Sussex teen joins baking lawsuit
State: Sale illegal due to perishable ingredients
A Sussex teen who started a home business baking macarons has joined a lawsuit as she seeks to keep her business on the right side of the law.
Ellie Boehm, owner of Miss E’s Sweet Treats, joined the action with dozens of other Wisconsin home food producers against the state Department of Agriculture, Trade and Consumer Protection after receiving an email alleging her business is illegal. In the email, Jessica Hoover, executive director of the Wisconsin Bakers Association, also said that some of the ingredients Ellie uses are potentially hazardous.
The lawsuit, filed Feb. 10 in Lafayette County Circuit Court, concerns how the state agriculture department interprets a 2017 Circuit Court ruling in that county that home bakers are free to sell their products as long as they can remain unrefrigerated.
There are about 300 plaintiffs in the suit, including the Wisconsin Cottage Food Association.
“I think it is crucial that people can do these home businesses,” said Ellie’s mother, Colleen. “Especially now with COVID, and if people have a loss of income.”
According to the suit, the state agriculture department has banned sales of homemade chocolates, fudges, candies, granola, doughnuts and roasted coffee beans.
The suit noted that these products are considered shelf-stable — food that can be unrefrigerated — and should be legal for home food producers to sell. Their sales are allowed in other states, it added.
“The issue remaining is how we interpret our (2017) victory,” said attorney Suranjan Sen of the Institute for Justice, a Virginia-based national nonprofit representing the plaintiffs.
Macaron issues
In a statement, Hoover said that some of the ingredients Ellie uses — such as heavy cream and eggnog — are hazardous, as they cannot safely remain unrefrigerated.
“If you produce potentially hazardous baked goods, you must obtain a license to operate your business,” she said in the statement.
Sen disagrees.
“The 2017 lawsuit allows for the direct-to-consumer sale of any homemade baked good that is shelf-stable. That would include macarons — a
“I went through a lot of emotions about the email (from the Wisconsin Bakers Association, saying Ellie’s business was illegal). It was designed to intimidate. She is going to keep baking.”
Colleen Boehm Ellie Boehm's mother
homemade baked good — so long as the macaron is shelf-stable,” he said.
“Although some ingredients/foods are categorically shelf stable and some categorically need refrigeration, some are borderline, depending on factors like ratios and preparation methods.
“A food including buttercream, for example, might need refrigeration or it might not. That’s why cottage foods producers making certain foods might pay to have their products tested in a laboratory, which can tell them definitively whether their food is shelf stable or how they might prepare it differently to make it shelf stable,” Sen added.
While the suit is pending, Ellie has stopped using heavy cream products in recipes that call for it, and is replacing the cream with water, her mother said. Boehm said she plans to go to a private laboratory to see whether the cream and the cream in the recipe meets the requirement of being shelf-stable.
Sen added that the Wisconsin Bakers Association is not a government entity and should not be telling someone whether they are doing something illegal.
He also questioned Hoover’s assertion that Ellie would need a license to sell her macarons.
“If someone wants to sell foods to informed consumers, and people would like to buy it for their own consumption, they should never be required to seek governmental permission first. But if getting that ‘permission’ — a license — were a reasonable and easy process, it wouldn’t be as much of an issue,” he said.
According to the lawsuit, renting a commercial kitchen can cost more than $1,000 a month. And obtaining a commercial food license requires a business-grade kitchen, which can cost between $40,000 and $80,000, the suit said.
“I went through a lot of emotions about the email (from the WBA),” said Boehm. “It was designed to intimidate.”
“She is going to keep baking,” she said of her daughter.
WBA says home bakers should be treated the same as retail bakers
Hoover said in her statement she contacted Ellie to let her know that her organization was thrilled to learn of her interest in baking and starting a home bakery.
But she said the WBA stands with the Retail Bakers of America on the legal aspects of home bakers.
“RBA and WBA support all Cottage Industry Bakers and Decorators provided that the laws regulating them are no different than licensed retail bakeries,” she wrote. That includes following food safety and sanitation laws, getting appropriate licenses, undergoing inspections, carrying appropriate insurance and paying taxes, she wrote.
The state agriculture department did not respond to an email and a phone call from a reporter.
The department has until March 29 to respond to the lawsuit.