Just one year ago, the North Dakota Legislature was considering Rep. Luke Simons’ (R – District 36) House Bill 1433. This bill was originally known to many of its supporters as the “Raw Milk Bill“, but the actual content of the legislation was much larger than the issue of whether people should be able to buy and sell raw milk. Eventually the portion of the bill pertaining to raw milk was removed. As a result, the legislation became known simply as the “Food Freedom Bill”.
After some amendments, the North Dakota Legislature passed the Food Freedom Bill on April 7th of last year and sent it to Governor Burgum’s desk for his signature. The legislation was a win for what some refer to as the “cottage industry”. In a nutshell, it 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.
While the law spells out the parameters that the cottage food industry must function under, you can also see that it’s very specific in limiting the role of the government. But apparently that’s not a deterrent for a certain North Dakota agency. Earlier this month, the North Dakota Department of Health issued a “Notice of Intent to Adopt Administrative Rules” regarding the Food Freedom law.
As written, the rules being proposed by the Department of Health basically undermine the intent of the current law. Not only does it specify exactly which “cottage food products” are “approved for sale”, but it even goes as far as mandating just four sources that can be used for recipes in “approved, home-canned products”. And if your canning recipe doesn’t come from one of these four sources, it’s considered “custom” and must be approved by a “subject matter expert” who has “access to a testing facility”.
So, that canning recipe that’s been in the family for generations– not approved. It’s custom. You’ll need to have it tested to get the Almighty State’s approval.
Ph levels, temperature control, whether food must be “ready-to-eat” or not– its all mandated in the proposed rules. Heck, they even define frozen to be “0 degrees Fahrenheit or less”.
The rules are so ridiculous that the North Dakota Food Freedom website also points out that under them, “You can’t cut up a vegetable for sale.”
One of the most notable components of the law says this:
“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.”
Yet, the Department of Health even appears to be attempting a work-a-round on their being limited from doing inspections. The current law only grants them the authority to conduct investigations:
“The state department of health or a local regulating authority may conduct an investigation upon complaint of an illness or environmental health complaint.”
Yet, it could be argued that a reading of the proposed rules for conducting “an investigation” aren’t really any different than conducting an inspection. If the rules were implemented as they are, the Department of Health could simply claim they’re conducting an “investigation”, when in reality they’re carrying out an inspection. There’s literally nothing to protect against their abusing this power– thus nullifying both the letter and intent of the law to limit their authority on the matter.
One of the key grassroots organizers of the Food Freedom Bill was Jared Hendrix. In a statement to The Minuteman, he said:
“There are few things in politics that are more frustrating than seeing folks in the executive branch tear apart legislation that activists and legislators worked so hard on. These unelected individuals are tasked with executing the law, and should not be rewriting it.”
Rep. Luke Simons expressed a similar feeling:
“We don’t need legislators if bureaucrats can interpret law anyway they choose or so desire. The way the Health Department re-wrote this reverts it back to the way it was originally. So, why did we bother – almost overwhelmingly – to change the law if bureaucrats can interpret law anyway they so desire? It’s time they understand they don’t write law, we write law.”
Hendrix and Simons are absolutely correct. We don’t need what amounts to a fourth branch of government. What the Department of Health is proposing is not only an overreach, but it’s an abuse of power.
There are three public hearing to be held in Bismarck, Dickinson, and Fargo on March 22-23. Following the public hearings and a comment period, the finalized rules will be sent to the Attorney General’s office and then the Health Council. If approved, they will then be submitted to the Legislature’s Administrative Rules Committee for review. If passed, the rules would go into effect July 1, 2018 and would carry the force of law.
In addition to the Department of Health needing to be challenged, they must be stopped. What they’re proposing is not only a blatant disregard for legislative intent, but the law itself. If they’re allowed to get away with this, it only sends the message that their position is the one that should reign supreme.