Why Is This State Banning Moms from Selling Home-Baked Goods?

March 7, 2018

by Terry Schilling


This article is part of a series focusing on Lens of Liberty, a project of the Vernon K. Krieble Foundation.

In her Liberty Minute entitled “Moving the State,” Helen Krieble talks about an interesting story which bears some resemblance to a legal battle currently being fought in New Jersey:

A young man in Kentucky helped his sister move and realized that might be a good living. So he and a friend posted an ad on Craigslist, and the new moving business took off. Before long, they had five trucks and thirty employees.

But then, the state stepped in requiring a certificate of necessity to prove the business was needed and other moving companies could object. But this young entrepreneur looked through the lens of liberty, saw the state improperly protecting favored businesses, and went to court.

He won the case for himself and for free enterprise around the country. Similar laws were struck down in four other states because one citizen decided it was time to move the government out. What a great role model for liberty!

A similar legal battle is currently being fought over a law favoring big businesses over independent entrepreneurs who wish to use their own kitchens as their workplace. In New Jersey, state law bans anyone from selling homemade baked goods unless they are selling them in a bake sale for charity.

Anyone who wants to make a living selling baked goods is required to use a commercial-grade kitchen, pay fees, abide by hundreds of pages of regulations, and get licensed as a “retail food establishment.” Selling a single homemade cookie or brownie for profit could cost bakers $1,000 in fines.

The Institute for Justice (IJ) has stepped in and is currently arguing the case on behalf of three New Jersey moms and the nonprofit coalition, the New Jersey Home Bakers Association, against the New Jersey Department of Health on the grounds that the state’s law violates due-process and equal-protection rights:

Article 1, paragraph 1 of the New Jersey Constitution states that “[a]ll persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness.” This provision protects New Jerseyans’ due-process rights. One of these rights is the right to pursue a chosen livelihood without arbitrary, unreasonable or oppressive governmental interference. The home-baked goods ban violates this right because there is no genuine safety reason to impose an onerous licensing scheme and require home bakers to spend tens of thousands of dollars to access a commercial kitchen before selling cookies. Goods like cookies, muffins and breads are perfectly safe when made in a home kitchen.

Article 1, paragraph 1 also protects New Jerseyans’ equal-protection rights, which include the right of similarly situated individuals to be treated similarly. Those who wish to sell safe home-baked goods to support themselves are similarly situated to those who sell the very same goods to support a church or charity. If a commercial license and commercial-grade kitchen are not required to sell these goods for a church or charity, then they should not be required when people sell these goods to support themselves and their families.

As IJ’s attorney’s argue, “New Jersey’s home-baked goods ban has nothing to do with safety.” This is evidenced by the fact that the state does not prohibit people from selling homemade sweets for charity. Additionally, no evidence has been provided that shows that people have become sick after eating homemade baked goods.

The ban’s only purpose then is “protecting commercial bakers from competition.”

This sounds exactly like the case Krieble was talking about. The purpose of that law was also to protect favored businesses against competition.

Whether it’s young men looking to make money moving furniture or stay-at-home moms looking to make a little extra income, these entrepreneurs deserve encouragement, not fines. New Jersey should learn from the example of the 49 other states that all agree that no one should be fined for selling a cookie.


Terry Schilling is executive director of the American Principles Project.

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