Exactly two months ago, we published an article in relation to current efforts by the North Dakota Department of Health to undermine our state’s Food Freedom Law and its associated cottage food industry. If you’re unfamiliar with the issue, I highly recommend that you catch up by reading the synopsis of events that led us here.
As I pointed out in the aforementioned article, make no mistake about it, the proposed rules being propagated by the Health Department not only undermine the law itself, but they are an usurpation of power and an end-around of the legislative process. If successful, it causes us to question why we even bother with the legislative process in the first place?
Following a public hearing that was held on October 2nd, a ten-day commentary period took place in which people from all sides of the issue could express their opinions on the proposed rules. As you can read in this Williston Herald article, all but a few were written in opposition. Yet, if you think that would deter the Health Department from continuing their effort of political conquest, you’d be wrong.
As you can see here on the North Dakota Food Freedom website, at the end of October, the 9-member North Dakota State Health Council — which is the Health Department’s governing body and advisory board — issued notice that they were holding a special meeting to consider the proposed rules. That notice was given late in the afternoon of Friday, October 25th. The problem? The meeting was held on Monday, October 28th. This left “no opportunity for [opponents] to contact the Health Department for a copy of what [they were] proposing to their Council after seeing the comments.”
By the way, the only item on the State Health Council agenda was “Approval of proposed rules to NDAC 33-33-10, Preparation of Cottage Food Products for Sale”. And so, it comes as no surprise that they approved the power grab being proposed by the Health Department.
As a result of the approval, the legislature’s 16-member Administrative Rules Committee will now hear the proposal on Tuesday, December 3rd, at 9am – 4pm. As you can see on the North Dakota Legislative website, the makeup of the committee is 11 representatives and 5 senators.
If each member of the committee are present and stick to the vote they made on Senate Bill 2269, during the 2019 Legislative Session, the committee would defeat the proposed rules on a vote of 9-7. You might recall that SB 2269 was the failed legislative effort to accomplish what the Health Department is now attempting administratively.
We shouldn’t forget that not only did the North Dakota Legislature pass the current Food Freedom Law back in 2017, but the vote to defeat SB 2269 in April of this year wasn’t even close (26 Yea, 65 Nay). This begs the question— What’s the point of even having such a vote if the Health Department can just go through the administrative process to do what they want anyhow?
I truly believe that this effort to undermine Food Freedom is far bigger than the pathetic administrative rules proposed by the North Dakota Department of Health. If members of the Administrative Rules Committee have even a particle of respect for things like the legislative process and three branches of government, they will emphatically defeat this power grab by the Health Department. If the committee approves, then they are complicit to empowering a bureaucracy that plagues our state government.
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NOTE: I’m told that the Institute for Justice plans on sending representation to the December 3rd hearing. Remember, it was one of their attorneys who threatened a lawsuit over proposed rules in 2018. Those were ultimately withdrawn and the Health Department backed down, only to come back for another go at it this year.