Late last month, we reported that our state’s fourth branch of government – otherwise known as the North Dakota Department of Health – was overstepping its bounds and proposing rules that would basically gut the recently passed Food Freedom law. As a result of the proposal, the Health Department scheduled three public hearings to be held in Bismarck, Dickinson, and Fargo on March 22-23, with an associated comment period.
What ensued, following the announcement of the Health Department’s proposal, was nothing short of a major pushback from the cottage food industry. In a move that I’ve never seen before, the North Dakota Department of Health actually backed down. You can see their News Release announcing the cancellation of the public hearings here.
This win for Food Freedom was a collective effort. Attorney Pete Kennedy – who helped write the law – did the initial research on the Health Department’s lack regulatory power. He also wrote an Action Alert for the Weston A. Price Foundation – a health food advocacy nonprofit – whose purpose is to restore “nutrient-dense foods to the human diet through education, research and activism”. The Farm-to-Consumer Legal Defense Fund – a nonprofit who “protects the rights of farmers and consumers to engage in direct commerce” – also sent an Action Alert.
But the hardest hitting communication came in the form of a letter last week from Erica Smith— an attorney at Institute for Justice. It’s nothing short of phenomenal. Smith pulled no punches as she wrote to State Health Officer Mylynn K. Tufte:
“I am writing to you regarding the proposed rules for administering North Dakota’s Food Freedom Act, which were proposed on February 15. These proposed rules contradict the plain text of the Act and would thus be ultra vires. Accordingly, we strongly suggest that you withdraw the proposed rules from consideration.
“I am a constitutional attorney at the Institute for Justice, a national nonprofit organization that fights against laws that irrationally burden people’s right to pursue their chosen livelihood. One of my areas of expertise is cottage food law. I was the attorney who successfully sued Minnesota (Astramecki v. Department of Agriculture) and Wisconsin (Kivirist v. Department of Agriculture) concerning their unconstitutionally restrictive cottage food laws, and I am currently litigating against New Jersey regarding its total ban on the sale of cottage foods. In addition, I litigate against state agencies that enact ultra vires rules. See, e.g., Espinoza v. Mont. Dep’t of Rev., No. DV-15-1152(D) (Mont. Dist. Ct. Mar. 31, 2016).”
It’s interesting to note that the definition of “ultra vires” is “beyond one’s legal power or authority”. As Smith points out later in her letter, “Rules that contradict the language of a statute are ultra vires and invalid.” She lays out the legal argument proving that the North Dakota Department of Health doesn’t have the authority to impose the rules they’re proposing. She ends the letter by saying:
“Therefore, we strongly encourage you to withdraw these rules. Cottage food producers should be allowed to sell all foods not explicitly excluded by statute. Thank you, and please contact me if you have any questions.”
Read the letter. It’s worth your time. You’ll also notice that it was sent to Governor Doug Burgum, who signed the Food Freedom law. I’m told that Governor Burgum’s office was sympathetic, cooperative, and helpful in resolving this issue.
In addition to public feedback and the aforementioned communications from advocacy groups, Rep. Aaron McWilliams (R – District 20) and Food Freedom bill sponsor Rep. Luke Simons (R – District 36) met with Tufte and an attorney for the Health Department on Monday. By Tuesday, the News Release cancelling the hearings was issued.
When I concluded last month’s article, I wrote this:
“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.”
In their initial meeting with Food Freedom advocate LeAnn Harner, the Health Department wouldn’t budge. What we see in this victory for Food Freedom is how vitally important it is that people collaborate in pushing back against government overreach. The easy thing to do for those in the cottage food industry – and others of us who support Food Freedom – would have been to throw our hands in the air and declare ourselves helpless against the Almighty State. The words of Samuel Adams are applicable here:
“It does not take a majority to prevail… but rather an irate, tireless minority, keen on setting brushfires of freedom in the minds of men.”
This wasn’t just a victory for Food Freedom. This was a victory for Liberty in North Dakota.
- Food Freedom Letter Erica Smith