In April of 2017, the North Dakota Legislature passed Rep. Luke Simons’ (R – District 36) HB 1433. Initially, the bill was dubbed the “Raw Milk Bill”, because it included verbiage that would have permitted the sale of raw milk. But because the state doesn’t think consumers are capable of making the decision to consume such a thing, that portion of the bill was ultimately eliminated. In the form that ultimately became law, it was simply known as the “Food Freedom Bill”.
The legislation was a win for what some refer to as the “cottage industry”. In a nutshell, it enabled cottage food producers to prepare and package food items from their home kitchens and to sell those products directly to consumers with a label reading, “This product is made in a home kitchen that is not inspected by the state or local health department.”
As is typical of the State Health Department, they couldn’t leave well enough alone. By February of 2018, they were already proposing rules that would have gutted the Food Freedom law. The law is very clear:
“Notwithstanding any other provision of law, 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 section does not preclude an agency from providing assistance, consultation, or inspection, upon request, of a producer.”
But the Health Department simply didn’t seem to care. As the proposed rules read at the time, they would have undermined the intent of the law. The Health Department planned three public hearings in Bismarck, Dickinson, and Fargo on the rules. But after a major pushback from the cottage food industry — and the threat of a lawsuit from an attorney with the Institute for Justice — the Health Department backed down and cancelled the public meetings.
The victory was a sweet one for supporters of Food Freedom. To be honest, it was almost miraculous to some. To think that the fledgling industry and its supporters had stood up to the state — and won — was truly amazing.
At the time, I recall telling some folks — who had been involved in the battle for Food Freedom — that while the win was worth enjoying, it was merely a battle, not the war. I expressed with confidence that when the 2019 Legislative Session rolled around that we should expect the Health Department to fire the proverbial shot of yet another battle. And fire they have. Only this time it’s in the form of Senate Bill 2269.
If passed, SB 2269 would make serious modifications to the Food Freedom Law. According to the North Dakota Food Freedom website, here are some of those changes:
- Drink products would no longer be permitted to be sold. Things like homemade lemonade, various juices, etc.— all would be off limits. This is akin to criminalizing lemonade stands.
- No more refrigerated foods. All foods would have to be transported frozen. Those yummy vegetable and fruit salads— no way. Heck, even that fresh banana crème pie must be frozen.
- No meats— including no foods that contain meat.
- No non-acidic canned fruits or vegetables.
- No seed sprouts or garlic in oil.
- Labeling would be required that includes handling instructions.
- Sale of fresh, uncut produce would be subject to regulations not found in current law.
There’s more, but that’s a fairly good synopsis.
I suppose it shouldn’t surprise us that the primary sponsor of the bill is Assistant Majority Leader, Senator Jerry Klein (R – District 14). If that doesn’t mean anything to you, then maybe this will help— Klein is a retired grocery store owner. Coincidence? I think not. Yes, indeed, it’s yet another example of protectionism in state government— a lawmaker using his position to try to protect his industry from the competition. And all with the support of the Health Department.
The actions in opposition to this law from 2017 to the present are awful. Not only do they attempt to stifle a budding industry within the state, but they insult the very people who support the industry in the process. After all, are we not capable to making decisions for ourselves and our families as to what kind of food we purchase and consume? Do we really need the state to protect us from the big bad cottage food industry? I don’t know about you, but I sure don’t.
When I purchase goods directly from a producer, I know exactly where my food has come from. Can we say the same about Applebee’s, McDonald’s, the local grocery store, and a litany of other places? No.
The free market is a beautiful thing. And Liberty is too. I say we eliminate protectionism and the Health Department so that we can enjoy both.
The Senate Agriculture Committee will hold a hearing on SB 2269 next Thursday, February 7th, at 8:30am. It will be in the Roosevelt Park Room, which is on the ground floor of the State Capitol. We ask that you please consider attending and voicing your opposition to this bill. If you cannot attend in person, then we’d ask that you submit written testimony calling for a Do Not Pass recommendation. You can find the committee’s contact information here.
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