North Dakota's Food Freedom Law Dodges Another Bullet

The state's food freedom law has been a boon to indie cooks and farmers, and an irritant to regulatory busybodies

Powerful forces in North Dakota have once again targeted the state's popular food freedom law, but it appears the laws' supporters have successfully beaten back these attacks from state lawmakers and regulators.

The 2017 law, found here, "allows direct sales of many foods by a producer in the state to consumers in the state," I wrote last year. "That includes direct sales of virtually any foods—from apple slices to homemade pickles to homemade zucchini bread—except meat or raw dairy products."

In that column, I detailed how North Dakota health regulators were attempting to use the rulemaking process to undermine the law. As I explained, that effort failed in large part due to the fact the law doesn't allow the health department to draft such rules.

But the failure led some lawmakers opposed to food freedom—led by a lawmaker who's also a retired grocery owner and former head of the state's grocers' association, just in case you were wondering how the grocers' lobby feels about a little competition—to attempt to amend the law using the legislative process. Last month, that effort also failed. After the defeat, State Sen. Jerry Klein, the former grocery lobbyist, said he's now merely an "onlooker."

Klein no doubt looked eagerly on as the health department proposed rules once again to neuter the law. Those proposed rules were reviewed by North Dakota's State Health Council, which has oversight authority.

I'm happy to report the latest regulatory effort to destroy the food freedom law also failed.

Genny Dienstmann, a consumer member who chairs the council, confirmed to me by phone this week that the body had tabled the health department's proposed rules and has no current plans to take any further action on them, a big win for food freedom proponents.

Bravo.

Food freedom laws are only growing in popularity, as I detail in my recent book, Biting the Hands that Feed Us: How Fewer, Smarter Laws Would Make Our Food System More Sustainable. Such laws are on the books in a growing number of states, including Wyoming, Utah, and Maine (though the latter differs slightly from others). Nonpartisan groups such as the National Conference of State Legislatures track these laws. ALEC's website features model food freedom legislative language.

The spread of food freedom laws has only been limited by opponents—chiefly advocates for stricter food-safety laws.

Take Food Safety News's Dan Flynn. Not one to traffic in hyperbole, Flynn nevertheless painted the North Dakota legislature's failure to amend the law as a sign that state lawmakers are willing to "risk some botulism once in a while."

He's right. But everyone who eats food—regulated or unregulated—also risks occasional botulism. "Everyone is at risk for foodborne botulism," North Dakota's health department cautions. Along these same lines, a search for the term "botulism" at the website of Marler Clark, the law firm that publishes Food Safety News, yields three search results, each of which involves botulism in foods sold in the regulated commercial marketplace. It appears all lawmakers—those that oppose food freedom laws and those that support them—"risk some botulism once in a while."

I asked Julie Wagendorf, director of the Division of Food and Lodging in the state health department—which, again, opposes the law—if there have been any cases of foodborne illness in North Dakota involving foods sold under the law since it took effect. Wagendorf responded, but she didn't answer that question.

A quick web search revealed that North Dakota has been dealing of late with an outbreak of foodborne illness. It's one of eight states where sushi-grade tuna has been found to harbor Salmonella. But you can't blame the state's food freedom law. Tuna is subject to FDA inspection and is sold commercially, rather than under the state's law.

That said, there's no evidence anyone has ever been sickened by foods sold under a food freedom law.

Given that, do we really need more rules?

Wagendorf insists we do.

"Clarity is needed for what is already stated in law as not authorized under this chapter," she told me by email.

The law's supporters disagree.

"We absolutely do not believe [state lawmakers] have legal authority to write rules for this particular section of [state law]," LeAnn Harner, a North Dakota farmer and key supporter of the state's food freedom law, wrote to me in an email this week. "We believe the current law as passed in 2017 is working. Our producers are doing their very best to produce safe, delicious food and drink products."

"The current law provided much-needed authority to small farm and home business owners to provide healthy, wholesome food directly to their local consumers who prefer such products, and the law should continue to support such efforts," says Alexia Kulwiec, executive director of the Farm-to-Consumer Legal Defense Fund—a nonprofit advocacy group on whose board I serve—in an email to me this week.

I support state food freedom laws because they expand choice, not because no one has ever been sickened by food sold under these laws. Even if a person were to fall ill after eating, say, a homemade pie they bought at a farmer's market—and that will happen someday—I would continue to support such laws. Why?

It's simple. Foods are not legal because they don't ever sicken anyone. By which I mean, countless foods that are produced and inspected according to government regulations and sold in restaurants, groceries, and elsewhere have made people in this country sick. If we banned every last one of the regulated animal and vegetable products that have sickened or killed people over the years, there'd be nothing left to eat. Given the choice between choice and no choice—between food freedom and prohibitive rules—I'll take the former every time.