There’s a word often thrown around in politics that I think is worth defining as we begin this article— bureaucracy. According to Google, it is:
“… a system of government in which most of the important decisions are made by state officials rather than by elected representatives.”
Those “state officials” are, of course, defined themselves by another familiar term— bureaucrats. Google describes these folks as:
“… [officials] in a government department, in particular one perceived as being concerned with procedural correctness at the expense of people’s needs.”
In my opinion, these definitions are spot on. And when considering them, I can’t think of a better way to define the North Dakota Department of Health and those who work for the agency. Well, on second thought, I can think of another way, but it certainly wouldn’t be an appropriate expression. But I digress.
To illustrate how pathetically awful the Department of Health is, we need only look at their ongoing efforts to undermine North Dakota’s Food Freedom laws and its associated cottage food industry. But first, some background.
You might recall that back in 2017 political newcomer Rep. Luke Simons (R – District 36) sponsored House Bill 1433. In its original form, it was dubbed the “Raw Milk Bill”. In fact, one of the first articles I wrote on the official Minuteman website was, “YOUR GRANDFATHER: The Raw Milk Criminal“. In order for the bill to have any chance of passing though, the portion permitting the sale of raw milk had to be eliminated. And so it was. As a result, what was ultimately left of the legislation became known simply as “Food Freedom”.
As disappointing as it was to some of us to have a portion of the bill stripped out, there was no question that if the amended legislation passed it would still be a victory for cottage food advocates. Thankfully, after the amendment process and a lot of debate, the bill did pass. Governor Doug Burgum then did the right thing and signed it into law on April 14, 2017.
In a nutshell, the law enables 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.” These sales may occur in places like farms, ranches, home-based kitchens, farmers markets, craft shows, roadside stands, fairs, etc.
Unfortunately, bureaucrats in the North Dakota Department of Health just couldn’t leave well enough alone. The fact that the legislature and Governor Burgum had put their stamp of approval on Food Freedom simply didn’t matter to them. Though the legislation went into effect in August of 2017, by February of 2018 the Department of Health issued public notices declaring its intent to adopt restrictive administrative rules in regards to the law.
As written, the rules being proposed by the Department of Health at that time basically undermined the intent of Food Freedom. Not only did it specify exactly which “cottage food products” could have been “approved for sale”, but it even went as far as mandating just four sources that could have been used for recipes in “approved, home-canned products”. And if your canning recipe wouldn’t have come from one of those four sources, it would have been considered “custom” and required approval by a “subject matter expert” who has “access to a testing facility”. It was insane.
What ensued, following the announcement of the Department of Health’s proposal, was nothing short of a major pushback from the cottage food industry. Not only did those in the cottage food industry — and their supporters — voice their opposition, but an attorney from the Institute for Justice jumped on board and wrote a letter to State Health Officer Mylynn Tufte threatening legal action if the department didn’t withdraw their proposed rules. In modern terms, it was “epic”. And though the Department of Health had scheduled three public hearings in Bismarck, Dickinson, and Fargo on the rules, they backed down and cancelled them.
In the aftermath of these events, I told key figures in the Food Freedom movement to expect another battle in the 2019 Legislative Session. And sure enough, it came in the form of Senate Bill 2269. Assistant Majority Leader, Senator Jerry Klein (R – District 14) — who also happens to be a retired grocery store owner — was its primary sponsor. With the backing of the North Dakota Department of Health, another assault on Food Freedom was set in motion.
The proposed list of modifications to Food Freedom laws were extensive. In a nutshell, Klein was attempting to do what the Department of Health didn’t. After lengthy committee hearings, a number of amendments, and some tense debate in the House, SB 2269 was handily defeated on a vote of 26-65.
At the time of its defeat, I once again expressed the view that this wouldn’t be the end of it and that the Department of Health would “once again revive efforts to act administratively as a means of retribution.”
Last month the Bismarck Tribune’s Jack Dura reported that:
“North Dakota health officials on Wednesday, Aug. 14, approved proposed rules on cottage foods for public comment amid an ongoing dispute over what foods state law allows.”
And so, as the old saying goes, “Here we go again.”
What’s interesting about the Department of Health’s current proposal is that the Director of the department’s Food and Lodging Division — Julie Wagendorf — had it ready to go back in May. In fact, minutes from the May 15th meeting of the State Health Council show that she requested approval to move forward with public hearings then. Keep in mind this was just two and a half weeks removed from the conclusion of the 2019 Legislative Session— the same session in which SB 2269 was defeated. Make no mistake about it, this is more than a regulatory move— it’s political retribution.
As detailed on the current North Dakota Food Freedom website, the proposed rules are — once again — extensive, problematic, and restrictive. According to them:
“If these rules are adopted, we are essentially back to existing state requirements pre-2017.”
Think of that for a moment. This isn’t only an attack on Food Freedom, but it can also be argued that it’s an attack on the legislative process. Is it any wonder some people refer to the North Dakota Department of Health as the “fourth branch of government”?
Let’s also not forget that the Food Freedom law is explicit:
“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.”
In fact, the law goes further. The only authority granted to the Department of Health is to:
“… conduct an investigation upon complaint of an illness or environmental health complaint.”
That’s it. And guess how many of those have been reported? Zero. But these things mean nothing to them. They’re making their move to usurp power that they shouldn’t have, to enforce rules they have no business making.
Not only would these rules stifle a budding industry within the state, but they insult the very people who support Food Freedom 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.
Think about it this way— when you took your last trip to Applebee’s, McDonald’s, the local grocery store, or a litany of other places to purchase and consume food, did you know where it came from? I’m guessing not. Which is fine. But when we purchase goods from a cottage food producer, it literally cuts out the middle man. I think that’s about as American as you can get. Which is why I believe the North Dakota Department of Health is about as un-American as they come.
Let’s be honest. They’re daring the cottage food industry to sue them. They’re going to push this as far as they can— freedom and law be damned. And the sad thing is this— if they get away with it, what message does it send? In my opinion, a chilling one.
If you’re interested in attending, a public hearing will be held on Wednesday, October 2, 2019 in the Department of Health’s Conference Room 212 in the Judicial Wing of the State Capitol in Bismarck at 1:00pm. Public comments need to be submitted by October 12, 2019 to email@example.com. Hints for writing comments can be viewed by clicking here.
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