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This baker got the official OK to make boozy cupcakes. Then she was told they're illegal.

USA TODAY logo USA TODAY 2/12/2018 Patrick Anderson

a cake with a dessert on a plate: Intoxibakes, an online cupcake, pie and cheesecake bakery that delivers in the Sioux Falls, S.D., area has 10 varieties of cupcakes whose ingredients include bourbon, rum, vodka, red wine or amaretto and other alcohols for flavoring.

Intoxibakes, an online cupcake, pie and cheesecake bakery that delivers in the Sioux Falls, S.D., area has 10 varieties of cupcakes whose ingredients include bourbon, rum, vodka, red wine or amaretto and other alcohols for flavoring.
© Courtesy of Intoxibakes

SIOUX FALLS, S.D. — One woman's online boozy cupcake business has brushed up against bureaucracy — after she received OKs from city officials and state regulators this past fall.

Holly Boltjes' small business doesn't hide its alcohol: The name of the company, which opened in November, is Intoxibakes, and Boltjes spent most of last year perfecting the recipes with her daughter and daughter-in-law, who are co-owners.

“We called every agency,” Boltjes said. They wanted to make sure that the two teaspoons of alcohol per dozen cupcakes and trace amounts of liquor in the frosting weren't in violation of state law or would require a liquor license.

Sioux Falls city officials signed off as did the South Dakota Department of Revenue.

Oct. 12: Cleveland's Brewnuts makes doughnuts with beer

Then this month Jamie Palmer, the licensing specialist in the Sioux Falls City Attorney's Office, decided to weigh in. Intoxibakes is in violation of South Dakota Code, a section designed to stop producers from adding harmful substances to food, she said.

“It clearly says ‘adulterated’ if it contains any vinous, malt or spirituous liquor or drug,” Palmer said.

39-4-3. Ingredients constituting adulteration of confectionery. For the purposes of this title a confectionery shall be deemed to be adulterated if it contains:

(1) Terra alba, barytes, talc, paraffin, chrome yellow, or other mineral substance or poisonous color or flavor, or other ingredient deleterious or detrimental to health; or

(2) Any vinous, malt, or spirituous liquor or compound or narcotic drug.

Intoxibakes is hardly the first South Dakota eatery to prepare desserts with alcohol. Vanilla extract is required to contain at least 35% alcohol under federal law and is a common ingredient in baked goods.

Malt liquor, mentioned in the statute, can contain as little as 5% alcohol.

“I’m not quite sure what changed,” Boltjes said of her cupcakes. "You're not getting any measurable amount of alcohol. It’s just for flavor."

The beer-battered fish & chips at one craft brewery here is apparently safe because it would not be considered a confection. But the crepes with triple sec, sherry and brandy at a local breakfast spot? Maybe not.

And grandma's rum balls or fruitcake would cross the line if she were to open up shop.

The rule mirrors requirements the federal Food and Drug Administration designed to protect consumers from food poisoning or ingesting dangerous substances. Typically, an adulterated food item has been contaminated with an element as dangerous as E. coli, said Bill Marler, a food safety lawyer based in Seattle.

“Or rat poison got put in it by mistake, or metal shavings or plastic,” Marler said. “That’s the way that typically most people in the field would look at it.”

Alcohol is generally considered a “safe” food product, he said.

Before Boltjes opened for business, she and her family set a 21-and-older age restriction on sales.

“We were never told we had to,” Boltjes said.

Marler, who represented victims in the 1993 E. coli outbreak caused by Jack-in-the-Box beef patties, said it would be hard to describe alcohol-infused cupcakes as “adulterated,” especially if customers know what they’re getting.

He called the city’s interpretation “incredibly broad.”

“My view is there are certainly way more important things for the FDA to concern themselves with than whether or not there’s a little bit of alcohol in a brownie or a cupcake,” Marler said.

Palmer's department doesn't enforce the law, and she said wasn't sure which department would oversee the law restricting alcohol use in sweets. She merely sent Boltjes a copy of the statutes.

But that warning, which also mentioned that baking cupcakes with alcohol is a Class 2 misdemeanor, was enough for Boltjes to shut down her new business — in the middle of Valentine's Day ordering — until she and her family learn more about the law.

“Obviously, we’re a little upset. We want to continue with the business,” Boltjes said. “We’re also optimistic that we’ll be able to work something out with the city.”

Related video: These cupcakes are for Kahlua lovers only (provided by Delish)

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