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North Dakota Regulators Are Going After the State's Food Freedom Law—Again

The state health department can't stop meddling with cottage bakers

Nat and Cody Gantz/NewscomNat and Cody Gantz/NewscomReports surfaced this week North Dakota's great Food Freedom Act, which became law last year, could be watered down by overbearing state regulators. Adding to the concern, a Bismarck paper recently endorsed the basic outline of such rules.

North Dakota's food freedom law allows direct sales of many foods by a producer in the state to consumers in the state. That includes direct sales of virtually any foods—from apple slices to homemade pickles to homemade zucchini bread—except meat or raw dairy products.

North Dakota's law is the nation's third bi-partisan food freedom law—after Wyoming's and Colorado's—as I detailed in a column last year. Maine's food sovereignty law contains many of the same elements, but differs because it allows local municipalities to opt into the law.

The North Dakota's law has many success stories, such as this one, but it continues to face threats made by the state's overbearing health department and other opponents.

Just this past February, the state health department proposed rules that supporters of the law argued "would block much of what they hoped to accomplish" by passing the law in the first place.

AgWeek reports that the proposed rules would have "prohibit[ed] sales of dehydrated items without checks on water levels, refrigerated goods that aren't kept frozen before selling, and home canned goods that don't use approved recipes or include nonacidic canned foods, such as green beans. The rules also laid out requirements for labeling."

Then, in March, the Institute for Justice (IJ) sent a letter to North Dakota lawmakers, regulators, and Food Freedom Act supporters stating that the rules the agency had proposed to adopt went against the letter and spirit of the law.

The law is clear that regulations of the sort proposed by the health department are not permissible. The law states that "any cottage food product or food sold under this section is not certified, labeled, licensed, packaged, regulated, or inspected." It also orders that "a state agency or political subdivision may not require licensure, permitting, certification, inspection, packaging, or labeling that pertains to the preparation or sale of cottage food products under this section." This language, along with the law's requirement that producers inform consumers that the foods they sell are "not licensed, regulated, or inspected," makes it clear the state legislature intended that foods sold under the Food Freedom Act not be subject to regulations.

In the wake of IJ's letter, which the state took as an intent by IJ to sue should the health department should it adopt the rules, state lawmakers met with the health department, which agreed to scrap its plans.

That was good news. But after taking one step back, the health department now appears emboldened to take two lousy steps forward. Their angle of attack is language in the law pertaining to "baked goods, jams, jellies, and other food and drink products produced by a cottage food operator." The health department may attempt to define—and, hence, limit—the meaning of "other food and drink products."

The state's second-largest paper, the Bismarck Tribune, recently came out in support of adopting rules because "it's possible problems could arise with cottage foods."

Earlier this week, I spoke with LeAnn Harner, who owns Harner Farm in Mandan, North Dakota, and is a key supporter of the state's food freedom law.

"There is no part of this section of North Dakota state law that allows the health department to draft rules," Harner tells me. "They want to eliminate any refrigerated foods, any cut vegetables—tossed salad, baked beans, potato salad, or any of those kinds of foods."

Pete Kennedy, an attorney with the Weston A. Price Foundation, sees things similarly.

"Issuing regulations would likely keep some quality cottage food producers out of the market because of the cost of compliance in an area where there have been no food safety problems," Kennedy tells me.

One key opponent of the law is the North Dakota Grocers Association, which said in a May newsletter that the group "apposed (sic) this bill and will work with the ND Department of Health to fix or repeal this legislation." Competition is a beast.

As I noted in my column on the North Dakota law last year, food freedom laws have been successful and continue to spread because they expand choices for farmers, home-based entrepreneurs, and consumers; haven't led to negative food-safety outcomes; and enjoy bipartisan support.

But their opponents—namely state health departments and competing food sellers, such as the North Dakota grocers—continue to fight these laws. That's because these laws are a boon wherever they've been passed. They're intended to eliminate red tape, not to create new barriers. We need more such laws and not mindless restrictions that water down the considerable benefits of food freedom legislation.

Photo Credit: Nat and Cody Gantz/Newscom

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  • Longtobefree||

    Matbe the food freedom laws need a section eliminating the health departments.

  • perlchpr||

    "In accordance with this law that absolutely forbids us to require labels on this particular class of items for sale, we're going to require labels on that class of items."

    Yeah. These fuckers need chipping.

  • JFree||

    These laws are usually limited to direct producer-to-consumer interactions - eg farmers markets - or thru intermediaries who are powerful enough relative to the producer that they don't need 'protecting'.

    What prob needs to happen is that those market venues themselves need to embrace and defend the freedom of the small producers they are showcasing - and assure consumers that the market venue itself is a place that has standards.

    In a food freedom environment, a 'marketplace' is not simply a lazy landlord renting stalls. It is a place that sets - and enforces - its own regulations about how commerce will occur there. That is what happened BEFORE we had top-down regulation from a distance - and it needs to return if we are to get rid of the top-down stuff. You can see remnants of it in historic marketplaces - central scales where consumers can weigh stuff themselves to verify that the producers scales aren't rigged; a place where an ombudsman can take complaints or adjudicate minor disputes. The marketplaces that did this well - earned reputations that, literally, set standards we still know about - eg Troy ounces from the Troyes market. The ones that didn't - well guess what, that's why pressure started to do all this stuff top-down.

    That ombudsman or customer service stall would also be where the marketplace and producers can push back against bureaucrats. By informing customers of exactly how the freedom of that specific marketplace is being restricted

  • Longtobefree||

    "matbe" is derived from the root word "maybe".

  • Echo Chamber||

    along with 'maube' and 'mulva'

  • loveconstitution1789||

    along with mucduc.

  • DRS||

    Having worked in food manufacturing for the last 30 years I am all for food freedom and deregulation but these laws, as presently being written, get it backwards.

    The entities with the greatest financial and reputation stake in ensuring that their product is safe and properly prepared are the large entities. The smaller the producer the less they have at stake should they have a food quality or food safety problem. So this law rewards those who have little to lose and disadvantages those who, because of the magnitude of their investment, already self regulate out of enlightened self interest.

    This also is the norm in environmental regulations where the small non-point discharges are unregulated (but are the greater problem) and the big point sources get all the onerous regulations even though they are not the real culprit.

  • Rev. Arthur L. Kirkland||

    If a "cottage food" business possesses adequate insurance, provides proper labels, and is obligated to comply with inspections, it is a legitimate business and should be permitted to offer its goods for sale to the public.

    Otherwise, it is not a legitimate business and should be permitted to offer its goods to the public without charge.

    Special privilege for haphazard, irresponsible operations is daft.

  • prolefeed||

    The stuff you propose is a privilege all right - for the large businesses trying to stamp out upstart competitors.

    Freedom isn't a privilege, it's a right.

  • Rev. Arthur L. Kirkland||

    I gather you also are a fan of "cottage" surgical facilities, televised faith-healers, unlicensed pharmaceutical manufacturers, self-trained pilots, and unaccredited educational institutions?

  • perlchpr||

    5/10 needs more sneering

  • prolefeed||

    If by that biased framing you actually mean, do I want to NOT have the blunt force of government used to prop up cartels and squelch competition so crony capitalists can overcharge for services -- oh hell yes. Yes yes yes. Please.

  • Rev. Arthur L. Kirkland||

    Prepare for a life at society's disaffected fringe.

    Maybe, if you are anti-social enough, you will enjoy it.

  • prolefeed||

    You seem to be under the impression that fractional slavery produces better outcomes than freedom, evidence be damned.

    Cause nothing improves the lot of poor people than overpriced medical care from a cartel backed by brute force. You'd have to be antisocial to want that dismantled.

    /sarc

  • Rev. Arthur L. Kirkland||

    People who wish to be taken seriously by society's effective elements do not advocate against food safety laws. Sane people do not support unlicensed surgery facilities.

    In a free society, however, deservedly irrelevant people and daft people are free to express themselves. Some would contend that enabling the losers to self-identify in this context is valuable, if not invaluable.

  • croaker||

    Suck my dick, slaver!

  • loveconstitution1789||

    MAGA

  • perlchpr||

    6/10

  • Scarecrow Repair & Chippering||

    All backwards. This was my expectation based on how you start your comment: "I am all for food freedom and deregulation but ..."

    And then you claim that small family cottage food sellers have nothing to lose from selling unsafe food. No financial stake, no reputation.

    Have you ever potlucked? Even been invited to dinner by friends? There are some people who gain reputations for unclean dishes, hairs in the food, always wiping their nose on their shirt sleeves or smoking while cooking ... and their friends and neighbors notice and gossip.

    No, I think you are an industry shill. A statist in disguise. And not a very good troll at that.

    Fuck off, slaver.

  • Rev. Arthur L. Kirkland||

    You are a disaffected, anti-social malcontent who is willing to expose the public to avoidable risk because you have been unable to succeed in a society that rewards accomplishment, humanity, and cooperation.

    Society has been telling guys like you to fuck off throughout our lifetimes. You can't handle it, and your inability to build productive relationships with other people makes life more difficult. Of course you are resentful toward your betters.

    Tough.

  • perlchpr||

    7/10 this is the sort of sneering I'm talking about

  • croaker||

    Putting himself at the front of the line for a woodchipper.

  • Scarecrow Repair & Chippering||

    What, I don't even rate a bitter clingers comment? Sad.

  • Rev. Arthur L. Kirkland||

    My physician indicated I might be overusing my 'carry on, clingers' muscle.

    But he went to an Ivy League school, rather than a backwater religious college after homeschooling, so I wonder whether I should trust him.

  • Echo Chamber||

    Doctor mistakes are one of the leading causes of death, so I'd say no, don't trust him

  • Longtobefree||

    I thought old age was the leading cause of death, despite the doctors.

  • Rev. Arthur L. Kirkland||

    Doctor mistakes are one of the leading causes of death, so I'd say no, don't trust him

    That level of reasoning would qualify a middle school student for remedial classes.

  • Sevo||

    Rev. Arthur L. Kirkland|7.21.18 @ 12:56PM|#
    "My physician indicated I might be overusing my 'carry on, clingers' muscle."

    Well, your brain is certainly getting a rest, asshole.

  • Rev. Arthur L. Kirkland||

    Quite a zinger, Sevo. You could have been a spokesman for a Ron Paul campaign . . . or second-shift tender of a Mike Cernovich account.

  • loveconstitution1789||

    MAGA

  • Rev. Arthur L. Kirkland||

    "Libertarians" who favor authoritarian immigration policies while opposing food safety laws are among my favorite faux libertarians because those right-wing goobers are easily discredited.

    Carry on, clingers.

  • Ricardo Vacilon||

    I don't know if I'd want to live in a society where people I've never met or voted for get to decide how much risk I'm allowed to assume. I think that might make me "malcontented."

  • Rev. Arthur L. Kirkland||

    Don't like securities laws, our government-administered food safety system, pharmaceutical regulations, and the like?

    Why do hate America?

  • BestUsedCarSales||

    I like the ability to so choose to not use it. Which is the thing being advocated here. Why do you hate choice?

  • loveconstitution1789||

    MAGA

  • C. S. P. Schofield||

    The government does few things well and many things badly. We have seen plenty of evidence in recent years that government oversight does not ensure safe food. It DOES insure that the barriers to competition with established companies remain high. Pardon me if I doubt that is a good thing.

    We have food regulators shutting down children's lemonade stands. That is absurd. We have food regulations preventing people from cooking for the homeless unless they have a full scale industrial kitchen. That is barbarous.

    The State is too big, too busy, too immune from criticism, and too expensive. It must be trimmed.

    The 20th Century proves beyond reasonable doubt that a near all-powerful State run by bureaucrats did not produce paradise, but more or less the opposite. Even where Socialism (which is another word for Statism) did not result in mass murder and almost universal misery, it caused stagnation and poverty.

    Or, in other words, Fuck off Slaver.

  • Rev. Arthur L. Kirkland||

    With that approach, you can try (and fail miserably) to rework America into congruence with your preferences.

    Or you could move in search of a society more to your liking.

    Or, as I predict, you could continue to mutter inconsequentially and bitterly about all of this damned progress, modernity, order, and success in America.

  • croaker||

    Or we can decide we've had enough and start shooting fuckers like you.

  • Rev. Arthur L. Kirkland||

    That kind of talk might go over well among the half-educated bigots at your backwoods militia meeting, but after watching yahoos like you get progress shoved down their submissive throats by their betters for at least a half-century I don't think your whining means much.

    'Why, one of these days, I'm gonna, if these liberals keep it up, all this progress and tolerance and science and education, well, I just might' . . . . keep whimpering like a disaffected loser.

    Carry on, all-talk right-wing yahoo.

  • loveconstitution1789||

    MAGA

  • DRS||

    I think you misunderstand my intended point or I communicated it poorly...I want deregulation (food freedom) for all not just for those arbitrarily defined as a "cottage producer" by the government.

  • LarryA||

    The entities with the greatest financial and reputation stake in ensuring that their product is safe and properly prepared are the large entities. The smaller the producer the less they have at stake should they have a food quality or food safety problem.

    Exactly backwards.

    Big Chain Grocery Stores has a battalion of lawyers to fight lawsuits. If they can't win, they have boatloads of cash to pay off victims. When a problem arises, they can afford to recall and dispose of all the product. (As our local stores are doing with two products right now.)

    A couple of months ago our local grocery had an overnight refrigeration fail. They threw out hundreds of pounds of meat that might be bad. Two days later their refrigerated shelves had been replaced and new meat shipped in to fill them.

    Small producers work on small margins. One big problem, their fault or not, and they're out of business. Even worse, they aren't employees. If a grocery store gets shut down the manager might lose his job. Owners of small businesses may lose everything they own.

  • Scarecrow Repair & Chippering||

    Big stores can also push off the blame to suppliers and let them twist in the wind. Cottage food makers are directly accountable.

  • Agammamon||

    The smaller the producer and the easier it is for market forces to screw them up badly for a mistake. How many times has Chipotle had to deal with salmonella outbreaks? Lot's - because its has the money to weather the bad PR and its suppliers are unknown to us.

    Having worked with small restaurants for several years now, believe me - if someone claims that aunt Matilda's pickled relish made them a little ill, people are going to avoid it like the plague. Even if it had nothing to do with that person's queasiness.

  • Trainer||

    I know! I'm all for it too! I mean, if all those dead people don't stop someone from buying an unregulated product, then the government just has to step in just like they did when people died eating Blue Bell ice cream, the tainted spinach, water melons and cheeses from those highly regulated companies.

  • Hank Phillips||

    "Freedom" is the problem among NoDaks. The word connotes a dire shortage of coercion, compulsion and application of deadly force that is simply incompatible with a planned and mixed economy.

  • Trollificus||

    I don't know if it's so much their commitment to "planned and mixed economy" as to their fondness for the white collar jobs provided to PoliSci and PublicAdmin majors in the agencies that enforce and generate the ever-more-stultifying rules and regulations that plague America. The corporate cronyism and political corruption we see are just artifacts of the main endeavor, which is keeping those jobs.

    Hell, I'm sure they might as easily work in the interests of consumers and citizens, if their jobs were thereby secured and departmental budgets guaranteed an increase. That never happens, though.

  • croaker||

    The simple solution is to shoot the bodies willing to fill those jobs. And it may yet come to that.

  • Rev. Arthur L. Kirkland||

    By all means, croaker, go the Full LaVoy . . . be our guest.

  • No Yards Penalty||

    About 20 years ago the Alberta government banned nanaimo bar at church bake sales. Why? Cause the original recipe calls for egg - maybe raw, in fact. The AB govt couldn't risk even one citizen joining the 0 who had died from tainted nanaimo bar in the long history of the province.

    A friend had a farm-based butcher shop, his ''sales'' strictly to the farmer who had provided the cow or pig in the first place. Ag dept flunky comes out, takes the tape measure out, and despite there being a huge stainless steel sink right where my buddy cut meat and fanatically cleaned up, and despite there being a bathroom with hot running water not 20 feet away, declared the shop needed another sink for washing up. For who? Imaginary people, I guess. It was a rule and rules must be followed.

  • steve walsh||

    Regulators got to regulate, it's what they are hired to do. In order to get rid of the regulations you have to also eliminate the people whose job it is to oversee and regulate.

  • croaker||

    Find out where they live, and bombard them with recordings of woodchippers and screaming.

  • croaker||

    Seems to me these jokers can't take a hint. Fire up the woodchippers.

  • Rev. Arthur L. Kirkland||

    Open wider, goober. Your betters have more progress to shove down your right-wing throat, and if you don't stop whining we may start making it sideways.

  • jotilubar5656||

  • Liberty Lover||

    It is fine if big agri-business poisons you, but we can't have small cottage industry producers doing the same thing. You see those small producers don't contribute large amounts of money to re-election campaigns.

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