Virginia Restricts Commercial Speech… About Cake Pops

​Everyone loves cake pops, right? We’re talking about those rounded pieces of cake with icing presented on sticks like lollipops. In the Commonwealth of Virginia, however, there is a bitter taste over what is and what is not protected speech when it comes to cake pops sold by a cottage vendor.
 
The state recently sent an email to Richmond-based baking entrepreneur Kelly Phillips after she posted a social media photo of her homemade baked goods, informing her that she lacked the requisite permits to advertise online. Ms. Phillips runs KP’s Kake Pops, a cottage foods establishment that is exempted from regulation under Virginia Code Section 3.2-5130(C)(3).
 
Virginia’s regulations prohibit home bakers from selling their products online without necessary permits, yet the First Amendment protects the conveyance of true information about lawful products. It’s called commercial speech and there is a whole body of law that backs it up.
 
So, when does posting Facebook photos constitute advertising? How do speech rights in advertising change with the prospect of online marketing? And is banning online advertising constitutional in the first place? The Supreme Court has suggested it is not.  
 
In Virginia, the boundaries are murky. The state exempts cottage food businesses from regulation but prohibits them from online advertising. In Ms. Phillips’ case, roughly half of her sales come from posts she makes on her website and social media accounts, in which she informs followers where she plans to sell her goods at farmers markets. Her website also gives out her contact information for sales.
 
When the Virginia Department of Agriculture and Consumer Services contacted Ms. Phillips, they told her that her products “appear to be for sale for consumers on your Facebook page.” Another state official later confirmed “the VDACS Office of Policy and Planning has clarified that ‘offered for sale’ includes advertising on the Internet.”
 
To be clear, permit requirements are acceptable when a type of consumer good has the potential to be unsafe – particularly if they’re being sold online. At the same time, it’s hard to make the argument that posting a Facebook photo of cake pops and future appearances at community events constitutes sales. As the Institute for Justice recently explained in a letter to VDACS, “[s]elling cottage foods is legal in Virginia, and the First Amendment requires that talking about a legal activity must be legal too. The ban is also a poor policy choice because it stifles Virginians’ ability to start or grow their small businesses.”
 
To be fair, Ms. Phillips apparently has more than 2,000 flavors of cake pops. That sounds like a fairly significant operation. To the extent she’s avoiding regulation, that’s a significant government benefit. Still, Virginia should be required to demonstrate narrow tailoring to advance a substantial government interest if they want to abridge commercial speech.
 
There needs to be more clarity here, and we broadly agree with IJ’s calls for VDACS to rescind any guidance restricting commercial speech. As they write in their letter, “at bottom, VDACS’ policy is that people are free to sell cottage foods at their home or at farmers’ markets but forbidden from posting about that same food on Facebook or Instagram.”
 
When there are such close calls, Protect The 1st recommends leaning in on the side of speech. Besides, more cake pops are an inherent good in and off themselves.