Home Baker Challenges City Food Ordinance Requiring Inspections

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A new lawsuit challenges health ordinances the city of Lincoln enacted after Nebraska lawmakers loosened state restrictions on the sale of home-baked goods and other cottage foods.

Nebraska lawmakers did away with restrictions last year that prevented home bakers and other cottage food producers from selling their goods directly to consumers—a move that some say has allowed them to expand their home-based businesses.

But concerned about food-borne illnesses, the city of Lincoln this year adopted its own cottage food licensing and inspection regulations to ensure the food made in local kitchens was safe.

Now, one home baker is suing the city’s health department in an effort to roll back the regulations, which she argued are at odds with the state legislature’s actions.

The public-interest law firm, the Institute for Justice, is representing Cindy Harper, a 57-year-old Lincoln baker who sells the decorative sugar cookies and pound cakes she makes in her home. Attorneys for the libertarian firm filed a lawsuit this month alleging that the city’s local ordinance was illegal because it violates the state constitution’s preemption statute, which prevents municipalities from adopting legislation that conflicts with state law.

“Lincoln’s ordinance is a solution in search of a problem,” said Keith Neely, and attorney for the group. “Home-baked goods are just as safe in Lincoln as they are in the rest of Nebraska.”

Previously the state required any business that sold food for human consumption to obtain a permit from the Department of Agriculture, which required the use of commercial-grade kitchens and bathrooms, strict food-handling practices, and certain inspections. Two exemptions allowed foods cooked in more home-like environments to be sold at charity bake sales and at farmer’s markets where consumers were informed the goods were made in kitchens and not commercial kitchens.

The state legislature expanded the number of exemptions, allowing direct consumer sales at public events like fairs, festivals, and craft shows, as well as pickup or delivery sales from a seller’s home.  

The city’s ordinance requires cottage food makers to obtain a permit and pay a $30 annual fee, undergo health inspections, and comply with certain food handling provisions, such as keeping pets out of the kitchen while food is being prepared.

According to the lawsuit, Harper is “unwilling to subject herself to the city’s unnecessary and burdensome regulations or to open her home up to inspections ‘at any reasonable time’ and ‘as frequently as necessary’ just to sell perfectly safe baked goods.”

Lincoln City Attorney Jeff Kirkpatrick said the ordinance does not prevent local bakers from selling their goods and said nine people have applied for and received cottage food permits to operate under the ordinance. No one has been denied a permit thus far. 

Inspections are meant to be educational rather than punitive for home bakers, and if inspectors see something unsanitary, they want to correct the issue.   

“We don’t have the interest and resources to inspect on a weekly or monthly basis,” Kirkpatrick said. “We want to do some inspections to make sure things are set up safely.”

Kirkpatrick said the city has not formally responded to the lawsuit yet as it is still evaluating the case. But he said city lawmakers felt the state’s law left municipalities with the discretion to adopt their own food safety ordinances.

Other than New Jersey, every other state has legalized the sale of home baked goods or other canned foods like jellies and jams, according to the Institute for Justice. The Lincoln case is one of several active lawsuits the institute has filed to challenge cottage food restrictions in other states.

Andrea Noble is a staff correspondent with Route Fifty.

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