Thanks to a lawsuit she filed with the Institute for Justice, Kathy Hay can now share food with her neighbors in Asotin County, Washington, using a “little free pantry” in her backyard.
Similar to little free libraries, little free pantries are small structures where people can take or donate food. But before the lawsuit, Kathy wasn’t allowed to use the little blue cupboard in her backyard to help feed members of her impoverished community without obtaining government approval and following a list of unnecessary demands from the county health department. The department ordered Kathy to shut her pantry down until she complied with their demands. A few months later, they even sent her an invoice—totaling over $2,800—requiring her to pay them for their enforcement action against her.
But that all changed after Kathy—joined by Dawna Larson and Brooklyn Anderson, two of Kathy’s neighbors who relied on food from her pantry—teamed up with the Institute for Justice to file a constitutional lawsuit in federal court against the county and state health departments. In July 2021, they claimed final victory after entering into a settlement agreement that waived the $2,800 invoice and allowed Kathy to reopen her little free pantry. Now Kathy—and everyone else in Asotin County—can share shelf-stable, commercially-packaged food and fresh produce with neighbors without unreasonable government restrictions.
Despite the popularity of Kathy’s little free pantry among her neighbors, members of the Asotin County Health District (the county health department) 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 had, the county health department closed Kathy’s pantry down.
If she wanted to reopen, the health department required Kathy to submit a detailed written plan to demonstrate her “competency” to run the pantry, pay a plan review fee, and pay the department for their enforcement action against her. The department threatened Kathy with criminal charges and fines if she did not comply.
The health department also initially 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 department prohibited Kathy from sharing food with them at her own home until she followed 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 health department still banned 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.
And a few months after the health department shut down her pantry, they sent Kathy an invoice totaling $2,853.60 for their enforcement action against her. It included charges for the time department employees spent making an initial “site visit” to her pantry ($78.00), discussing her pantry at a monthly meeting ($150.00), answering media inquiries about her pantry ($37.20 and $139.80), and working on an “ordinance” ($532.80).
The county health department could not justify these prohibitively burdensome regulations with concern for food safety. Before department employees 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. No one ever reported getting sick from food taken from Kathy’s pantry. Such a small risk of illness 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 tried to feed the needy at her home, she had to comply with food bans and red tape. The county health department was 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 can now operate a little free pantry in her backyard, while Dawna Larson and Brooklyn Anderson can now 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.
Thanks to this lawsuit, Kathy and others in the community can have a little free pantry without having to grapple with food bans and pages of paperwork. Kathy looks forward to helping build and launch many more pantries in other locations in her community now that the health department’s restrictions are gone.
Dawna lives just across the river in Lewiston, Idaho. Before her father passed away, Dawna had to quit her job to become his full-time caretaker. They relied on her father’s social security benefits and food donations to make ends meet.
Before the health department shut it down, Kathy’s little free pantry 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 pantry is open again, Dawna can use Kathy’s little free pantry to help relieve the financial pressure she still lives with every day.
Brooklyn has experienced homelessness off and on since she turned 18. Now 22, she stays with her father in 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.” When the little free pantry was closed, Brooklyn could not afford to buy the food she needed on a daily basis. Now, after the little free pantry has reopened, Brooklyn has a reliable source of food again. And now that little free pantries are allowed to operate freely in Asotin County, Brooklyn and her father decided to open a pantry near their house too.
Kathy, Dawna, and Brooklyn challenged 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 also challenged the constitutionality of the Donated Food Distributing Organization regulations, as applied to people like Kathy, Dawna, or Brooklyn. Both the policy and the regulations violated their due process and equal protection rights under the Fourteenth Amendment of the U.S. Constitution. Kathy also challenged the constitutionality of the invoice that the Health District sent her, as a violation of her right to be free from excessive fines under the Eighth Amendment and her right to procedural due process under the Fourteenth Amendment.
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 submit a written plan and pay a plan review 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 Excessive Fines Clause of the Eighth Amendment prohibits the government from imposing fines that are disproportionate to a person’s offense. An invoice of over $2,800 is grossly disproportionate to the “offense” of opening a pantry on one’s own property without following local requirements to do so. The Due Process Clause of the Fourteenth Amendment also prevents the government from imposing fines without providing notice and a fair opportunity to be heard. Kathy was never informed that the Health District would send her the invoice if she opened her pantry, and she was never given the means to challenge the invoice in a hearing.
The county health department’s actions were particularly outrageous considering how many people in the community struggle with hunger and food insecurity. 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 were represented by Institute for Justice Senior Attorney Erica Smith Ewing and Attorney 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 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 and North Dakota’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 Nebraska and the rights of Minnesotan farm wineries to make wines with out-of-state grapes.
Learn more at https://ij.org/initiatives/food-freedom/.
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