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Pickle Fight Reveals the Destructive Pettiness of Texas Food Regulators

In an effort to preserve its regulatory power, the Department of State Health Services refuses to concede that you can pickle foods other than cucumbers.

Stock Food/NewscomStock Food/Newscom"Cottage food" laws let hobbyists sell baked and preserved goods in legal markets without regulatory interference. Unless, of course, the regulators try to get pedantic about the letter of the law.

As Reason columnist Baylen Linnekin reports in a piece for The New Food Economy, the Texas Department of State Health Services is claiming that only cucumbers can be called "pickles." Any other fruit or vegetable preserved in brine or vinegar is not technically a pickle, the agency insists, and thus is not covered by the state's cottage food law. The department has thus prohibited retirees Anita Patton-McHaney and James McHaney from selling pickled beets.

Here's Linnekin:

According to the Department of State Health Services, a "pickle" is a "cucumber preserved in vinegar, brine, or similar solution, and excluding all other pickled vegetables." In case that leaves any room for doubt, the agency makes things very clear in the FAQ posted on its website: "Only pickled cucumbers are allowed," it says. "All other pickled vegetables are prohibited."

"The purpose of food safety laws, including the Texas Cottage Foods Law, is to help make sure food being sold to the public doesn't make people sick and that the people preparing food that could be hazardous have the training to do so safely," says Chris Van Deusen, director of media relations with the Texas Department of State Health Services, in a recent email to me. "The law says pickles may be sold by unlicensed and uninspected producers but doesn't mention other pickled products. Since we didn't want to interpret something that wasn't there, we used the most common definition of pickles when we implemented the law in 2013."

The health department flack is being deeply disingenuous here. As Linnekin notes, what makes a pickled product safe is not the specific vegetable but the pH level of the solution. A pH below 4.6 means the solution is acidic, and acidic solutions kill harmful bacteria. While beets are naturally less acidic than some other vegetables, the "training" necessary to increase their acidity is also required for cucumbers, as well as carrots, okra, peppers, etc. You can learn this stuff online in a few minutes, or from cookbooks dating back to the 19th century.

Because the probability of infecting someone with a bacteria like the one that causes botulism (which is what most people worry about when canning and preserving veggies) has less to do with the vegetable than with the method of preparation, insisting that only pickled cucumbers are covered by the Texas Cottage Foods Law does not guarantee that everyone who decides to pickle and sell cucumbers under the law will do so correctly. But it seems most people are doing it well enough. The Centers for Disease Control (CDC) has recorded fewer than 200 cases of botulism across the entire U.S. each year, going back to at least 2001, and fewer than two dozen cases each year involve food.

The vast majority of botulism cases are diagnosed in infants and are unrelated to canned goods. The cases that involve both adults and food products prepared at home tend to reflect the kind of carelessness that you generally don't see in the cottage food economy, which no regulator can prevent—for example, the case of "beets roasted in aluminum foil and kept at room temperature for several days then made into a soup," which caused two Utah residents to develop botulism in July 2015.

You'd think a regulatory body operated by health experts would take all these factors into consideration, especially given the linguistic shakiness of insisting that only cucumbers can be pickles. But no. The McHaneys had to file suit against the Texas Department of State Health Services. Throwing this question to the courts doesn't seem like the wisest solution, though I suspect hours of oral argument over what constitutes a pickle could be pretty entertaining.

The more troubling phenomenon, and one Linnekin has documented very recently for Reason, is the willingness of health departments to intentionally misinterpret laws that disempower them. You'll note that I said troubling, not surprising.

Photo Credit: Stock Food/Newscom

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  • Fist of Etiquette||

    Wait a minute. Pickles are just cucumbers? Yuck.

  • Bee Tagger||

    another beta cuckolded by cucumbers

  • Chipper Jones||

    Pickle Rick hardest hit.

  • $park¥ The Misanthrope||

    Bring on the pickle smugglers.

  • Diane Reynolds (Paul.)||

    "beets roasted in aluminum foil and kept at room temperature for several days then made into a soup,"

    Kayyy.

  • Rich||

    Follow the money.

  • Rhywun||

    Shhh!

    /Big Pickle

  • jph12||

    "the linguistic shakiness of insisting that only cucumbers can be pickles"

    What linguistic shakiness? Is there really any doubt that in 2013 "pickle", by itself, referred to a pickled cucumber? I'm pretty sure that any restaurant that wanted to use pickled beets on top of its hamburgers would feel obligated to list them as pickled beets rather than just pickles, and that goes for all of the other pickled products as well.

    The silliness is in drafting a law to refer to pickles rather than pickled products, not the agency's interpretation.

  • Rhywun||

    Yep, I have to agree.

    Similar to how we were supposed to be up in arms when that fake "mayonnaise" product tried to pass itself off as mayonnaise and the poo-bahs pointed out that mayo has to have eggs.

    Just because the bureaucrats are idiots doesn't mean we have to pretend that pickles aren't cucumbers or mayo isn't eggs.

  • Agammamon||

    yes. tons.

  • Rossami||

    There is a high-end burger bar in Cleveland (run by a former Iron Chef) with a well-advertised all-you-can-eat "pickle bar". Very few of the things on that bar started as cucumbers.

    While I agree that the law could have been drafted more clearly, I am not willing to grant any deference to the self-serving interpretation of a bunch of bureaucratic busybodies.

  • jph12||

    "There is a high-end burger bar in Cleveland (run by a former Iron Chef) with a well-advertised all-you-can-eat "pickle bar". Very few of the things on that bar started as cucumbers."

    Cleveland, Texas? Because folks up in Ohio do all kinds of unnatural things with food, like putting beans in their chili.

    "While I agree that the law could have been drafted more clearly, I am not willing to grant any deference to the self-serving interpretation of a bunch of bureaucratic busybodies."

    Neither am I. That's why I want them to interpret this law the same way every other law and constitutional provision should be interpreted, by its original public meaning. And unfortunately, here the original public meaning of "a pickle" in Texas in 2013 almost certainly referred to a pickled cucumber.

  • Agammamon||

    Personally, I'm for the interpretation that maximizes individual liberty - and that one is the one where pickle is used like its used in all sorts of places, to refer to pickled food on general.

  • jph12||

    So when you want your Whataburger with just pickled jalapenos and not pickled cucumbers (I would note that the Whataburger website simply calls these pickles), you ask them to hold the pickles and add pickles? That seems mighty confusing. Pickles aren't Coke.

    I don't believe that individual liberty is maximized by allowing agencies, or courts, to ignore the original public meaning of the statute.

  • prolefeed||

    Is there really any doubt that in 2013 "pickle", by itself, referred to a pickled cucumber?

    Merriam-Webster begs to disagree with your lack of doubt:

    "1
    pickle
    noun pick·le \ ˈpi-kəl \
    Popularity: Bottom 40% of words
    TRENDING NOW:
    emolument
    troll
    exculpatory
    ideologue
    socialism
    SEE ALL


    Definition of pickle
    1 : a solution or bath for preserving or cleaning: such as
    a : a brine or vinegar solution in which foods are preserved
    b : any of various baths used in industrial cleaning or processing
    2 : a difficult situation : plight
    could see no way out of the pickle I was in —R. L. Stevenson
    3 : an article of food that has been preserved in brine or in vinegar; specifically : a cucumber that has been so preserved"

    I'm thinking this might get litigated, and the state might lose. Or the legislature could step in and amend the law so the DOHS can't be such dicks.

  • jph12||

    "Merriam-Webster begs to disagree with your lack of doubt:"

    Where? Definition 3 is the only applicable definition (there's no doubt the statute is not referring to either the brine, industrial baths, or difficult situations) and it says "specifically : a cucumber that has been so preserved." That supports my position, which is based on the ordinary everyday usage of the term.

  • prolefeed||

    Apparently, English is hard. Definition 3 says that ANY article of food that has been preserved in brine or vinegar could be considered a pickle, and if that article of food is a cucumber, it definitely is a pickle.

    And, if a law is written ambiguously, courts tend to side with the interpretation that favors the defendant.

  • jph12||

    "Apparently, English is hard."

    Apparently. I never thought I would see the day when so many English speakers pretended not to what a people consider a pickle. I'm not denying that you could call something else a pickle, just that you will confuse the average person if you do so. Show me a restaurant menu that refers to anything other than a pickled cucumber as a pickle.

    "And, if a law is written ambiguously, courts tend to side with the interpretation that favors the defendant."

    You realize, of course, that the defendant in this case is the state of Texas. And you are incorrect. This isn't a criminal or quasi-criminal (administrative enforcement) trial. In civil lawsuits regarding constitutional challenges to laws regulating health and safety based on economic rights, courts go out of their way to find the statute constitutional.

  • Longtobefree||

    According to the Department of State Health Services, - - -
    Stop. Just stop right there.
    Really? In Texas? Have ALL the ropes and horses gone? No more trees anywhere?

  • Happy Chandler||

    People have this aversion to food poisoning. If the department didn't exist, an overwhelming majority would demand it. That's how food regulations came into being. People don't like dying.

  • Hamster of Doom||

    LOL.

    Well, thank God we cured that.

  • Agammamon||

    Kind of like how the Department of Complying With Religious Food Preparation Requirements was formed.

    Because fuck knows the joos and mooslims could never manage to set up private certifying agencies.

    I mram, that's why Underwriters Lab went out of business - they just couldn't provide the level of service a gpvernment agency could.

  • Happy Chandler||

    I thought this was what the libertarian wanted. The agency has no role in making the law, enforcing it.
    If the legislature intended all pickled vegetables to count, then the legislature should have said pickled vegetables. In fact, it would be an easy fix to the law. Submit a law to modify the code where it says "pickles" and change it to "pickled vegetables."

    I checked a couple different dictionaries.
    Merriam-Webster: An article of food that has been preserved in brine or in vinegar; specifically : a cucumber that has been so preserved (ambiguous whether pickled beets are pickles, or if they are pickled beets).

    OED: North American count noun A pickled cucumber. (Explicitly backs the Texas rule).

    Dictionary.com:
    1. a cucumber that has been preserved in brine, vinegar, or the like.
    2. Often pickles. any other vegetable, as cauliflower, celery, etc., preserved in vinegar and eaten as a relish.
    3. something preserved in a brine or marinade.

    Definition 1 matches the TX law.

    The legislature should fix the law.

  • TrickyVic (old school)||

    3. something preserved in a brine or marinade.

    That very explicitly means other than cucumbers would be included.

    Pickled peppers is something my grandmother made. Also a great pepper relish.

    The libertarian position is that there shouldn't be law against pickling any food.

  • Happy Chandler||

    That's definition 3. Why choose that over definition 1, unless you are asking the unelected bureaucrats to make policy that you agree with?

    Your grandma made pickled peppers. Those are pickled peppers, not pickles. You didn't say she made pickles, which are commonly understood, and have the first definition to be pickled cucumbers. Therefore, not part of the cottage food laws.

    If you don't like the law, the legislature should change it, not have the bureaucrats make a tortured reading. The legislature should amend the law to say pickled vegetables if that's what they mean.

  • TrickyVic (old school)||

    ""That's definition 3. Why choose that over definition 1, unless you are asking the unelected bureaucrats to make policy that you agree with?""

    Because it's one of the definitions available for choice. The proper question is why is it excluded.

  • TrickyVic (old school)||

    Your argument supports government turning a blind eye to legitimate definitions and using only the definition to make policy which they want to enforce. Perhaps they should be honest about the full definition.

  • Agammamon||

    why *exclude* definition 3? why the assumption that the order of an online dictionary has any merit?

  • Agammamon||

    why are you supporting an interprative policy that is not the one that strives to maximize individual liberty?

    because that's what your 'pickles are only cucumbers even though pickles is used as a generic word for all pickled goods according to the same source' policy is doing.

  • Happy Chandler||

    The most common definition of pickles is pickled cucumbers.
    I've never asked for pickled cucumbers. I've asked for pickled vegetables, pickled peppers, etc.

  • Agammamon||

    tons of the rest of us have.

  • SIV||

    I'm sure vegans would enjoy pickled pigs feet, pickled sausage and pickled eggs.

  • Robert||

    Same logic as those who say "marriage", "married", "spouse", etc. should take as its legal meaning as including what some dictionaries say, i.e. something like or analogous to a marriage, spouse, etc.

  • Echospinner||

    Not only that but governments like expert opinion. So I went to Izzy's deli and ordered the pickle tray. Izzy is widely respected in the community in such matters. It included not only pickled cucumbers but also pickled tomatoes and peppers. Case closed.

  • Agammamon||

    no, definition 1 matches the dept of health services *interpretation* of the law.

    all the definitions match the law. and none of them are contradictory

    as definition 2 points out, 'pickles' is still used - commonly in some areas, as a reference to pickled food in general. and not just pickled vegetables but fruit and meats too.

  • Hamster of Doom||

    Riggs is correct. This is a giggle. Pickle is a process. Hell, it can also be a liquid solution, a dry seasoning. If 'pickle' in a cook's lexicon were an analogous English word, that word might be 'fuck'.*

    Bobby Flay and his fire-roasted red pepper-cranberry salsa need to be warned.

    *For versatility, not for frequency. For frequency, that word would also be 'fuck', only without the analogy.

  • Hamster of Doom||

    Alternate comment:

    COME AND TAKE IT

    *red pepper ketchup*

  • Hamster of Doom||

    Peter Piper picked a peck of pickled [redacted due to federal regulations].

  • Fats of Fury||

    But if Peter Puffer packed a peck of pickled peppers up his pooper it would be his constitutional right..

  • Griffin3||

    Watermelon pickles are delicious enough to single-handedly destroy all of the "Department of State Health Services"s spurious rationalization on this subject.
    I am from West Florida, and I approve this message.

  • An Owl Named Dur||

    I pickled my liver. Is that going to be a problem?

  • General_Tso||

    Provided you refer to it as a 'pickled liver', no.

  • Rhywun||

    I'll bring the fava beans and chianti.

  • Echospinner||

    Is there a magic moment where the cucumber soaking in brine becomes a pickle? These are deep questions.

  • Juice||

    Wait. So they aren't allowed to sell them at all because they are "pickled" and the only thing that's "pickled" are pickled cucumbers? But if the only thing that could possibly be pickled are cucumbers, so these beets couldn't possibly be pickled, therefore they should be legal to sell. Unless you use cop logic, I guess.

    Anyway, can't they sell them as "preserved" beets instead?

  • Happy Chandler||

    The word in the law is a noun.

  • Happy Chandler||

    "Pickled" is not in the law. Only "Pickles", defined as pickled cucumbers.

    Preserved vegetables is not in the law. You could make them as a canned jam, or dehydrated.

  • Agammamon||

    defined as pickled cucumbers *among several other definitions*.

  • jph12||

    No. The law sets forth certain exemptions from certain food safety regulations for particular types of food when made at home for small-scale sale. One of the types of food that is included in the exemption is "pickles," not pickled products (or preserved beets). The agency doesn't deny that other products can be pickled. It merely says that when people refer to a pickle they mean a pickled cucumber. I know if I ordered a fried pickle and a fried pickled pig's foot came out, I would be pretty surprised, so I don't the agency's position is unreasonable. The law should be amended to refer to pickled products (or possibly vegetables) rather than pickles.

  • Agammamon||

    i know that if I served multiple types of pickles I'd ask you what type you wanted. And no one would think it strange that, along with pickled cucumbers, I also sell pickled cabbage, peppers, amd feet.

  • jph12||

    "i know that if I served multiple types of pickles I'd ask you what type you wanted."

    Right. Kosher, sweet, dill, spicy, there are lots of types of pickles.

    "And no one would think it strange that, along with pickled cucumbers, I also sell pickled cabbage, peppers, amd feet."

    Neither I nor the agency have suggested that there would be anything strange about that.

    I want all laws to be interpreted according to their original public meaning. And I'm pretty sure that in 2013 in Texas the original public meaning of the noun "pickle" when referring to food referred to a pickled cucumber. I spent over 10 years in Texas and can't remember ever hearing a pickle refer to anything other than a pickled cucumber. It's a bad law, not a bad interpretation. The law should have been written to allow the sale of pickled products, or possibly pickled fruits and vegetables (I'm not sure if the safety considerations are sufficiently distinct for things like herring and pig's feet), but it wasn't.

  • Mickey Rat||

    So, if I read this right, the agency limited the definition of "pickles" to pickled cucumbers out of pure laziness and the language enabled them to be rules lawyers. This is why legal documents are written in such impenetrable language, to prevent this kind of gamesmanship.

  • Happy Chandler||

    Federal regulations for pickles.

    2
    §52.1681
    Product description.
    Pickles means the product prepared entirely or predominantly from cucumbers (Cucumis sativus L). Clean, sound ingredients are used that may or may not have been previously subjected to fermentation and curing in a salt brine.

  • Agammamon||

    federal regulations for pickles has nothing to do with in-state activity.

  • Happy Chandler||

    It is the first place to go for definitions. Texas could have their own definition written into the law, but since they don't, a reasonable bureaucrat would look to the federal regulations to decide what is a pickle.

  • Agammamon||

    no, a reasonable bureaucrat would not. a reasonable bureaucrat would understand that federal regulations are drafted with federal requirements in mind and those may be vastly differemt than state ones.

    a lazy bureaucrat would

  • Happy Chandler||

    Since when does following the law, as written, make one petty? I thought it made things legal.

  • TrickyVic (old school)||

    When it's immigration law being enforced by Trump?

    Or perhaps federal anti-pot laws being enforced by Sessions?

    There's a reason for the saying the law is an ass.

    But I do agree, that the way to fix it is to change the law.

  • Happy Chandler||

    Those are enforcement priorities. That is up to executive branch discretion.

    For instance, in the family separation cases, the administration chose an enforcement method that disregarded the rights and well being of children. That was judged unlawful. So, yes, that was the executive branch breaking the law to be an ass and destroy children's lives. Same thing with DACA, choosing enforcement strategies that do not take into account the well being of children. Also stopped by the judiciary.

    This is a case where the author is telling the bureaucrats to change the clear meaning of the law because they don't like the way that it is written.

  • TrickyVic (old school)||

    But shouldn't they enforce the law? And if we don't like it we should advocate to change it.

  • TrickyVic (old school)||

    And I'm speaking about immigration law in general, not your nitpicking of things you think will make your point.

  • TrickyVic (old school)||

    ""I thought it made things legal.""

    The natural state of things is that you can do.

    We don't need laws to tell us what we can do. That's for people who think things are unlawful unless approved by government.

  • General_Tso||

    So Big Cucumber wins again (that's what she said)

  • Mickey Rat||

    It seems in Texas Peter Piper has no incentive to pick a peck of pickled peppers.

  • TrickyVic (old school)||

    P. Piper
    Inmate # 983845

  • PACW||

    Texas is home to many great Vietnamese restaurants. Even back in 2013. House Pickle is the daikon/carrot mixture that makes Bahn Mi so incredibly delicious.

    I've also been in Mexican restaurants where the carrot/jalapeno stuff is called pickle.

    Yes, pickled cucumber is the common understanding of what a pickle is among older anglos - but from a pro-liberty and a scientific reading of the law you gotta include all the pickled vegetables.

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