ND Health Department proposes cottage foods rules

BISMARCK - Proponents of a state law that opened up what home cooks and farmers can sell to the public without licensing or inspection say rules for cottage foods proposed by North Dakota Department of Health would block much of what they hoped t...
Green beans are among the home-canned foods that would not be allowed for sale under proposed rules from the North Dakota Department of Health. Courtesy photo / Pixabay

BISMARCK - Proponents of a state law that opened up what home cooks and farmers can sell to the public without licensing or inspection say rules for cottage foods proposed by North Dakota Department of Health would block much of what they hoped to accomplish with the law. But a health department official says the law is one of the nation's most lenient, even with the proposed rules.

House Bill 1433, referred to by supporters as the North Dakota Food Freedom Act, was signed by Gov. Doug Burgum on April 12, 2017. The legislation allows for direct sale of uninspected homemade products, including baked goods, jams, jellies and pickles, as well as some farm products, including eggs. Such transactions are allowed virtually anywhere other than a licensed, inspected food business and must be direct, not via internet or mail.

The proposed rules, among other things, would prohibit sales of home canned goods that don't use approved recipes or include nonacidic canned foods, such as green beans, dehydrated items without checks on water levels, and refrigerated goods that aren't kept frozen before selling. They also lay out requirements for labeling.

The proposed regulations would undermine the goals of the law, say LeAnn Harner, an advocate on behalf of the North Dakota Food Freedom Act. But Julie Wagendorf, director of Food and Lodging at the North Dakota Department of Health, says the rules are necessary to prevent foodborne illness outbreaks.

"The rules provide standards for providing safeguards to consumer health," she says. "That's what our end goal is."

The law is in a section of the North Dakota Century Code in which the North Dakota Department of Health is allowed to make rules. Any proposed rules must go through a comment period, which is the current state of the proposed rules. After consideration of comments and any changes, the rules go to the North Dakota Health Council, which is the board overseeing the health department, and to the North Dakota Attorney General's Office. Once OK'd by those entities, the rules will go to the interim rule committee of the North Dakota Legislature. If the rules make it through those steps, they would go into effect on July 1.

Wagendorf says even with the proposed rules, the new law, which went into effect last summer, still will give North Dakota one of the most open cottage foods laws in the country. Few states allow any sales of refrigerated foods by uninspected entities. Most states require some sort of registration for cottage foods producers, which North Dakota's does not. And most states require labeling; the only labeling requirements under the North Dakota law are a label that says the products did not come from an inspected kitchen and a label for safe handling for refrigerated items.

"The state of North Dakota is actually more lenient than almost all cottage food laws," she says, adding that the law will stop local health districts from making more stringent rules as well.

Harner says the proposed rules go against the spirit of the law, which was written with Wyoming's cottage foods law as a model. Wyoming allows nearly anything to be sold, including raw milk products. Citing foodborne illness statistics from North Dakota, Harner points out that there are few cases of home-cooked or preserved food causing problems in the state.

"So where is the outrage? Where is the problem?" Harner asks.

However, Wagendorf says total numbers don't tell the whole story.

"Food borne illness can be severe, can result in hospitalization and can result in death," Wagendorf says. "One case of botulism would be a public health emergency in the state of North Dakota. One case of E.coli in a child that is aged under 5 years would be a public health emergency."

Harner says advocates for the Food Freedom Act are asking people to share their opinions of the rules with the Health Department. The website www.ndfoodfreedom.com will contain tips for comments, she says.

"We're trying to motivate people to get there and pack those hearing rooms to make sure the department of health hears from real people," she says.

Wagendorf says a "handful" of comments already have come in. The comment period is open until April 4. Written comments on the proposed rules can be submitted to the North Dakota Department of Health through April 4. Comments can be sent to Division of Food & Lodging, 600 E. Boulevard Ave., Bismarck, ND 58505-0200 or to foodandlodging@nd.gov; those with oral comments can call 701-328-1291.

Meetings about the proposed rules are scheduled for Room 212 of the North Dakota Department of Health in Bismarck from 9 a.m. to 11 a.m. on March 22, the training room of the Southwestern District Health Unit in Dickinson from 1 p.m. to 3 p.m. on March 22, and the Oak Room of Fargo Cass Public Health from 10 a.m. to noon on March 23.

To read the proposed rules or for more information, visit " target="_blank">www.ndhealth.gov/foodlodging.