Wisconsin Cottage Food Law: Kivirist Order, Pickle Bill, Labels

Wisconsin’s cottage food law lets you sell two kinds of homemade food without a commercial kitchen or food processing license: shelf-stable baked goods, under a 2017 court order known as Kivirist v. DATCP, and home-canned acidified foods like pickles and jams, under Wis. Stat. § 97.29(2)(b)2., commonly called the “Pickle Bill.”¹² Each track carries its own limits on what you can make, where you can sell it, how much you can earn, and what the label has to say. Everything else — unbaked goods, refrigerated items, wholesale to stores — still requires a license.

What You Can Sell From Home

Baked Goods Under the Kivirist Order

The court order protects items baked in an oven, meaning exposed to dry heat above 140°F in a closed chamber. Bread, cookies, muffins, cakes, crackers, and pies all qualify. Items made in a waffle maker or Dutch oven also count. The finished product must not be “potentially hazardous,” which generally means it stays safe at room temperature without refrigeration.¹

Custard fillings, cream cheese frostings, and other perishable toppings put a product outside the exemption. If raw ingredients were perishable but the finished baked product is shelf-stable, you’re still covered. Dehydrator items do not qualify as baked goods.¹

Canned Acidified Foods Under the Pickle Bill

The Pickle Bill covers pickles and other processed vegetables or fruits with a finished equilibrium pH of 4.6 or lower. In practice, that includes dill pickles, salsa, fruit jams, jellies, and pickled vegetables. The acid level is what makes these foods safe without refrigeration; below pH 4.6, the environment will not support the bacteria that cause botulism.²

Plain canned vegetables like green beans or corn are not acidified and are not covered. Neither are refrigerated items, meats, or dairy-based products. If a batch cannot hold a pH at or below 4.6, it needs a commercial license.

Unbaked Homemade Foods: Still Off-Limits

A separate lawsuit, Wisconsin Cottage Food Association v. DATCP, tried to extend the baked-goods reasoning to things like granola, dried herbs, and trail mix. The Wisconsin Court of Appeals reversed a lower-court ruling for the sellers and held that DATCP can enforce licensing laws against sellers of unbaked, non-hazardous homemade foods.³ Homemade granola, candy, and dried fruit still require a license.

Where You Can Sell and How Much You Can Earn

Both tracks require direct-to-consumer sales. Wholesaling to retailers or restaurants, shipping, and online delivery are not permitted under either exemption.

For home-canned acidified foods, the statute is specific: sales must take place at a community or social event, or at a farmers’ market in Wisconsin. Annual gross receipts must stay under $5,000 from these sales. Cross that threshold and the exemption is gone.²

For baked goods, the court order requires direct-to-consumer sales but sets no dollar cap.¹ The Legislative Council describes the exemption as applying to sales “at a low volume,” a phrase that has not been defined with a number.⁴ A home baker whose business grows substantially risks DATCP taking the position that the sales have moved beyond the order.

What Your Labels Must Say

DATCP’s general food labeling rules apply to both tracks. Every label needs the common name of the product, the name and complete address of the producer, and an ingredient list in descending order of weight. Labels must also declare the nine major food allergens: milk, eggs, fish, crustacean shellfish, tree nuts, peanuts, wheat, soybeans, and sesame. Sesame was added as a required disclosure in January 2023 under the FASTER Act.⁵⁶

The Pickle Bill adds requirements on top of those basics. Each container must include the date the food was canned and this disclaimer: “This product was made in a private home not subject to state licensing or inspection.” You also need a sign at your point of sale stating: “These canned goods are homemade and not subject to state inspection.”²

The Kivirist order does not specify label content for home-baked items. DATCP recommends using the same core elements as licensed products, plus a similar disclaimer that the item was made in a private home not subject to state licensing or inspection.⁵

Food Safety for Home Canners

The Pickle Bill does not legally require home canners to complete a food safety course. The statute directs DATCP to “encourage” producers to complete department-approved training and to have their recipes and processes reviewed by a recognized authority, and DATCP works with University of Wisconsin Extension to make that training available.²

Skipping training is a gamble. A mistake on pH can create a serious food safety hazard. If you produce acidified foods, testing and documenting the pH of every batch is the single most important safety step you can take. Keep a production log with dates, recipes, and pH readings; those records protect you if anyone questions the safety of your product.

Licensed acidified food manufacturers face stricter FDA rules, including a certified supervisor on-site during production. If you outgrow the Pickle Bill, those federal requirements apply to the licensed operation that replaces it.⁷

When You Lose the Exemption

Crossing the line does not just mean a warning; it means operating an unlicensed food business. The Pickle Bill exemption ends if you earn $5,000 or more per year from covered sales, sell outside of farmers’ markets and community events, or sell a product with a pH above 4.6.²

The Kivirist exemption stops applying if you wholesale to retailers, sell items that are potentially hazardous, or produce items that are not actually baked. Commercial baking businesses must follow Wisconsin Administrative Code requirements under ATCP 70 for wholesale manufacturing or ATCP 75 for retail food establishments.¹

If you fall outside either exemption, you need a Retail Food Establishment license or a Food Processing Plant license. Operating without the appropriate license can bring a civil forfeiture of up to $1,000 per violation under Wis. Stat. § 97.72.

Taxes on Cottage Food Sales

Income from home food sales is taxable regardless of how small the operation is. Net earnings go on Schedule C of your federal return and become subject to self-employment tax once they exceed $400 for the year. That tax covers Social Security and Medicare at 15.3% of net earnings, which surprises many first-time sellers.

Keep receipts for everything: ingredients, jars, packaging, labels, booth fees, and mileage to markets. If the IRS treats the activity as a business rather than a hobby, you can deduct those ordinary expenses even in a loss year. The agency generally presumes a profit motive if you show a profit in three of the last five tax years, and looks at whether you keep accurate records, maintain a separate bank account, and put real time into the activity.

Insurance and Liability

A standard homeowners policy almost certainly will not cover a foodborne illness claim from a home business. Most policies contain a “business pursuits” exclusion that removes liability and property coverage for activities tied to a home-run business. If a customer gets sick and sues, the homeowners insurer will likely deny the claim.

Product liability insurance for home food producers typically runs $25 to $50 per month, depending on sales volume and coverage. Call your homeowners insurer first to confirm whether your cottage food activity triggers the business exclusion, then shop a standalone product liability policy if it does. Some farmers’ markets require proof of liability coverage before issuing a booth, so insurance may be unavoidable in practice.

Forming a limited liability company adds a layer of separation between personal assets and business claims, but it does not replace insurance. Wisconsin’s filing fee for a domestic LLC is $130, with a $25 annual report fee.

1
Wisconsin Department of Agriculture, Trade and Consumer Protection. Homemade Baked Goods
2
Wisconsin State Legislature. Wisconsin Code 97.29 – Food Processing Plants
3
Wisconsin Court System. Wisconsin Cottage Food Association v. WI Department of Agriculture, Trade and Consumer Protection
4
Wisconsin State Legislature. Wisconsin Cottage Food Law
5
Wisconsin Department of Agriculture, Trade and Consumer Protection. General Food Labeling
6
U.S. Food and Drug Administration. Allergic to Sesame? Food Labels Now Must List Sesame as an Allergen
7
Wisconsin Department of Agriculture, Trade and Consumer Protection. Acidified/Canning Processors