ELIZABETH, N.J. (CN) — Bake all the Christmas cookies you want, but don’t try to sell them in New Jersey or you could be fined $1,000, though a similar law in Wisconsin was tossed as unconstitutional, three home bakers said Wednesday in suing the state.
Lead plaintiff Heather Russinko and her fellow bakers, and the nonprofit New Jersey Home Bakers Association, sued the New Jersey Department of Health, saying the prohibition is pointless, and hurts hundreds of bakers across the state who want to sell their baked goods to support themselves and their families. Their lead attorneys in Union County Court are Erica Smith and Michael Bindas with the Institute for Justice, and Richard Chusid, of Union, N.J.
The bakers claim New Jersey is the only state that bans the sale of home-baked goods, such as cookies, muffins, bread, and cakes. Wisconsin’s similar ban was declared unconstitutional for lack of due process and thrown out last year.
They say there is no genuine health or safety reason for the ban.
“There is no report of anyone, anywhere, ever becoming sick from an improperly baked good,” the complaint states.
New Jersey requires people who wish to sell their goods to be licensed, and they may not use their home kitchen, only a commercial-grade kitchen. That can be “extremely burdensome,” and can cost tens of thousands of dollars a year, the bakers say.
“In short, New Jersey residents are prohibited from selling baked goods and other homemade foods made in their home kitchens and, instead, must build or lease a commercial-grade kitchen, receive licensure as a retail food establishment, abide by hundreds of pages of regulations, subject themselves to governmental inspection, and pay the government fees.”
There’s a catch: New Jersey exempts from the ban home-baked goods that are sold for charity. This violates the New Jersey Constitution’s guarantee of equal protection, the bakers say.
“The plaintiffs, however, are prohibited from selling them [their baked goods] solely because they wish to sell them to support themselves and their families, rather than a religious or charitable cause,” the complaint states.
Several bills to allow the sale of homemade foods have been introduced in the Legislature since 2011. Two bills that passed the State Assembly unanimously, in 2013 and 2014, would have changed the law.
Although identical bills originated in the State Senate, they were never allowed a vote. The bakers say it’s because state Sen. Joseph Vitale, chairman of the Senate’s Health, Human Services and Senior Citizens Committee, refused to give the bills a hearing or let the bills out of committee, publicly stating that he wants to protect commercial bakers and other food producers from competition.
“The reason New Jersey requires a retail food establishment license for selling baked goods and other not-potentially-hazardous foods to support oneself and one’s family appears to be to protect licensed bakers and other commercial food producers from competition from would-be home bakers and other home-food producers,” the complaint states.
The New Jersey Department of Health declined to comment on pending litigation.
The Bakers Association calls the law “arbitrary, irrational, unreasonable, and oppressive” and unconstitutional. They seek declaratory judgment and a permanent injunction prohibiting the Department of Health from enforcing the licensing and other requirements for retail food establishments upon home bakers.