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Texas Says 'Pickles' Only Come From Cucumbers. So This Couple's Farm Went Out of Business.

Anita and Jim McHaney are suing to overturn "preposterous" regulations on cottage food production.

Anita and Jim McHaney are retirees who moved from Houston to the Texas countryside in 2013. Their plan was to live well and grow food on a 10-acre homestead, earning extra money selling produce at the local farmers market. They grew okra, carrots, kale, swiss chard, and beets. Lots and lots of beets.

"That soil out there is very sandy, and those beets just grew like mad," says Anita. "Now the obvious thing to do when you have more beets than you can sell, is to make pickled beets and can them."

And this is where the McHaney's ran into trouble.

Like most states, Texas has a so-called "cottage food law" that exempts certain items sold at farmers markets from the state's commercial food manufacturing regulations—foods like bread, produce, nuts, jams, popcorn, and, of course, pickles.

But what constitutes a "pickle," and who gets to decide? The McHaneys discovered that the Texas Department of State Health Services (DSHS) takes the narrow view.

According to the DSHS, "A pickle is a cucumber preserved in vinegar, brine, or similar solution, only pickled cucumbers are allowed under the cottage food law. All other pickled vegetables are prohibited"

"The legislature didn't say that, the health department did," Anita explains.

So in order to sell their pickled beets at the farmers market, the McHaneys needed a commercial food manufacturers license, to build a commercial kitchen, submit their recipes to a government contractor at Texas A&M University, and register for a $700 food manufacturing class. However, the class is only offered once a year.

"We got right down to signing up for the class...even though people said 'you won't learn a damn thing in there,'" says Anita. "Then I saw that $700. I thought, you know, this is crazy. This is insanity."

The McHaney's neighbor, Virginia Cox, also grows and sells food at the local farmers market. She'd like to be able to pickle her leftover okra.

"I can make a whole lot more on it pickled because if it doesn't sell this week, I can take it back to the market next week," says Cox. "If it's fresh and it doesn't sell this week, it's not gonna sell next week."

Today, the McHaney's farm lies fallow. But they have decided to take the state of Texas to court with the help of the Dallas law firm Drinker, Biddle & Reath, who took on the case pro-bono.

Their main argument is that the regulations on cottage food production are unreasonable and stifle their economic opportunities.

"People can't afford that stuff, it shuts them out," says Anita.

As precedent, the McHaney's case invokes the landmark 2015 decision by Justice Don Willett striking down occupational licensing for Texas eyebrow threaders.

They're challenging the health department's definition of pickles and subsequent regulation on the grounds that it impinges on their "constitutionally protected right to earn an honest living."

The Texas Department of State Health Services wouldn't comment on the pending lawsuit, but defended the agency's rule as reflecting "the most common" interpretation of the word "pickle."

"It forces you, if you want to do a pickled beet, to go to a $700 class that has nothing to do with home canning," says Jim. "And now we've got hundreds and hundreds of occupations where you have to pay the government to do your job."

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  • SQRLSY One||

    So... They're kinda in a pickle, due to Government Almighty being stupid and power-hungry?

  • Steve-O||

    Mr. Haney has hired Mr. Douglas, a reputable big city lawyer, to represent him.

    Arnold Ziffle was not available for comment.

  • BALONEY TONEY MAHONEY||

    Arnold was selling bacon at the Farmer's Market!

  • Placeholder Name||

    The DSHS definition of "a pickle" is fair. The problem is the underlying anti-competitive regulation that limits what a farmer can sell.

  • ||

    This is a dicey one. Was a cucumber the first to be pickled? Or it did it just get its name over the years through popularity. It's true when we think of pickles we think cucumbers. No one says 'go get pickles' and you come back with beets.

    But still. Like you said, it shouldn't be used to restrict economic freedom.

    https://en.wikipedia.org/wiki/Pickling

  • Miter Broller||

    'Pickle' the noun for sure, but pickle is also a verb and that's their contention. One can pickle a multitude of produce, just not for sale in Texas.

  • JonFrum||

    Quite right. I grew up eating pickled beets - Swedish grandparents - but pickled beets are not pickles. Change the law - don't re-define the pickle.

  • Radioactive||

    how about canned or preserved beets?

  • ||

    "We got right down to signing up for the class...even though people said 'you won't learn a damn thing in there,'" says Anita. "Then I saw that $700. I thought, you know, this is crazy. This is insanity."

    Don't you even crony bro?

  • ||

    Life, liberty and the PURSUIT OF HAPPINESS. What part of that don't you get Texas?

  • SQRLSY One||

    The regulators and trolls under the bridges are looking to maximize THEIR happiness, at the expense of the common working humanoids!!!

  • LGDaub||

    The obvious thing to do is petition the legislature change 'pickle' to 'pickled vegetables,' not change the dictionary to suit themselves. Lawsuits like this is how we ended up with 'Vegan Mayonnaise,' which is a contradiction in terms.

    Not only would my solution be more sensible, it would be faster to implement-- and cheaper to the taxpayer. The Libertarian Party is in favor of the taxpayer paying less to government, right? And in favor of having words mean in law what they mean in the dictionary, right?

  • Duelles||

    Oh! Texas! WTF have you done. It sounds like you have empowered some minions in the health department to go statist on farmers and consumers. And don't tell me that nobody in the Texas health department hasn't had pickled cauliflower, onions, watermelon rind, or beets. What a bunch of isolated maroons ( bugs bunny reference)

  • Radioactive||

    you got a license to bake those maroons here pardner?

  • Spiritus Mundi||

    Pickled eggs? Pig's feet? More than veggies are pickled.

  • gphx||

    Lawmakers should have to take a $7000 Constitution class before they're allowed to pass stupid laws.
    Unelected bureaucrats shouldn't be able to pass them at all.

  • ColoradoKook||

    So, the government wants to get $700 so they can be certified in pickling things because it's such a new and innovative technology. That's ridiculous enough, but how long will it take them to recover that fee? I'm not in the pickling and farmer's market business, but I imagine their breakeven price would be $10 per jar. The cost of doing business is prohibitive.

    Thanks, oh mighty hand of government.

  • Hank Phillips||

    The same thing happened in 1907, the year the Pure Food Law became effective. What started out as a truth-in-advertising requirement that baby syrup SAY whether it contained morphine ended in the Panic of 1907. Bureaucrats began defining whiskey in the middle of a wave of fanatical temperance prohibitionism. On top of that came coercive definitions of things like "sardine." Beer-serving ice-houses (Knickerbocker) were soon in financial trouble and the entire economy collapsed under the weight of officious bigotry armed with service pistols. Crony kleptocracy pundits wave it away as the predictable result of excessive speculation, NOT coercive meddling. So... how much speculation is too much? By the Circularity Principle economic reality control requires, "too much" is the amount that "caused" a crash and depression, Q.E.D. https://preview.tinyurl.com/y9fz5xxc

  • operagost||

    I'm not understanding. Why can't they call it "canned pickle-style beets" or something like that?

  • Steve-O||

    It's not a truth in advertising issue.

    To sell "canned pickle-style beets" they would need to comply with a bunch of prohibitively-expensive regulations. These regulations do not apply to pickled cucumbers, but they do apply to pickled beets, etc.

  • Uncle Jay||

    Well of course a bunch of Texas bureaucrats put these unenlightened, politically ignorant, Neanderthal farmers out of business.
    After all, who knows more about farming, bureaucrats or farmers.
    I think we all know the answer to that.

  • Uncle Jay||

    Well of course these wise and hard working Texas bureaucrats put these unenlightened, backward, hard-working peasants out of business.
    After all, who would know more about cucumbers, pickles and raising crops?
    Bureaucrats who never stepped foot on a farm or a couple of farmers who worked the soil all their lives?
    I think we all know the answer to that.

  • Uncle Jay||

    Sorry about the double post.
    The damn "submit" button isn't working all the time on my computer.

  • Tionico||

    Simple solution.. label the pickled beets "harvard beets"... a style of pickling. But continue to sue the stupid state.

    Pickles are made of lots of things. In fact, ketchup is a pickled tomato sauce with certain spices. Piclked pigs feet, okra, rhubarb, Mexicans pickle jalapeño chiles, green olives are pickled, cabbage is pickled, etc.

    When time comes for trial, I'd hit up the local HEB and but a whole pile of different pickled products, each with the word "pickle" on the big front label, and present them as evidence that the knucklehead state dweebs are WRONG. Make sure the case is heard in a rural area, NOT Dallas or Houston, and when its time to select the jury make sure a bunch of them grow gardens, do home canning, are grandmas, have or still do farm..... THEY will all know better than the eedjit city slickers slopping at the public trough. It will be hilarious to watch them squirm as their iggorunts are plain for all to see... and laugh at.

  • MichaelL||

    Sounds like a good time to change the law!

  • Echospinner||

    Well great that the state of Texas has defined the pickle.

    Is there a point where a cucumber soaking in brine is no longer a cucumber? A magical point where it transforms?

    I need to know this.

  • swampwiz||

    I don't see what the problem is. The state has a compelling interest in regulating canning procedure, as nasty stuff like botulism could result is not done properly. $700 is a rather small amount, and it seems that it suffices for an exam that would prove one's competence.

  • mpercy||

    Then why are pickled cucumbers allowed without special training, but not pickled okra or beets?

  • ||

    Because you can pickle cucumbers with nothing but water and salt. Pickling beets requires that the beets be preserved aside from any pickling agents. Usually by a more widely practiced heat-and-pressure canning or jarring method.

    Again, I'm of the mind that there shouldn't be a law, but that requires a bit of faith on the on the part of humanity to understand brining vs. pickling vs. fermenting vs. canning etc. Otherwise, nobody knows whether the pickles can be opened and left to sit on the counter and the pickled beets should go in the fridge after being opened and people get poisoned and/or sue-happy and necessitate their own regulation.

  • Deelerious||

    When in doubt don't leave it out. Simple.

  • CE||

    The state has no compelling interest in telling people what they can eat, buy or sell.
    The state (if it exists) is supposed to protect us from violent criminals (or at least punish them after the fact, so we don't take matters into our own hands and kick off an unending chain of violent reprisals on behalf of our families/clans.)

  • tlapp||

    And Texas is usually ranked as one of the most economically free states. Pickled okra, onions, cabbage don't exist in Texas? The legislators never heard of any such things. A pack of freedom hating idiots.

  • TxJack 112||

    They do but they are sold by people with commercial licenses who are monitored to make sure the process is safe. I don't know the particulars of this law but have lived here my entire life and this is the first case I have ever heard where people are complaining about the regulations. Texans have never and still do not trust government so for these regulations to exist, there has to be a good reason. Trash us all you want because we really do not care what people in other states think or say. Never have and never will.

  • No Yards Penalty||

    TxJackAss, is more like it.

  • UnrepentantCurmudgeon||

    I agree that the definition of "pickle" is unduly narrow, but there's nothing, even pickling, that can induce me to eat okra.

  • Joseph C. Moore (USN Ret.||

    That is bureaucratic nonsense created by bureaucratic morons whose only reference of "pickles" is what they have seen in supermarkets. Pickling is a preservative process that can be used on most vegetables. The term that we use for pickled cucumbers is "pickles" ONLY as a less cumbersome description. I love natural pickled "half sour pickles" which are usually just called "half sours" (for convenience). I also am a great fan of pickled green beans which are only named "dilly beans". The general public does not need to go through a detailed processing mode application to buy a product, and those MORONS who have no knowledge of canning procedures should not be making laws based on their own ignorance.

  • newshutz||

    There is a wider selection of pickles than just pickled cucumber on most grocery shelves. This is a disconnect from the real world by "our betters" as RAK likes to call them.

  • macsnafu||

    I would have to agree that a 'pickle' is a pickled cucumber. But laws that restrict businesses and home businesses are the problem here, not the definition of a pickle.

  • Fred G. Sanford||

    I thought Texas was supposed to be the pro-business/anti-excessive regulation state. If you take that away, all you are left with is humidity, religious fanatics and rednecks.

  • SQRLSY One||

    And lots of heat... You forgot the heat! At least there is very little shoveling of snow... Shoveling of Government Almighty bullshit regs? Yes, Texas has that! But not much shoveling of snow, at least...

  • TxJack 112||

    We are and as far as your other comments. Many of us are proud to be called rednecks, so PO.

  • No Yards Penalty||

    Shouldn't you be over at The Federalist, TxJackass?

  • ||

    Not that I'm in favor of the law, but this presentation advances the argument as though the question is "What is a pickle?" when, in fact, the issue is "When is something pickled (vs. canned, jarred, fresh, etc.)?"

    Cucumbers aren't absolutely unique but are somewhat distinct in that you can harvest them full of dirt, toss them in a filthy barrel, pour in enough vinegar and salt to make sure nothing grows and you haven't destroyed the (lack of) nutritional value or (again, lack of) flavor of the cucumber. Beets, carrots, green beans, mushrooms, and even corn, beans, oranges, peaches, etc. you can't and/or wouldn't want to soak in acid to preserve. Certainly there are some vegetables who's flavor can be enhanced by the acid and who will tolerate it well enough to expedite the preservation process, but the pickling isn't the primary method of preservation. The cannnig or jarring is. You *can* jar pickles in vinegar using heat and a pressure cooker, but it isn't necessary the same way it is for beets, carrots, green beans, mushrooms, peaches, etc.

    Adding pickled beets to the 'OK' list while keeping canned vegetables on the 'Not OK' list doesn't make any more sense than the current situation (again, not that I think any of them should be regulated in this manner).

  • WashMagic||

    I don't understand Texas. On one side, I hear lots of things about how conservative and rich with freedom the state is. Then I read stuff like this.

  • TxJack 112||

    First, they should have read the laws before they decided to start a business. Second, there is no reason they cannot use their land to grown vegetables and sell them fresh. Why do they have to pickle everything? I live in Texas and yes we have some crazy laws but many of them are in place because of incidents where people have been harmed. Texas is not New York or California. It is very easy to start a business here and sorry, but one couple not being able to sell pickled vegetables is hardly justification to demonized the entire state or its laws. Someone said a couple of days ago in a comment about another issue that this site was becoming more and more leftist. After this "story", I have to agree.

  • miketol||

    The couple was selling vegetables fresh. The problem is that sometimes they had more beets than what they could sell fresh. Now with beets, you have maybe 7 or 10 days max to sell them fresh. After that, the only way to sell them is to a hog farmer. Pickling the beets was just a way for the couple to preserve the value of the beets that they could not sell right away.

    I agree that Texas is one of the more business-friendly in the country. But even Texas is not immune to boneheaded regulators. It just has fewer of those than New York or California.

    I really think the problem is that the regulators do not know the difference between canned beets and pickled beets. Canned beets are prepared in almost pure water and must be prepared in a pressure canner as the heat and pressure is needed to kill the botulinum bacteria. Pickled beets are prepared in a solution of brine and acid and the salinity and acidity of the solution kills the botulinum bacteria. Pickled beets present no more hazzard than pickled cucumbers.

  • No Yards Penalty||

    I've decided to demonize Texas because it's home to Contard fuckwits like you, TxJackAss.

  • No Yards Penalty||

    I've decided to demonize Texas because it's home to Contard fuckwits like you, TxJackAss.

  • No Yards Penalty||

    I've decided to demonize Texas because it's home to Contard fuckwits like you, TxJackAss.

  • Me Myself and I||

    Even in red Texas, land of the free, government bureaucrats will create regulations that choke the average citizen.

  • Rob Misek||

    A lazy narrow application of a law meant to keep the public safe from homemade foods.

    Some people would call pickled meat or eggs pickles.
    They represent a much greater risk.

    People always test the limit of laws in their own favour.

    The health department just needs to improve the law to include other foods as safe as cucumbers.

    Good luck with that.

  • Darr247||

    That's what you get for being a MAGAt.

  • CE||

    Obviously the Texas government got the definition of a pickle correct.
    We grew acres of cucumbers when I was a kid, and made pickles out of them.
    We never made pickles out of beets or anything else.
    Some people pickle beets (not sure why), but that still doesn't make them pickles.

  • Toner Cartridge||

    I love your website because it provides so many examples of how the Amercia self-perception of being the 'land of the free' is wrong.

    Please keep up the good work.

  • crufus||

    Is there a pickled beet industry that Texas Department of State Health Services is protecting?

    Couldn't they just call they something like "Beets Preserved in Brine"?

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