Homemade food vendors sue North Dakota over sale limitations

May 13, 2020 GMT

BISMARCK, N.D. (AP) — North Dakota homemade food vendors have sued the state health department over new rules they say restrict their sales.

Attorneys with the Institute for Justice are representing five plaintiffs in their case against the state, arguing that the new rules contradict a 2017 law intended to expand cottage food sales.

But state health officials say the cottage foods law needs to be clear on which types of food can be sold and that public health needs to be protected. The health department’s rules went into effect Jan. 1.

Meanwhile, cottage food vendors say the department’s limitations on what food can be sold hurts them financially, especially during the coronavirus pandemic.


“North Dakotans wanted food freedom, and the Legislature gave it to them, but now the department has taken it away, and as a result, hundreds if not thousands of people have lost a way to support their families and their farms,” Erica Smith, senior attorney at Institute for Justice, told the Bismarck Tribune in a report published Tuesday.

Cottage foods are typically homemade, baked or canned at home.

The plaintiffs filed their lawsuit in March in Burleigh County to overturn the health department’s rules, which allow only shelf-stable foods, such as snack foods and desserts, as well as perishable baked goods and raw poultry, according to Smith’s interpretation.

Plaintiff Summer Joy Peterson, who farms near New Leipzig, said the rules have not only limited what she can sell but also made what’s allowed for sale more ambiguous.

The family now sells breads, fruit pies, some cookies and eggs. But because of the rules, they no longer sell low-acid, pressure-canned food such as corn, beans, peas, vegetables soups and a specialty mustard corn relish.

“People need food, and they’re not being able to find it easily in the grocery stores,” Peterson said.

The health department declined to comment while litigation is pending.

But state health officials will seek dismissing the claims brought against them, arguing that the plaintiffs haven’t exhausted their administrative remedies, the newspaper reported.

Smith, however, said that’s “an insulting argument,” given the public’s strong opposition to the rules in the hearing and comment process.