Court: Lincoln cottage food lawsuit can move forward

A lawsuit over city ordinances imposed on home bakers and cottage food producers in Lincoln can move forward. Lancaster County District Court Judge John A. Colborn rejected the city’s motion to dismiss the lawsuit, which was filed by area home baker Cindy Harper earlier this year.

The city had shut down Harper’s home-based baking operation, which was fully legalized in Nebraska after the passage of Legislative Bill 304. The law expanded Nebraska’s cottage food law, allowing certain classes of shelf-stable foods to be made and sold from home. Previously, products like homemade bread, cookies, and jams could only be sold lawfully at farmers markets.

Under the new state law, cottage food operations must register with the Nebraska Department of Agriculture and producers must take a food safety course. Cottage foods cannot be sold at stores or restaurants, only directly to consumers, who must be informed the products are not made in commercially inspected kitchens. More than 200 Nebraska cottage food producers have now registered with the state.

The shutdown of Harper’s home business came as a result of Lincoln attempting to implement its own cottage food ordinance, which would require local fees and inspections of cottage food operations not required under the state law. Harper’s lawsuit asks the court to strike down Lincoln’s ordinance, claiming the state cottage food law preempts the local rules since the state clearly defines cottage food operations as being different from other food-selling businesses, in that they are not meant to be regulated or inspected.

Without ruling on the issue itself, in his dismissal of the city’s request to scrap the lawsuit, Judge Colborn noted that Harper’s case for a state preemption is “plausible.”

The court’s order noted that state law does not automatically preempt local ordinances just because local rules are more restrictive than the state, but the fact that the cottage food law outlines that cottage producers must disclaim that their products are not subject to regulatory authorities means “there seems to be some tension,” between the state law and the local ordinance, the judge wrote.

“I’m happy to be moving forward in this process,” said Harper. “It’s good to be one step closer to the elimination of the unfair and inequitable regulations that Lincoln is imposing on its residents.” 

“Lincoln’s ordinance is an affront to local home bakers,” said IJ attorney Keith Neely. “Home-baked goods are just as safe in Lincoln as they are in the rest of Nebraska and the legislature intended to give home bakers the same opportunity to sell their goods whether they live in Lincoln, or Omaha, or Bellevue.”