North Dakota Food Freedom

Introduction

In 2017, North Dakota’s Legislature enacted the Cottage Food Act, which allowed North Dakotans to sell practically any homemade meals and drinks directly to informed consumers—everything from chicken noodle soup and lasagna to pizza. This made North Dakota a leader for food freedom nationwide.

For three years, this law united communities, fueled entrepreneurship and job creation, and increased North Dakotans’ access to fresh foods and meals. And there was not one reported problem with any homemade food sold under the Act.

The only entity that had a problem with the Act was the Department of Health. The Department asked the Legislature to limit the types of homemade foods that could be sold in 2017 and again in 2019, but the Legislature refused. The Department then took matters into its own hands. In December 2019, it enacted regulations that ban the sale of almost all homemade foods.

Under the Department’s regulations, cottage food producers are banned from selling any homemade meals or drinks. Instead, they can sell only shelf stable foods and a few perishable foods. The only perishable foods that can be sold under the regulations are:

• Baked goods, like cheesecakes and cream puffs.
• Limited types of prepared vegetables (must be dried, blanched, or frozen); and
• Raw uninspected poultry.

The regulations also severely limit what canned foods can be sold. The regulations only allow the sale of high-acid or acidified home-canned foods, like jams, jellies, and pickles. Low-acid home-canned goods, which include most canned vegetables, are banned.

Although 61 comments were submitted against the regulations (and only three comments submitted in favor), the Department enacted the regulations anyway.

The regulations became effective on January 1, 2020. Failure to comply with the regulations is punishable as a class B misdemeanor offense, which carries a maximum penalty of 30 days imprisonment or a $1,500 fine, or both. And there’s nothing that the Legislature can do until it goes back into session in 2021.

The Plaintiffs
Danielle Mickelson
Danielle is a farmer, mother of five, a former English teacher, and is a member of her local government in Rolla, North Dakota. She also runs her local farmers’ market.

After the Act passed in 2017, Danielle began selling frozen soups, like French onion and tomato basil, that were made with fresh produce from her farm. She also sold low-acid canned vegetables in Mason jars, like carrots, beets, green beans and peas. She also sold pizza crust and home-canned pizza sauce in Mason jars and wanted to start selling pizza. Danielle looks forward to selling all these goods again once food freedom in North Dakota is restored.

Lydia Gessele
Lydia is a single mother of three children and raises chickens on her farm. After the Act passed in 2017, she began selling homemade tea blends, home-baked goods, and eggs from her home and at farmers’ markets. Lydia already legally donates many hot meals to charity, including homemade chicken noodle soup, chili, tater tot hot dishes and lasagna. She wants to sell these same meals to support her family, which would be fine without the new, illegally enacted regulations.

Lonnie Thompson
Lonnie works full time at a local restaurant and has three children. He also owns and operates a small homemade food business with his wife. Having a home-based business is vital to Lonnie’s family because his wife can only work from home due to a serious medical disorder.

When the Act passed in 2017, Lonnie began canning specialty low-acid foods, like canned beets, bell pepper relish, spicy salsas, and apple butter, and sold them in Mason jars. He became most popular for his home-canned vegetable mixes, which his customers would often buy to cook in stir-fries. Until the Cottage Food Act is restored, he can no longer sell these goods to willing customers.

Summer Joy Peterson
Summer Joy is a mother of three children. She owns and operates her and her husband’s fourth generation ranch and farm, where she raises livestock and chickens. After the Act passed in 2017, Summer Joy began selling home-baked goods, eggs, and low-acid canned vegetables from her ranch and at farmers markets.

Summer Joy wants to start selling cooked meals, including chicken noodle soup and vegetarian soups, but cannot because of the Department’s regulations. The regulations also forced her to stop selling her canned vegetables.

Naina Agarwal
Naina was born and raised in India. In the fall of 2017, she moved to Bismarck, North Dakota, where she works full time as a Certified Public Accountant. Naina became a vendor of home-cooked vegetarian Indian street foods at her local farmers market but had to stop because of the new regulations.

The Defendants
The Defendants are the North Dakota Health Department which adopted the regulations; the Health Council of the Health Department, which created the regulations; and Julie Wagendorf who was involved with the drafting, proposal, and adoption of the regulations and serves as the Director of Food and Lodging Division of the Health Department, which enforces regulations about retail food sales.

Legal Claims
Danielle, Lonnie, Lydia, Summer Joy, and Naina are challenging the Department’s regulations in the South Central Judicial District Court of North Dakota in Burleigh County, North Dakota. They are challenging the Department’s regulations as illegal and unconstitutional.

The regulations are illegal because they conflict with the text and intent of the Cottage Food Act, and state agencies are not permitted to contradict the law. The Act allows the sale of “cottage food,” which is defined as “baked goods, jams, jellies, and other food and drink products.” N.D. Cent. Code Ann. § 23-09.5-01(2). The only foods the law excluded from sale are certain meat products. But the regulations flip the law on its head by banning the sale of almost of homemade foods.

The regulations also contradict the intent of the Act, which was to allow North Dakotans to freely sell homemade foods and meals. This is clear from the Act’s legislative history. For example, the sponsor of the Act—Representative Luke Simons—stated when he first introduced the Cottage Food Bill to the legislature, “Do we not find it sad that in a free country you cannot sell a bowl of chicken noodle soup?” After the Act passed, North Dakotans sold homemade chicken noodle soup for three years. But because of the regulations, they can no longer do so.

The regulations are also unconstitutional. The North Dakota Constitution protects the right of individuals to be treated equally under the law. But the regulations don’t do that. Instead, the regulations arbitrarily ban some from people from selling homemade foods, while allowing others to freely sell—even though the banned foods are just as safe and sometimes safer than the allowed foods. For example, the regulations freely allow a home baker to sell cheesecake, while banning a home pizza maker from selling cheese pizza. The regulations also allow a farmer to sell uninspected raw poultry, while banning a home cook from selling chicken noodle soup.

In addition, the Department allows people to sell homemade foods at charitable and “public spirited” events. For example, the Department allows people to sell sloppy joes at baseball games. But under the Department’s regulations, a person can’t sell the same foods to support their families and farms. This is arbitrary, unfair, and unconstitutional.

Requested Relief
Plaintiffs simply ask the court to declare that the Department overstepped its authority and that the regulations are illegal and unconstitutional. This would allow North Dakotans to sell practically all homemade foods directly to consumers—just as the Legislature intended.

The Litigation Team
The litigation team consists of Institute for Justice Senior Attorney Erica Smith and Institute for Justice Attorney Tatiana Pino.

The Plaintiffs are also represented by David J. Chapman in Fargo, North Dakota, who is serving as local counsel.

About the Institute for Justice
The Institute for Justice is the national law firm for liberty.

This case is part of IJ’s National Food Freedom Initiative, which IJ launched in November 2013. This nationwide campaign brings property rights, economic liberty, and free speech challenges to laws that interfere with the ability of Americans to produce, market, procure, and consume the foods of their choice. IJ has won constitutional challenges to Wisconsin’s ban on the sale of home-baked goods and to Minnesota’s restrictions on the right to sell home-baked and home-canned goods. IJ has also helped pass laws expanding the sale of homemade foods in several states across the country, including in Wyoming, Kentucky, Maryland, and West Virginia.

It is currently litigating cases challenging restrictions on the right to sell home-baked goods in New Jersey and the rights of Minnesota farm wineries to make wines with out-of-state grapes.