Why Wisconsin has no single cottage food law
Wisconsin's legislature never passed a broad cottage food bill. Home bakers won their freedom in court instead, in Kivirist v. DATCP, a Lafayette County Circuit Court case. Its orders stop the Department of Agriculture, Trade and Consumer Protection (DATCP) from enforcing licensing rules against home bakers who sell baked goods that are not potentially hazardous directly to consumers.
The circuit court later stretched that ruling to every shelf-stable homemade food, but the Wisconsin Court of Appeals reversed it, and the Wisconsin Supreme Court declined to review. So the exception covers baked goods only. DATCP warns that ongoing litigation could still change things.
Home bakers: what counts as a baked good
DATCP reads the court orders narrowly. Three conditions decide whether you need a license:
- You bake in your own home. Commercial kitchen bakers follow ATCP 70 or ATCP 75 and must be licensed.
- It is a baked good: cooked by hot, dry air above 140°F inside a closed space such as an oven. DATCP accepts some waffle iron and Dutch oven treats. Anything from a dehydrator is not baked.
- The finished product is not potentially hazardous, so it is safe without refrigeration.
And you sell directly to consumers. Candy, jerky, dried fruit, granola made in a dehydrator and other non-baked foods still need a license, however shelf-stable they are.
Home canners: the Pickle Bill
Wisconsin Act 101, known as the "Pickle Bill", lets you sell certain home-canned foods without a license. DATCP calls it a narrow exception. The food must be fruits or vegetables that are naturally acidic, or acidified by pickling or fermenting, with a pH of 4.6 or lower.
| Allowed without a license | Needs a license |
|---|---|
| Pickled fruits and vegetables (not refrigerator pickles) | Fruits or vegetables with a pH above 4.6 |
| Salsas and chutneys | Pickled eggs |
| Sauerkraut and kimchi | Lemon curd and pesto |
| Fruit-based jams and jellies | Dressings |
| Cherries, peaches, applesauce and other fruits | Fish and meat products |
DATCP recommends testing the pH of the first batch of each recipe, using tested recipes from sources like the National Center for Home Food Preservation, and keeping records of each batch: recipe, amounts canned and sold, canning date, sale dates and places, receipts and pH results.
Where you can sell Pickle Bill foods
| Way of selling | Allowed? |
|---|---|
| Farmers markets and flea markets in Wisconsin | Yes |
| Community or social events in Wisconsin | Yes |
| From your home | No |
| Online or out of state | No |
| Wholesale or consignment | No |
| At a table together with licensed foods | No |
At the point of sale, post a sign: "These canned goods are homemade and not subject to state inspection."
Home bakers have no such venue list: the court orders only require that you sell directly to consumers.
When you need a DATCP license
Wholesale baking, a commercial kitchen, candy and other non-baked foods, low-acid canning or more than $5,000 in Pickle Bill sales all mean a DATCP food license. Wholesale food manufacturing falls under ATCP 70, retail food establishments under ATCP 75. DATCP's licensing specialists can tell you which one fits.
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