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One American state gets sued for banning sale of homemade food

WND Staff

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'Farmers and families need to have the freedom to feed their communities'

Published May 10, 2020


After successful lawsuits in several states protecting the right of consumers to sell food prepared in their kitchens to neighbors, the Institute for Justice is targeting North Dakota with its National Food Freedom Initiative.

Two women this week joined several other plaintiffs in a lawsuit against the North Dakota Department of Health, which defied its Legislature and adopted the "illegally crippling" Cottage Food Act.

IJ explained the lawsuit "aims to restore the food freedom North Dakotans had from 2017 until 2020, when North Dakotans could sell virtually any homemade food or meal directly to informed consumers."

"The lawsuit has taken on increased importance during the COVID-19 pandemic as consumers need access to safe, fresh and convenient food sources more than ever. The lawsuit now includes five plaintiffs, who all legally sold homemade food for years under the act and are now banned from doing so," IJ said.

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"In a world changed by the pandemic, North Dakota’s farmers and families need to have the freedom to feed their communities," said Danielle Mickelson, a Rolla farmer and mother of six who sold soups under the Cottage Food Act and wants to now start selling pizzas. "For years, I served my customers fresh, healthy products without a single complaint. I consistently get asked when I will be able to sell my soups again."

State lawmakers adopted the Cottage Food Act in 2017, which allowed consumers to sell to consumers. At the time, the Health Department opposed it.

"The department twice asked the Legislature to significantly limit the foods that could be sold under the Act, and the Legislature twice refused," IJ said.

So bureaucrats instead adopted all the restrictions through administrative rules.

"While it was legal to sell homemade foods for three years, many North Dakotans’ way of life improved. Consumers ate fresher foods and sellers earned extra cash to support their families and farms," IJ Senior Attorney Erica Smith said. "Now more than ever, North Dakotans need to make money from the home. But because of the Department’s illegal rulemaking, hundreds of North Dakotans have lost a way to support their farms and families."

The institute's legal team explained the rules "are illegal since agencies cannot enact regulations that contradict state law. While state law allows the sale of any homemade food or meal except certain meat products, the agency’s rule bans all homemade meals. Instead, the rules only allow the sale of shelf-stable foods, perishable baked goods and raw poultry."

Further, the regulations are arbitrary, allowing some foods but not others.

"The Cottage Food Act benefits everyone,” said Summer Joy Peterson, a new plaintiff in the lawsuit. “It gives producers of food the chance to directly sell their products. It protects consumers because they know exactly where the food comes from and how it’s raised or manufactured. I hope our suit restores the law."

IJ previously won cases in Wisconsin, Minnesota, Kentucky, Maryland, West Virginia and Wyoming.