Sussex teen joins home-baking lawsuit against state

During the coronavirus pandemic, a Sussex teen turned her passion for baking into a business, only to be told that what she's doing is illegal. She's since joined a lawsuit against the state.

In 2017, a Wisconsin judge ruled that home bakers are free to sell their products as long as they can remain safely un-refrigerated. With these guidelines in mind, 15-year-old Ellie Boehm took on a new venture, never thinking one common ingredient would be cause for concern.

"Macarons are typically a pretty finicky cookie and right out of the gate, she just nailed it,"  said Colleen Boehm, Ellie's mom.

Ellie Boehm

With more time spent at home due to the coronavirus pandemic, many are discovering new hobbies or perfecting old ones, including Ellie Boehm, who turned her passion for making french macarons into profit.

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"Took a couple of them, made them for my birthday party, and that’s when people told me I could sell them easily," said Ellie Boehm.

Juggling school and sports -- the Sussex teen sells a limited number of orders per month. For Valentine's Day, she sold 250 macarons. 

"It’s really cool seeing your kid doing something that they love to do," said Colleen Boehm.

That's why Ellie's mom said an email in late January from the Wisconsin Bakers Association came as a shock.

"It was a little disconcerting at first because she used words like, 'What you’re doing is illegal,'" said Colleen Boehm.

The WBA says heavy cream, originally used in the filling of Miss E's Sweet Treats, would deem the products "potentially hazardous," as they'd need to be refrigerated -- something Ellie Boehm would need a license for. 

"They’re perfectly legal under the law, and I don’t know why the Bakers Association is putting their energies into threatening teenagers," said Erica Smith, senior attorney with The Institute for Justice.

Now, the Boehms are joining a lawsuit brought by the Wisconsin Cottage Food Association -- against the Department of Agriculture.

Smith said the state should support, and not restrict young entrepreneurs. 

"During the pandemic, being able to work from home and sell these homemade foods is more important than ever," said Smith.

Ellie has since removed heavy cream from her recipes -- replacing it with water.

In the meantime, the Wisconsin Bakers Association said they were excited to learn of Ellie's interest in the industry, but wanted to make her aware of home baking guidelines and restrictions. 

The Wisconsin Bakers Association Executive Director Jessica Hoover on Monday, March 1 provided the following statement to FOX6 News:

"I contacted Ellie to let her know that we were thrilled to learn of her interest in baking and starting a home bakery. I referred her to the Wisconsin Cottage Food group website as it is an excellent resource for home bakers because some of the fillings of the macarons that were listed on Miss E’s Sweet Treats online order and Facebook page included heavy cream and eggnog in the ingredients listed. While there are many fillings that are not-potentially hazardous, these ingredients cannot safely remain unrefrigerated. In Wisconsin, if you produce potentially hazardous baked goods, you must obtain a license to operate your business.

"A "not-potentially hazardous" baked good is one that can safely remain unrefrigerated. Not-potentially hazardous baked goods have a low moisture content that inhibits mold growth. For example, some baked goods with vegetables as an ingredient such as zucchini bread or pumpkin muffins may not qualify as non-hazardous as they are naturally too moist. Also, baked goods with cream fillings are potentially hazardous and are definitely not allowed under DATCP's current guidelines. We recommend having recipes tested by submitting the recipe to a science lab that can test for the official non-hazardous definition per the FDA Food Code of a "water activity value of 0.85 or less."

"In regards to the lawsuit filed by the Wisconsin Cottage Food Association, the Wisconsin Bakers Association (WBA) stands in accord with the following statement from the Retail Bakers of America (RBA):

"RBA and WBA support all Cottage Industry Bakers and Decorators provided that the laws regulating them are no different than licensed retail bakeries. RBA and WBA oppose all "Cottage Industry" laws that treat home bakers and decorators differently from licensed retail bakeries in these key aspects:

  1. First and foremost, Food Safety and Sanitation laws must be followed by all home baking/decorating facilities.
  2. Home baking/decorating facilities must be licensed by an appropriate government body.
  3. They must be inspected in the same manner and the same frequency as licensed retail bakeries in the same jurisdiction.
  4. They must carry the appropriate insurance (including but not limited to liability and worker’s compensation) for their activities.
  5. They must remit all appropriate taxes in the same manners as a licensed retail bakery.

"Many of our WBA members are small locally-owned "mom and pop shop" retail bakeries (both brick and mortar retail bakeries as well as licensed home commercial kitchen bakeries) who make significant impacts on their communities offering many employment opportunities and generously giving back through donations to local charities and food pantries. Our association supports all bakers - whether they are just getting started in the industry or are a 4th generation family-owned business. The baking industry prides itself on practicing excellent sanitation and producing the highest quality products with the best ingredients."