Home bakers sue state to be able to sell creations

Photos Courtesy of the Institute for Justice
Heather Russinko, pictured with her cake pops, and Martha Rabello, have sued the New Jersey Department of Health, on behalf of their New Jersey Home Bakers Association, in order to sell their confections for profit.

CRANFORD, NJ — Martha Rabello used to run her own bakery. Not anymore. The Cranford mother of two was trained as a pastry chef in Brooklyn and specialized in Brazilian-inspired cookies that pair well with coffee.

She rented a commercial-grade kitchen, required by New Jersey state law, but the cost was so burdensome, she stopped, halting her business. Now, she and other members of the New Jersey Home Bakers Association are looking to overturn the state regulation that prohibits would-be Betty Crockers from selling their confections.

The organization — in conjunction with the Arlington, Va.-based libertarian law firm Institute for Justice — sued the state Department of Health on Dec. 6, claiming the law is unconstitutional and unnecessary. With every other state allowing the sale of home-baked goods, they can’t understand why New Jersey is the only one that doesn’t allow it.

“Home-baked goods are perfectly safe and are already legally sold in 49 states,” lead attorney Erica Smith told LocalSource in a Dec. 12 email. “No one anywhere has ever gotten sick from an improperly baked good, and New Jersey has no problem allowing their sale to support charities.”

“If a person can sell their cookies to support their favorite charitable cause, they should be able to sell the same cookies to support their family.”
When reached for comment, New Jersey Department of Health Director of Communications Donna Leusner told Local Source on Dec. 18 that the department does not comment on pending litigation.

The case will make Union County ground zero for the issue, with the matter assigned to Superior Court Judge Camille Kenny in Elizabeth. A hearing has not yet been scheduled.

For years, the Home Bakers Association has advocated for the “Cottage Foods Law,” legislation that allows the sale of home-baked goods, which is essentially in effect in every other state.

Despite a relatively intense lobbying campaign — including email blasts from members of the association — only baked items sold to benefit organizations such as local churches, Boy or Girl Scouts or sports teams are permitted.
The Home Bakers Association blames state Sen. Joe Vitale of the 19th Legislative District in Middlesex County. He is the chairman of the Senate’s Health, Human Services and Senior Citizens Committee.

“The Cottage Foods Law has passed unanimously through the Assembly three times, but has failed every time at the hands of the Sen. Joe Vitale,” Institute for Justice spokeswoman Shira Rawlinson told LocalSource in a Dec. 12 phone interview.
Vitale has continued to refuse to give the bill a hearing in his committee, claiming he wants to protect commercial bakers from competition, Rawlinson added.

LocalSource contacted Vitale’s office for comment, but he did not respond prior to publication.
According to the lawsuit, the association wants bakers to earn income by selling their foods to friends, neighbors and the public.
For Rabello and others, complying with the Department of Health’s regulations is costly.

“Even renting a shared commercial kitchen typically costs about $25 to $35 an hour, in addition to storage fees and other expenses,” the lawsuit states.

Military spouses, people with disabilities and stay-at-home moms would all be able to supplement their incomes, Rabello said
This state ban extends to baked goods that the state does not consider “potentially hazardous,” such as cookies, muffins, breads and cakes that do not require refrigeration, are shelf stable, and safe, according to the lawsuit.

Violators of the ban face up to $1,000 in fines for a first offense.
The lawsuit contends the ban hurts hundreds of New Jerseyans across the state who just want to sell their baked goods to support themselves and their families.

“We just released a study on home bakers and other cottage food producers, and the study concluded that allowing the sale of homemade foods primarily helps low-income women in rural areas,” Smith said. “If New Jersey was to catch up with the rest of the country and allow the sale of home baked goods, it would create much-needed income and jobs for people who really need it.”

The issue harkens back to the early 1990s, when New Jersey became the butt of jokes — particularly by late-night comedians — about what became known as the state’s ban on “runny eggs.” For a brief period, the state prohibited restaurants from serving what it considered undercooked eggs to prevent the spread of salmonella poisoning.

Smith told LocalSource that the bakers are pretty confident they will win the case.
“We recently sued Wisconsin, who also had a ban on selling home-baked goods, and the Wisconsin judge struck the ban down as unreasonable and unconstitutional,” Smith said. “We are confident that the New Jersey court will come to the same conclusion.”