A 2017 Lafayette County Circuit Court decision, and later court clarifications, prohibited enforcement of licensing requirements for home bakers who make baked goods that are not potentially hazardous and sell those items directly to consumers. On Dec. 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. On May 30, 2023, the Wisconsin Court of Appeals put the Dec. 28, 2022, order on hold pending final resolution of the appeal.
Listed below are points of information regarding key parts of the court decisions in effect at this time.
Home Producers of Baked Goods
The court's orders apply only to people producing baked goods 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 court's orders apply 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 court’s order only applies to baked goods that are “not potentially hazardous food,” as defined in Wis. Stat. §§ 97.29(1)(dm) and 97.30(1)(bm). An item 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 court's order 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