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