court decisions. For more information about food licenses, please contact a licensing specialist at datcpdfslicensing@wisconsin.gov. ​

A 2017 Lafayette County Circuit Court decision, and late​r court clarifications, prohibited enforcement of licensing requirements for home bakers who make baked goods that are not potentially hazardous and s​ell those items directly to consumers. On December 28, 2022, the Lafayette County Circuit Court extended that ruling to home producers who make any foods that are not potentially hazardous, and who sell those items directly to consumers. The Department has appealed.

Listed below are points of information regarding key parts of the court decisions in effect at this time.

Home Producers of Not Potentially Hazardous Foods

The court's orders apply only to people producing not potentially hazardous foods 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.

Not Potentially Hazardous Food

The court's orders apply only to foods that are not "potentially hazardous foods," as that term is defined in Wis. Stat. §§ 97.29(1)(hm) and 97.30(1)(bm). Potentially hazardous foods are defined as “time/temperature control for safety food" or “TCS food" at Wis. Admin. Code §§ ATCP 70.02(33) and ATCP 75.04(38), with the meaning given in ch. ATCP 75 Appendix part 1-201.10 (B). An item made under the court's order might or might not be potentially hazardous before it is produced, but the finished, ready-for-sale product must not be potentially hazardous. Any business producing potentially hazardous foods must be licensed.​

Direct Sales to Consumers

The court's order only applies if the home producer only sells their items that are not potentially hazardous directly to consumers. A business that is wholesaling such 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 s​pecialist at (608) 224-4923 or datcpdfslicensing@wisconsin.gov.