Despite the popularity of Kathy’s little free pantry among her neighbors, members of the Asotin County Board of Health decided to hamstring her creative solution to hunger with red tape.
Washington’s Retail Food Code, which regulates food establishments within the state, does not mention “little free pantries.” Rather than taking a hands-off approach, as many other counties have, Asotin County closed Kathy’s pantry down.
The county concluded that little free pantries on residential property should be treated like large-scale food banks and soup kitchens. That means that, even though many in her community are struggling with food insecurity, the county has prohibited Kathy from sharing food with them at her own home until she follows the long list of “Donated Food Distributing Organization” requirements.
These organizations must follow dozens of regulations. Among other requirements, a Donated Food Distributing Organization must undergo the complicated and burdensome process to become a 501(c)(3) charitable nonprofit organization, submit an annual written plan detailing its operations, and pay an annual fee. Even if Kathy had the time or means to jump through so many regulatory hoops, the county would still ban her from sharing fresh produce, breads, and other fresh food with her neighbors. Instead, Kathy could only share shelf stable foods with “tamper-evident” packaging.
The county cannot justify these prohibitively burdensome regulations with concern for food safety. Before the county told her to shut her pantry down, Kathy inspected the donated food daily and threw out anything that she would not feed to her own family. She is even willing, during the COVID-19 pandemic, to disinfect the pantry to help keep her neighbors safe and healthy. No one has ever reported getting sick from food taken from Kathy’s pantry. Such a small risk of illness—especially in a time of economic uncertainty—does not justify such burdensome regulations.
Other private citizens are allowed to give away—and even sell—produce, perishables, and other types of food under similar circumstances without the many restrictions placed on Kathy. For instance, Kathy can have people over for dinner—obviously. And the state does not regulate serving food at private events or neighborhood potlucks. Nor does it regulate selling food at produce stands or charitable bake sales.
But the minute Kathy tries to feed the needy at her home, she must comply with food bans and red tape. The county is preventing Kathy from sharing food with the people who need it most.
The Three Plaintiffs
All three plaintiffs are residents of the Lewiston-Clarkston Valley, an area on the southern border of Washington and Idaho. Kathy Hay wants to operate a little free pantry in her backyard, while Dawna Larson and Brooklyn Anderson want to use her pantry.
Kathy lives with her husband and three children in Clarkston, Washington in Asotin County. Her husband works as an electronics technician and Kathy homeschools their three children. Like many in Clarkston and the surrounding area, her family has sometimes struggled to put food on their table.
Since she knows firsthand how difficult it is to worry about feeding herself and her family, Kathy wanted to find a way to help others struggling with the same problem. She hoped that opening a little free pantry would not only meet that immediate need, but also inspire a movement in her community to help each other with food insecurity.
Kathy hopes that this lawsuit will allow her and others in the community to have a little free pantry without having to grapple with food bans and pages of paperwork.
Dawna lives with her wheelchair-bound father just across the river in Lewiston, Idaho. Because her father requires so much care, Dawna recently had to quit her job to become his full-time caretaker. They rely on her father’s social security benefits and food donations to make ends meet.
When Kathy’s little free pantry was open, it was Dawna’s first stop for food before, in Dawna’s words, “counting pennies at the store.” Kathy’s pantry was “a real blessing” to Dawna and her father. Now that the county has shut it down, Dawna can no longer rely on the pantry to help feed her family. Dawna would like to use Kathy’s little free pantry to help relieve the financial pressure she and father live with every day.
Brooklyn has experienced homelessness off and on since she turned 18. Now 21, she stays with friends and family near Clarkston. She has medical disabilities which prevent her from working.
Brooklyn struggles to find enough food to eat between trips to the local food bank, and relied on Kathy’s pantry, in Brooklyn’s words, “to pick up the slack.” Since the little free pantry has been closed, Brooklyn cannot afford to buy the food she needs on a daily basis. Brooklyn wants to be able to take food from Kathy’s little free pantry because she would otherwise go hungry.
Kathy, Dawna, and Brooklyn are challenging the constitutionality of the county’s policy of banning little free pantries from having fresh produce and bread and other foods that lack tamper-evident packaging, and applying Donated Food Distributing Organization regulations to little free pantries. They are also challenging the constitutionality of the Donated Food Distributing Organization regulations, as applied to people like Kathy, Dawna, or Brooklyn. Both the policy and the regulations violate their due process and equal protection rights under the Fourteenth Amendment of the U.S. Constitution.
The due process guarantee provides that no state shall “deprive any person of life, liberty, or property, without due process of law.” It protects the fundamental rights of Americans that are deeply rooted in our nation’s history and traditions. One of those fundamental rights is the right of community members, like Kathy, to share food with their neighbors, including the needy, at their own homes. Americans, especially people in need like Dawna and Brooklyn, also have a fundamental right to accept food willingly given in charity. A ban on little free pantries having fresh food and the application of prohibitively burdensome regulations violates both of those fundamental rights.
The Due Process Clause also guards against arbitrary or irrational regulations. A ban on sharing and receiving produce, bread, and other fresh food from little free pantries is irrational. Requiring Kathy to become a 501(c)(3) organization, submit a written plan, and pay an annual permit fee just to share food in her backyard is likewise irrational. Little free pantries, unlike institutional food banks, have no inherent stamp of safety. These pantries represent a voluntary agreement between people donating and people taking food. And they work so well to combat food insecurity without endangering the public health because people in need, just like everyone else, have the discretion to choose which foods they feel comfortable eating.
The Equal Protection Clause requires the government to treat similarly situated individuals the same. Those who want to share or accept food from a little free pantry are similarly situated to those who want to share or accept the very same food at a private event, potluck, produce stand, or charitable bake sale. If community members are allowed to give away—and even sell—produce, bread, and other foods from their homes without submitting to burdensome regulations, then community members who want to give those foods away at their homes using a little free pantry should not be required to follow those regulations either.
The county’s policy is particularly outrageous considering how many people in the community struggle with hunger and food insecurity, especially when the nation is in the grip of a pandemic. It has never been more important for people like Kathy to be able to freely share food with people in need like Dawna and Brooklyn.
The Litigation Team
Kathy, Dawna, and Brooklyn are represented by Institute for Justice Senior Attorney Erica Smith and Constitutional Law Fellow Caroline Grace Brothers.
About the Institute for Justice
The Institute for Justice is the national law firm for liberty and the nation’s premier defender of property rights. IJ defends the rights of homeowners, home bakers, and those who wish to take care of the homeless and people in need. For more on the Institute for Justice and its work, visit www.ij.org.
IJ’s National Food Freedom Initiative
This case is part of IJ’s efforts to respond to the current health and economic crisis by working to cut red tape hampering individuals’ ability to help one another. It is also an extension of IJ’s National Food Freedom Initiative, which IJ launched in 2013 to bring property rights, economic liberty and free speech challenges to laws that interfere with the ability of Americans to produce, market, procure and consume the foods of their choice. IJ has won constitutional challenges to Wisconsin’s ban on the sale of home-baked goods, Minnesota’s restrictions on the right to sell home-baked and home-canned goods, and Florida’s labeling restrictions on all-natural milk. IJ has also helped pass laws allowing people to more freely sell homemade foods in several states.
IJ is currently litigating cases challenging restrictions on the right to sell homemade goods in New Jersey and North Dakota and the rights of Minnesotan farm wineries to make wines with out-of-state grapes.
Learn more at http://ij.org/initiatives/food-freedom/.