BISMARCK -- Disputed rules outlining how and what cottage foods can be sold in North Dakota are to soon become effective, while debate is expected to continue in the 2021 Legislature.
The Legislature’s Administrative Rules Committee met Tuesday and reviewed the rules, which have been criticized as onerous on cottage food sellers. The rules, which take effect Jan. 1, essentially mirror a bill the 2019 Legislature defeated. That bill would have prohibited low-acid home-canned items such as green beans, specified label requirements and required frozen transport for some foods.
The bill sought to clarify a 2017 law that expanded direct-to-consumer sales of uninspected home-baked and canned items. Cottage food producers have said the rules are onerous, and they also have disputed the Health Department’s rule-making authority. State health officials say the law needs clarification on what foods can be sold, to safeguard public health.
Rep. Rick Becker, R-Bismarck, called the rules “quasi-legislation” by the state Department of Health, which he sees as overstepping its authority as an executive agency.
“I think that by accepting these rules or by allowing them to pass, we are setting a precedent that’s bad,” Becker said.
He questioned Division of Food and Lodging Director Julie Wagendorf about the rules’ alignment with legislative intent.
She said the 2017 Legislature meant for cottage food products to be limited, but Becker asked about the failed 2019 bill, which sunk in the House over arguments of liberty and “food freedom.”
“Do you believe that you are countering legislative intent when you put a restriction, a prohibition on low-acid foods?” Becker asked.
“No, I do not," Wagendorf responded, "because we are not restricting anything that was already stated in law and we are writing rules that uphold what is already stated in law.”
Becker moved to void a section of the rules prohibiting all home-canned foods but for high-acid products, reasoning that the Health Department didn’t comply with “express legislative intent.” His motion failed 3-9.
Before the vote, Becker and a top lawyer for the Legislature debated the extent of legislative intent, specifically if the history of a failed bill can even be considered, as no law came forth.
“Without that, it would be difficult to go back and say this isn’t what we intended by this legislation because the legislation doesn’t exist,” said Vonette Richter, director of the Legislative Council’s Legal Division.
Becker said the bill’s hearing discussions could be considered.
Rep. Bill Devlin, R-Finley, who chairs the committee, allowed a cottage food proponent to testify on the rules. An attorney for the Institute for Justice was to testify but was stranded due to bad weather. North Dakota Food Freedom coordinator LeAnn Harner appeared instead and said the 2017 law is clear enough for cottage foods and disputed the Health Department’s authority to bring rules.
“I think that there is just a real disconnect between what the department has done here and what you all intended as a legislative body,” Harner said.
The committee did not review the rules to vote on their content but rather to ensure the Health Department’s process met legal requirements. Without any formal objection or voidance by the committee, the rules go into effect Jan. 1.
After the committee’s vote on Becker's motion, Harner said she felt “extremely sad,” especially after her and others’ work throughout the last year with the Legislature.
“People have spent so much time and effort doing this … and the Health Department is just running roughshod over us,” Harner told the Tribune.
She and Devlin said another bill to further address cottage foods is likely to come before the 2021 Legislature.
“We’ll have to do it all over again,” Harner said.
The rules and the 2017 law provide no penalties for selling restricted cottage food items. The Health 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, Wagendorf said. To operate such an establishment without a license can bring a Class B misdemeanor, punishable by up to 30 days in jail and a $1,500 fine.