North Dakota state health officials have been sued over new rules seen by some as restricting sales of homemade foods and undermining the Legislature's intent.
The rules went into effect Jan. 1. Institute for Justice attorneys representing five North Dakota plaintiffs say the rules contradict a 2017 law expanding cottage food sales and also limit what food can be sold, which hurts cottage food vendors, especially during the coronavirus pandemic.
Health officials are seeking to dismiss their claims.
Cottage foods are generally homemade, home-baked and home-canned items. The state court lawsuit filed in March in Burleigh County seeks to overturn the rules brought by the state Department of Health limiting foods for sale.
Institute for Justice Senior Attorney Erica Smith said the Legislature's intent is overwhelming in meaning the law to allow all food and drink products for sale unless specifically prohibited.
"North Dakotans wanted food freedom, and the Legislature gave it to them, but now the department has taken it away, and as a result, hundreds if not thousands of people have lost a way to support their families and their farms," she said.
Cottage food sales offer access to fresh food and economic opportunities for families amid the pandemic, she added.
The rules allow only shelf-stable foods, such as snack foods and desserts, as well as perishable baked goods and raw poultry, by Smith's interpretation. The 2019 Legislature defeated a bill identical to the rules that were brought weeks after the legislative session ended.
The rules have limited or made ambiguous what food can be sold, said plaintiff Summer Joy Peterson, whose family farms and ranches near New Leipzig. For now they're selling only breads, fruit pies, some cookies and eggs. They previously sold low-acid, pressure-canned food such as corn, beans, peas, vegetables soups and a specialty mustard corn relish.
Rules for temperature controls also have made a gray area for what custard products her daughter can sell, she added. Her family had begun to expand their sales to salsas, vegetables and other baked goods after the 2017 law passed. She'd like the department to rescind the rules.
Her family has sold food at farmers markets as a side business and has been receiving neighbors' calls during the pandemic, but it can't fulfill every order because of the rules or perceived ambiguity.
"People need food, and they're not being able to find it easily in the grocery stores," Peterson said.
The health department declined to comment on the lawsuit, citing the pending litigation.
State health officials are seeking to dismiss the plaintiffs' claims, arguing the plaintiffs haven't exhausted their administrative remedies. Smith called that "an insulting argument," given the strong public opposition in the rules' public hearing and comment process.
In bringing the rules, state health officials said the cottage foods law needs clarity on what foods can be sold and that public health needs to be safeguarded.
The rules and the 2017 law provide no penalties for selling restricted cottage food items. The department can investigate complaints of illness, and its findings could be used as evidence in a lawsuit, most likely from a sickened person against a vendor.
The department regulates other food services, such as restaurants and caterers, with licensing, for which misdemeanor penalties exist.
Reach Jack Dura at 701-250-8225 or firstname.lastname@example.org.
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