Cottage food activists are reaching out to foodies and Farmers Market fans alike to implore them to speak out against proposed rules they believe will be too onerous and restrictive at an administrative hearing Dec. 3.
The rules were proposed by the North Dakota Department of Health, and mirror a 2019 bill that failed in the last legislative session, amidst dueling arguments about food safety and food freedom.
Mylynn Tufte, North Dakota State Health Officer, said the proposed rules are needed to clarify the legislature’s North Dakota Cottage Foods Act, which went into effect Aug. 1, 2017.
“It’s not uncommon for law to need additional clarification after a new bill is passed,” she said. “The proposed rules clarify definitions and language to the benefit of both business owners and public health. It also addresses public health concerns over low-acid home canned foods that may produce serious illness such as botulism. Our primary goal is to protect the health and safety of North Dakotans and the proposed rules do that.”
Carel Two-Eagle, however, said it appears to her that the Department of Health just wants to industrialize cottage foods, and that runs contrary to legislative instruction.
“The legislature said that the Department of Health is not, under any circumstances, to make rules or regulations or anything regarding cottage foods,” she said. “The governor signed it. He is on board with us. And yet, by God, here they are doing it again.”
The proposal is not going to affect baked goods, jams, jellies, or hundreds of other food and drink products adopted under the original Cottage Foods Act, according to the Health Department.
But Two-Eagle said the rules will add ridiculous restrictions that will tend to make many items unfeasible and unpalatable for the cottage food industry.
“If you make Kugen or cheesecakes, they want you to freeze them,” she said. “That will ruin them. They have all kinds of junk like that in it.”
Two-Eagle said people should be able to simply keep the items appropriately cold and sell them that way.
LeAnn Harner, a cottage food advocate, said she was told repeatedly by the Health Department that there is no intent to regulate “lemonade stands.”
“Yet that is, in essence, what these rules do,” she said.
Selling a sack of cookies to consume at home would be OK, Harner said, by example. Yet selling a single one of the cookies with a napkin would not. Nor could the seller give away a hot cup of coffee to consume with the cookie.
“If someone eats the cookie, you can be accused of having a food establishment and trying to run a restaurant,” Harner said. “We think that is silly. What is the difference if they eat it there? But you cannot have any ready-to-eat foods.”
Items like soup have to be sold frozen, Harner said.
“We cannot keep the same soup in a crockpot, perfectly hot and safe to sell to customers,” she said. “Even though it is the same food, handled safely. It’s just ludicrous.”
The cottage food industry has been operating since 2017 under the new law without the restrictions, Harner said.
“Yet there have been no incidences of food-borne illness associated with cottage foods since the law went into effect,” she said. “Obviously, the producers working with cottage foods out there are doing a bang-up job.”
Some have even met with enough success to start commercial enterprises from their original cottage food idea, Harner added.
“Why the department wants to stifle that creativity and that opportunity, I don’t know, but that is the effect of what they are trying to do here,” she said.