North Dakota: Judge Restores Food Freedom Act

Preserved foods in mason jars on a counter

On December 10 1, District Court Judge Cynthia Feland put an end to one of the more ambitious power grabs by a government agency in the area of local food regulation when she ruled that the North Dakota Department of Health (NDDH) exceeded its authority by adopting rules that ban the unregulated sale of some homemade foods that the Legislature allows to be sold under the Cottage Foods Act [also known as the 2017 North Dakota Food Freedom Act (FFA)]. Under the FFA any producer can sell cottage food products directly to a consumer without regulation 2. In her decision, Judge Feavel enjoined NDDH from enforcing the cottage food regulations; the department has decided not to appeal the ruling so the judgement is final. Moreover, NDDA will not be working through its allies in the state legislature to introduce legislation to amend the GGA this session, a move the department made in 2019. The filing deadline for bills in the 2021 session was January 25.

Attorneys for the Institute for Justice represented five cottage food producers challenging the rules. The case boiled down to the definition of a “cottage food product.” The FFA defines a “cottage food product” as “baked goods, jams, jellies, and other food and drink products produced by a cottage food operator”3. The only food the Act expressly bans the sale of are “uninspected products made from meat” (the sale of uninspected products from poultry is allowed if the cottage food operator slaughters no more than 1000 birds a year). The judge found that “nowhere in the Cottage Food Act is the Department of Health granted any authority to further restrict foods that can be sold under the Act.”

The cottage food regulations the department promulgated went into effect on January 1, 2020. The regulations marked the fourth time in NDDH had tried to water down the FFA since its passage 4. Shortly after legislation passed in 2017, NDDH issued a guidance document for the FFA that prohibited the sale of a number of foods under the FFA other than meat. Producers under the FFA didn’t abide by NDDH’s interpretation of the law; in 2018 the department followed up with proposed rules that would have again banned the unregulated sale of a number of foods legal under the FFA 5. When that effort failed, NDDH through its allies in the legislature introduced a bill, Senate Bill SB 2269, that as introduced would have not only prohibited the unregulated sale of a number of foods allowed under the FFA but also would have banned the unregulated sale of all drink products; the House of Representatives voted down this bill. The regulations NDDH issued at the end of 2019 banned the unregulated sale of many foods requiring time and temperature control that were legal under the FFA as well as low-acid canned foods that were also under the FFA’s definition of “cottage food product.”

A number of foods NDDH banned in the regulation would have been banned if SB 2269 had passed6. The judge noted in her opinion that “the Department does not cite to any legal authority establishing or even suggesting that if the Legislature fails to pass a law an agency wants, the agency can then enact the law on its own through the back door with rulemaking. Allowing such an end run directly undermines the clear legislative intent.”7

Judge Feland further stated, “Although the department claims that it has the general authority to enact rules governing food safety, the agency cannot adopt rules that contradict or conflict with an unambiguous act of the legislature. The Department’s power under the Cottage Food Law is limited to merely “providing assistance, consultation, or inspection, upon request, of a producer,” and conducting investigations upon complaints 6. Any general authority the Department has to regulate matters of health and food safety cannot extend to restricting the sale of homemade foods specifically allowed under the Cottage Food Act.

The hope is that NDDH going forward will work with cottage food producers to help them succeed rather than limiting the foods they can sell under the FFA. The food freedom laws passed in North Dakota, Wyoming, Utah, and some 80 Maine towns have been an unqualified success; as far as is known, not a single foodborne illness has been attributed to a producer operating under those laws.

With the COVID crisis and the resulting upheaval in the conventional food system, local food producers are more important than ever; the best way to increase their numbers is through the passage of laws at the state level allowing unregulated sales of food from local producers direct to consumers. The more local food producers there are, the safer the food supply, the stronger the local economy, the more self-sufficient communities will be in food production, and the better the health of the state’s residents.

Congratulations to the plaintiffs in the case, cottage food producers Danielle Mickelson, Lydia Gessele, Lonnie Thompson, Summer Joy Peterson and Naina Agarwal as well as to Institute for Justice Attorneys Erica Smith and Tatiana Pino who provided their representation. Congratulations also to dairy farmer LeAnn Harner for her continued great work on behalf of North Dakota Food Freedom.

1. Conor Beck, “Victory for Food Freedom In North Dakota: Homemade Food Producers Restore Food Freedom to North Dakota”, Institute for Justice (ij.org); December 10, 2020. Accessed at https://ij.org/press-release/victory-for-food-freedom-in-north-dakota-homemade-food-producers-restore-food-freedom-to-north-dakota/

2. Pete Kennedy, “Governor Signs North Dakota Food Freedom Act”, Farm-to-Consumer Legal Defense Fund (farmtoconsumer.org); April 14, 2017. Accessed by https://www.farmtoconsumer.org/blog/2017/04/14/north-dakota-food-freedom-act-going-governor/

3. NDCC 23-09.5 “Cottage Food Production and Sales”, North Dakota Century Code, Title 23 Chapter 09.5, North Dakota Legislature website (legis.nd.gov). Accessed at https://www.legis.nd.gov/cencode/t23c09-5.pdf#nameddest=23-09p5-02

4. Pete Kennedy, “Victory in North Dakota: Food Freedom Act Intact”, A Campaign for Real Milk (realmilk.com); March 23, 2018. Accessed at https://www.realmilk.com/victory-north-dakota-nddh-withdraws-proposed-rules/

5. Pete Kennedy, “The Department of Control Strikes Again”, A Campaign for Real Milk (realmilk.com); April 2019. Accessed at https://www.realmilk.com/the-department-of-control-strikes-again/

6. “Bill Action for SB 2269”, North Dakota Legislative Branch website (legis.nd.gov). Accessed at https://www.legis.nd.gov/assembly/66-2019/bill-actions/ba2269.html

7. “Food Freedom Timeline”, North Dakota Food Freedom website (ndfoodfreedom.com). Accessed at https://www.ndfoodfreedom.com/timeline

Victory in North Dakota: Food Freedom Act Intact


One of the more brazen power grabs involving local food in recent years came to end March 21 when the North Dakota Department of Health (NDDoH) withdrew proposed rules that would have substantially watered down the North Dakota Food Freedom Act (FFA), groundbreaking legislation that passed in 2017.

The FFA allows producers to sell any food (referred to as cottage foods in the legislation) without regulation except meat, dairy and foods with either meat or raw dairy as an ingredient. The FFA gave NDDoH no rulemaking power but that didn’t stop the department from trying to weaken the legislation. NDDoH convened a workgroup after the bill passed last year to draft regulations governing the FFA; the composition of the workgroup was stacked against its members that had supported the legislation.

Last month NDDoH published proposed rules that were an attempt to substitute its judgment for the legislature’s and reduce the number of cottage foods that could be sold without regulation from what the FFA allowed.

The proposed rules prohibited the sale of canned foods such as sauerkraut or pickles if their pH and/or water activity was above a certain level; nothing in the FFA contained this requirement. The rules required that producers sell only whole frozen poultry; nothing in the FFA has this limitation. Moreover, North Dakota has adopted the federal regulation governing the production and sale of poultry which allows the sale of fresh poultry, poultry parts and value-added products such as chicken pot pie and chicken broth.

The proposed regulations would also have prohibited the production and sale of certain dry goods, dehydrated and beverages such as kombucha that are all allowed under the FFA.

Opposition to NDDH was widespread. North Dakota Farm Bureau which had supported the FFA worked to get the department to withdraw the proposed rules. The national nonprofit Institute for Justice also made an impact, pointing out in a letter to NDDH Commissioner Mylynn Tufte by one of its attorneys that under the FFA a state agency could not regulate the preparation or sale of cottage food products.

Dairy farmer LeAnn Harner who heads the advocacy group North Dakota Food Freedom helped coordinate opposition to the rules, Harner, who was instrumental in the passage of the FFA, worked with legislators to move NDDoH to honor the legislative intent that there be no regulation of cottage foods.

The key legislators in getting NDDoH to withdraw the rules were Representative Luke Simons (the sponsor of the FFA) and Representative Aaron McWilliams. In a statement posted on the North Dakota Food Freedom Facebook page, Rep. McWilliams said that he and Rep. Simons had met with Commissioner Tufte along with a representative from the governor’s office and explained to them the legislative intent behind the FFA. McWilliams said, “We discussed what the role of the health department would be with cottage food producers, mainly education.”

On March 20 NDDoH issued a news release stating it was “closing the public comment period and cancelled three hearings inviting comment on proposed cottage food laws [scheduled for March 22nd and 23rd]”–meaning it was withdrawing the proposed rules.

The FFA is staying intact. The department’s bureaucratic power grab came up short.

Governor Burgum with supporters of the North Dakota Food Freedom Act

Food Freedom Movement Spreading State to State

In March 2015, Wyoming passed its Food Freedom Act, a groundbreaking law that deregulates many homegrown farm foods sold direct-to-consumer. Wyoming State Representative Tyler Lindholm, who co-sponsored the bill, predicted that farmers in the state would immediately feel positive impacts from the changes in regulation.

So how has it been going?

Lindholm says, “Wyoming’s first season under the Wyoming Food Freedom Act was one of bounty without a doubt…the results have been exactly what we all knew already. The free market will thrive if given the chance…I’ve talked with several Farmers Markets and their managers and have found the numbers being reported as doubling the number of consumers and produces in a multitude of products.”

Wyoming’s success is apparently inspiring other states, including Utah, to consider their own food freedom bills.

Read more via Reason.com.

To learn more about raw milk and other nutrient dense foods, visit westonaprice.org