North Dakota

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

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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.

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  1. So foods not prepared under government supervision, and by government-licensed agents, are unsafe?

    Quick! Ban all home cooking, sale of raw ingredients, and confiscate kitchen appliances. Cuz, well, children. And nobody needs an 8 qt saucepan, or an automatic toaster.

  2. I am not optimistic for long term leave-it-alone-ness for anything government rules over. The police power is far too tempting. Not only will busybodies keep poking away, over and over again, but it will only take one alleged food poisoning at a pot luck to scare the wussies into re-regulating everything.

    It’s the nature of government.

  3. The more rules, laws, regulations, gov’t agencies the more opportunity for lobbyists (grocers, etc) to interfere with our individual freedoms. Shopping at farmers markets has become a important part of our lives. Lemonade stands, bake sales, welcome-to-our-neighborhood-brownies are not part of any legitimate, creepy legislative agenda. So let’s go pursue some happiness!

    1. Bureaucracies are positive-feedback loops, but private bureaucracies at least have markets and customers to keep them in check.

      Government doesn’t. Government is limited pretty much only by revolution or invasion … both of which result in a new government which inherits the previous government’s bureaucracy.

  4. […] North Dakota’s Food Freedom Law Dodges Another Bullet   Reason […]

  5. Huh. I guess I didn’t even realize that this was even an issue. We have farmers markets and farm stands everywhere and its been like that for as long as I can remember. We can also buy uncooked meats and raw dairy products directly from farmers.

  6. just before I looked at the paycheck four $6755, I accept that my friend could realey making money in there spare time online.. there friend brother haz done this less than 22 months and resently cleard the morgage on their appartment and purchased a great new Acura. I went here,

    1. Clearly a job that doesn’t require spelling.

  7. Interesting thing about the raw dairy products. I now buy my milk, cream, cheese and smetana (Ukrainian sour cream) at the local bazaar. Cow owners come in with the milk and milk products that they recently collected or made and set up in booths with no electricity, refrigeration or running water. They don’t even use a cooler. The milk literally sits out all day in used water bottles.

    When people come by and want to taste it to see how rich or sweet it is, the vendor takes off the top, pours some milk in it, hands it to the customer who drinks out of the lid. The vendor then puts the lid back on without washing it. No one ever gets sick that I’ve seen and I’ve been here almost a year now. My husband and I have never gotten sick, not even the first time we tried it when you would expect all those new bugs that our bodies weren’t used to wreak havoc on our systems. The meat also sits out all day. Not only that but the pork fat known as salo is eaten raw. It tastes incredible.

    Th problem isn’t that the food we’ve been eating for millennia will easily kill us or make us sick. It takes processing, a long time period between farm and table and huge factories that are hard to clean (yes, I survived the Bluebell Ice Cream shut down) for food to be dangerous. So, big food producers created the environment that creates dangerous food and then made laws to protects us (which are needed for their products), laws that aren’t necessarily needed for the small producer.

  8. I’ve heard of food recalls for meat, produce from big suppliers that operate under FDA supervision. Never heard of anyone getting sick buying at the local produce stand, Farmers market, school bake sale etc.

  9. Americans in general are much too isolated from the outside world to understand just how little we need government oversight of food safety. In a great many countries, government has almost zero involvement in food safety, yet the people are not falling dead in the streets. Mexico has almost no food safety laws, people buy tacos and tortas from street vendors who are unlicensed and unregulated, they buy their meat, cheese, and produce from local markets (usually a municipal mercado with many stalls leased to local producers), and they take it home, clean it with a disinfecting agent that is sold in nearly every grocery (Bacdyn or Microdyn), cook it up and feed it to their families. In the United States, we are content to pay billions of dollars in taxes for the Government to provide us with the illusion of safety just so we don’t have to take responsibility for our own lives.

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