Administrative Rules Committee approves cottage food rules

North Dakota Legislators have approved a list of additional rules for cottage food products. The rules were brought forth by the North Dakota Department of Health (NDDoH). In a press release issued on Tuesday, Dec. 3., the agency says these additions to the original cottage food law commonly known as the North Dakota Food Freedom Act which went into effective Aug. 1, 2017.

The North Dakota Food Freedom Act began as a way to allow the production and sale of home-prepared (or cottage) foods such as baked goods, preserves, and pickled items. Now with the approval of the rules, some of the same cottage food producers who organized behind the North Dakota Food Freedom Act are unsure about the adoption of the rules citing potential overreach on the part of the NDDoH, and also note that the same rules that were just approved were previously rejected by the 2019 State Legislature.

Representatives Beck, Marschall and Steiner voted to reject the restrictions on cottage food. Representatives Devlin, Boschee, Satrom, and Weisz plus Senators Pollman, Heckaman, Klein, Lemm and Rust voted to keep the restrictions. Representatives Kim Koppelman, Pyle, Dan Ruby and Toman were absent.

Transcript staff reached out to District 23 Senator Joan Heckamann to understand more about her perspective and reasoning in voting to approve the additional rules. She explained that the rules provide clarification to three areas of the North Dakota Food Freedom Act.

1) Definitions for “ baked goods, jams, jellies, and other food and drink products” used in Section 23-09.5-01 Cottage Food Production and Sales.

2) Details regarding labeling describes safe handling instruction, products disclosure statements for baked goods and temperature controls for safety.

3) Section 23-09.5(9) states the Department of Health or local regulating authority may conduct an investigation of illness complaint or environmental health complaint.

Heckaman also explained that the NDDoH has the statutory obligation in N.D.C.C. 23-01-03.3 to establish standards, rules, and regulations which are found necessary for the maintenance of public health, including sanitation and disease control. Among the objections to the rules, very few were in regard to the food safety aspect. Heckaman said that most objections centered about the individual rights.

One written objection applauded North Dakota for its movement for food freedom, and objected to these restrictions for the following claims:

• Homemade foods are just as safe as commercially produced foods.

• Homemade food businesses provide their owners with crucial income, particularly for women in rural areas

• Rules that contradict the clear language of a statute are illegal. She cited the Food Freedom Act and also referenced the intent of the 2019 bill that was defeated (again, Legislative Council states that a defeated bill cannot be referenced for intent)

In terms of why Heckaman voted to retain the additional rules, she says, “The bottom line for me was the health and safety of consumers. If foods need to be refrigerated and someone buys them at a farmer’s market or craft fair and gets ill from the product, someone pays-either by getting very ill or someone else may get sued. These administrative rules protect both the producer and consumer. We want everyone to be safe and healthy. My focus is on both the producer and consumer. I don’t want the Cottage Food Industry in North Dakota to have to go to Commercial Kitchens.”

The clarifying language will go into effect Jan. 1, 2020. More information can be found on the NDDoH website at health.nd.gov/cottage-food.