Wis. Cottage Food Ass'n v. WI Dep't of Agric.

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Wisconsin Cottage Food Association, Mark Radl, Stacy Beduhn, Kriss Marion, Lisa Kivirist, Dela Ends and Paula Radl, Plaintiffs-Respondents, v. WI Department of Agriculture, Trade and Consumer Protection and Randy Romanski, Defendants-Appellants.

No. 2023AP367

Court of Appeals of Wisconsin, District I

November 19, 2024

APPEAL FROM AN ORDER OF THE CIRCUIT COURT FOR LAFAYETTE COUNTY, NO 2021CV13 RHONDA L. LANFORD, JUDGE.

Before White, C.J., Donald, P. J., and Colon, J.

COLON J.

¶1 The Wisconsin Department of Agriculture, Trade and Consumer Protection and Randy Romanski (collectively DATCP) appeal from an order of the circuit court finding the retail food establishment laws found in WIS. STAT. § 97.30 (2021-22),^[1] and WIS. ADMIN. CODE ch. ATCP 75, along with its corresponding appendix, unconstitutional as a violation of equal protection and due process and enjoining DATCP from enforcing the licensing and other requirements found in those laws against sellers of unbaked, "not potentially hazardous," homemade foods.

¶2 On appeal, DATCP argues that the retail food establishment laws do not violate equal protection or due process and are therefore, constitutional. In the alternative, DATCP further argues that the circuit court's injunction should be invalidated due to its vagueness.

¶3 For the reasons set forth below, we conclude that the retail food establishment laws do not violate equal protection or due process and are, therefore, constitutional. Consequently we reverse the circuit court's order finding the retail food establishment laws unconstitutional and enjoining DATCP from enforcing those laws against sellers of unbaked, not potentially hazardous, homemade foods. We further remand with directions to enter judgment in favor of DATCP and dismiss the complaint.

BACKGROUND

¶4 Wisconsin generally requires that anyone looking to prepare and sell food directly to consumers for a profit obtain a license and follow certain requirements as a "retail food establishment." See WIS. STAT. § 97.30(1)(c), (2)(a); see also WIS. ADMIN. CODE ch. ATCP 75, ch. ATCP 75 app. ("Wisconsin Food Code"). Among the several requirements for obtaining and maintaining a license and operating a retail food establishment are inspection requirements, food storage and handling requirements, facility requirements, and licensing fees. See, e.g., § 97.30(2)(a), (3); WIS. ADMIN. CODE §§ ATCP 75.06, 75.067. There are also limited exemptions to the retail food establishment laws, including for nonprofit organizations hosting a limited number of events in a calendar year and for producers of specific types of food, such as popcorn, maple syrup, honey, sorghum syrup, and cider. See § 97.30(2)(b)1.; WIS. ADMIN. CODE § ATCP 75.063(5)-(7). DATCP is charged with conducting regular inspections of retail food establishments and ensuring compliance with the retail food establishment laws. Sec. 93.07(24); WIS. ADMIN. CODE § ATCP 75.10.

¶5 In Lafayette County Circuit Court Case No. 2016CV6, Lisa Kivirist, Kriss Marion, and Dela Ends (collectively Kivirist) challenged these retail food establishment laws as applied to Kivirist and similarly situated individuals of baked, not potentially hazardous,^[2] homemade foods, such as cookies, cakes, and muffins, as a violation of the right to equal protection and due process.^[3] At a hearing held on May 31, 2017, the circuit court in that case agreed and enjoined DATCP from enforcing the retail food establishment laws against sellers of baked, not potentially hazardous, homemade foods. DATCP did not appeal the circuit court's decision in Case No. 2016CV6, and in February 2021, Kivirist moved to find DATCP in contempt for violating the injunction.^[4] The circuit court denied the motion and clarified that its previous order applied to homemade, shelf-stable foods that have been baked in an oven.

¶6 At the same time in February 2021 that Kivirist moved for contempt in Case No. 2016CV6, the Wisconsin Cottage Food Association,^[5] along with several individuals including Mark Radl, Stacy Beduhn, Stephanie Zink,^[6] Kriss Marion, Lisa Kivirist, Dela Ends, and Paula Radl (collectively WCFA) filed the complaint underlying this case against DATCP, alleging that the retail food establishment laws found in Wis. STAT. § 97.30 and Wis. Admin. CODE ch. ATCP 75, along with Wisconsin's Food Code contained in the corresponding appendix, were unconstitutional as applied to them as sellers of unbaked, not potentially hazardous, homemade foods, including foods such as fudges, candies, energy bars, roasted coffee beans, and dried soup mixes.

¶7 Specifically, WCFA alleged, similar to Case No. 2016CV6, that the retail food establishment laws violated the right to equal protection and due process. WCFA argued that the foods it sought to sell were safe, or even safer, then other foods sold under exemptions from the retail food establishment laws, and it argued that many of the requirements for a license under the retail food establishment laws were such a burden on producers of homemade goods so as to effectively prohibit the production and sale of homemade products.^[7] WCFA further alleged that its members who sought to sell unbaked, not potentially hazardous, homemade foods are similarly situated to those groups who fall under exemptions to the retail food establishment laws and there is no rational reason for the difference in treatment. In fact, WCFA alleged that the laws were motivated by the illegitimate purpose of protecting commercial business from the competition posed by those who sell homemade foods. As a result, WCFA requested that the circuit court enjoin DATCP from enforcing the licensing and other requirements of those laws against them and other similarly situated individuals.

¶8 DATCP filed a motion to dismiss on March 29, 2021, and argued that the retail food establishment laws were rationally related to the legitimate state purposes of public health, safety, and welfare; promoting food safety and consumer confidence; and protection of consumers. Consequently, DATCP argued the laws were constitutional as applied to WCFA and similarly situated individuals seeking to sell homemade food products directly to consumers. DATCP argued that WCFA effectively sought to have the court create an exemption to the retail food establishment laws that the legislature did not see fit to create at the time the laws were enacted. Following briefing and a hearing on the motion, the circuit court denied DATCP's motion to dismiss.

¶9 WCFA proceeded to depose several former and current DATCP employees, and it sought the employees' opinions on the safety of the foods at issue in this case and the policy choices behind the exemptions in comparison to the foods WCFA sought to produce and sell. Both WCFA and DATCP also hired experts to provide opinions on the safety of the foods at issue here.

¶10 The case proceeded to summary judgment. At that time, the circuit court found that the retail food establishment laws were unconstitutional and enjoined DATCP from enforcing the laws against WCFA and similarly situated individuals. In particular, the circuit court found that the retail food establishment laws were designed with the primary purpose of food safety for consumers, and the circuit court found that there was no rational reason for treating WCFA and similarly situated individuals differently to further that purpose when the foods WCFA sought to sell were as safe, or safer, than foods sold under the exemptions. Consequently, the circuit court granted WCFA's motion for summary judgment, denied DATCP's motion, and entered an injunction prohibiting the enforcement of the retail food establishment laws against WCFA and all similarly situated individuals.

¶11 DATCP appealed and additionally sought a stay of the circuit court's injunction, which this court granted.

DISCUSSION

¶12 Summary judgment "shall be rendered if the pleadings depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." WIS. STAT. § 802.08(2). We review a decision granting summary judgment "independently of the circuit court, benefiting from its analysis." Lambrecht v. Estate of Kaczmarczyk, 2001 WI 25, ¶21, 241 Wis.2d 804, 623 N.W.2d 751. We apply the same standard as the circuit court. Id. "Specifically, a court first examines the pleadings to determine whether a claim for relief is stated and [then] whether a genuine issue of material fact is presented." Id.

¶13 On appeal, DATCP raises two main arguments as to why we should reverse the circuit court's grant of summary judgment for WCFA. First, DATCP argues that the retail food establishment laws being challenged in this case satisfy rational basis review and do not violate equal protection or due process. Second, and in the alternative, DATCP argues that the circuit court's injunction is unlawful due to the vagueness of the injunction.

¶14 We conclude that the retail food establishment laws survive rational basis review and are, therefore, constitutional. Thus, we reverse the circuit court's order granting summary judgment in favor of WCFA and enjoining the enforcement of the retail food establishment laws against the sellers of unbaked, not potentially hazardous, homemade foods. As a result of our conclusion, we do not reach the question of whether the circuit court's injunction is unlawful. See State v. Blalock, 150 Wis.2d 688, 703, 442 N.W.2d 514 (Ct. App. 1989) ("[C]ases should be decided on the narrowest possible ground[.]").

I. General Principles of Equal Protection

¶15 WCFA challenges the constitutionality of the retail...