north dakota cottage food law

Rhonda Koch-McCoy, of Bismarck, was selling her dilly beans for $8 a jar on Aug. 6 at the annual Farmers Market Day hosted by the North Dakota Department of Agriculture outside the state Capitol.

BISMARCK — North Dakota health officials on Wednesday, Aug. 14, approved proposed rules on cottage foods for public comment amid an ongoing dispute over what foods state law allows.

The 2017 Legislature passed a bill expanding direct-to-consumer sales of uninspected home-baked and canned items. Cottage food producers have since clashed with the state Department of Health over proposed rules essentially limiting what foods can be sold.

The rule-making process paused in 2018. The 2019 Legislature considered a bill to clarify legal definitions and intent, which some bill opponents saw as onerous in its food restrictions.

The much-amended bill — which ultimately failed in the House after arguments promoting “food freedom” and liberty in selling home-prepared foods like “Grandma’s apple butter” — centered on low-acid canned foods such as green beans.

Low-acid canned foods can pose a risk for botulism if not done correctly. The 2017 law does not require licensing, specify labeling or mandate kitchen inspections, but the state Health Department can investigate complaints of illness.

Now with the State Health Council’s unanimous OK, the public will have opportunity to comment on the proposed rules which mirror the original 2019 bill in prohibiting low-acid canned foods and requiring frozen transport for time- and temperature-controlled foods such as custard pies.

The proposed rules also outline labeling requirements and include 21 definitions for the law.

A public hearing will be set in the near future before the State Health Council, as well as a time period for written comments.

Eventually, the rules would go to the Legislature’s interim Administrative Rules Committee for adoption, perhaps as early as December.

State Health Officer Mylynn Tufte told the council her department must create rules for the law even after the failed 2019 bill.

“The Department of Health still needs to do its job for this law, and what we’re asking for is to put the rules forward for this law,” Tufte said.

Cottage food proponents have opposed rules, even disputing the Health Department’s legal authority to make rules, though the council, as the department’s governing and advisory board, does have authority in statute.

On Farmers Market Day Aug. 6 at the state Capitol, Mercer-area farmer Annie Carlson said cottage food sales have generated “zero issues.”

“Obviously our producers who are doing cottage foods are doing it safely,” she said under her booth’s canopy. Requesting Health Department food safety training of cottage food producers could be one solution to satisfy concerns, she added.

Cottage food sales often are a springboard for farmers market vendors and commercial kitchen operators, according to Carlson.

“How do you know ... unless you try it?” she said.

Nearby, Rhonda Koch-McCoy, of Bismarck, was selling canned dilly beans, beets and spicy pickles, which were proving popular in her first farmers market appearance.

“But I will be doing more because this has been amazing,” she said.

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