This year, selling homemade mac and cheese to your neighbors for their annual Fourth of July barbecue will be illegal in North Dakota. This is courtesy of the North Dakota Department of Health’s 2020 rules that prohibit the sale of practically all homemade foods.
With these rules, the department has bulldozed the will of the people. In 2017, North Dakota's Legislature passed the Cottage Food Act. The act allows the sale of practically all homemade meals and canned goods to informed customers. For years under the act, North Dakotans enjoyed buying and selling fresh homemade foods and meals from their homes and at farmers’ markets. At her family-owned farmers’ market, Danielle Mickelson sold tomato basil soup made with ingredients plucked from her farm.
At Bismarket, Naina Agarwal frequently sold out of her native vegetarian Indian street foods, which could not be found anywhere else in the area. Lonnie Thompson provided for his autistic son and two other children by selling his popular low-acid canned stir-fry vegetable mixes from home. Summer Joy Peterson and Lydia Gessele, who live where it’s sometimes easier to buy from your neighbor than trek to a commercial grocer, started homemade food businesses and envisioned selling hot meals like chicken noodle soup and tater-tot dishes to their neighbors.
This food freedom united communities throughout North Dakota and spurred entrepreneurship. It also allowed North Dakotans to earn money for their families and access foods that are fresh and hard to find elsewhere. And there was never a single report of food-borne illness caused by a cottage food sold under the act.
Despite this success, the health department has never trusted that informed customers can decide what to buy and eat. While legislators negotiated the act, the department proposed that the law only allow home-baked goods and shelf-stable foods for sale. The lawmakers rejected this.
In early 2019, the department supported SB 2269, which would have amended the act to add these restrictions. Again, this legislative attempt failed.
Fed up, the department took matters into its own hands.
It flexed its bureaucratic muscles and proposed restrictive cottage food rules. When it opened these rules for public comment, 59 members of the public opposed the rules; and only three supported them.
But the department rolled on. On Jan. 1, 2020, it published the final rules, which ban all low-acid canned goods and most perishable homemade foods, including all meals. They allow only high-acid canned goods and limited perishable foods, like baked goods, some cut vegetables and raw poultry.
The department claims that these restrictions are necessary to protect public health, but it is hard to see how. For instance, how is raw poultry (permitted) safer than tomato basil soup, canned bell peppers, or a vegetarian curry (prohibited)? How is cheesecake (permitted) safer than mac and cheese (prohibited)? Why, if it is perfectly legal to sell the prohibited foods for charity should it be illegal to sell the same foods to support yourself and your family?
These irrationalities make the rules unconstitutional. The Equal Protection guarantee of the North Dakota Constitution prohibits the government from drawing arbitrary distinctions between homemade food sellers. Here, there is no rational reason to treat sellers of identical foods or equally safe foods differently.
Not only are the rules unconstitutional; they exceed the department’s authority. It’s Civics 101: The elected representatives create the law, and agency bureaucrats enforce that law. Unaccountable bureaucrats cannot abuse their rule-making power to add restrictions to the Cottage Food Act that the legislature outright rejected. Yet that’s what the department has done.
For these reasons, Danielle, Naina, Lonnie, Summer Joy, and Lydia teamed up with the Institute for Justice and sued the department in state court. It’s time for the courts to check the department’s abuse of power, end constitutional violations, and restore North Dakotans’ food freedom granted by their democratically elected representatives.
Tatiana Pino, of Arlington, Va., is one of two attorneys suing the state health department for its rollback of the Cottage Food Act.