Overreaching Regulators Try to Can Food Freedom Laws

There are no Indian restaurants in Bismarck, North Dakota, but at the local farmers’ market, you could find Naina Agarwal offering vegetarian street foods from her native country, like chana chaat and vada pav. The North Dakota Legislature intended to recognize and promote this kind of small-scale entrepreneurship when it passed a 2017 law allowing the sale of almost any homemade food directly to informed customers. Down in Lincoln, Nebraska, Cindy Harper was excited to sell her sugar cookies and pound cakes after the state Legislature exempted home bakers like her from onerous restaurant regulations in 2019.

Now, regulators in these two Midwest states are trying to do an end run around the legislatures and create their own rules to put a lid on Naina and Cindy’s businesses. IJ joined Naina and Cindy to challenge these illegal restrictions so that the residents of North Dakota and Nebraska can buy and sell the foods of their choice.

In recent years, IJ has worked with state legislatures across America to expand the sale of foods made in home kitchens, helping pass nine bills in eight states and the District of Columbia with model legislation, expert testimony, and on-the-ground activism. These places recognize that such activities are low risk, give consumers greater choice about what to eat, and expand economic opportunity, particularly for women, rural residents, immigrants, people caring for relatives, and others for whom an office job might not be an option. As the COVID-19 pandemic has thrown millions out of work, home-based food businesses offer a safe way for hardworking Americans to support themselves while providing a much-needed service.

When North Dakota passed its Cottage Food Act, legislators intended it to be one of the strongest in the country, legalizing the sale of virtually all homemade foods and meals except certain meat products. Although there has never been a reported case of illness from food sold under a food freedom law, the Legislature’s decision spooked the North Dakota Department of Health. The Department tried to gut the law with regulations that would ban all meals and many types of canned foods, arbitrarily allowing only a few types of foods to be sold. They backed down when IJ threatened to sue them, then tried and failed to convince the Legislature to pass those regulations as law.

Then, the health department came back for a third try, issuing identical regulations late last year while North Dakota’s biannual legislature is out of session until 2021. That’s why IJ has stepped in to defend the rights of Naina and four other home-based North Dakota cooks and to stop the Department from undermining the Legislature’s clear intent.

In Nebraska, Cindy and IJ successfully lobbied the Legislature to pass a cottage food law greatly expanding the opportunities for home bakers and other food entrepreneurs to sell their goods. Like Cindy, home bakers across the state have already registered under the law and passed the required food safety course. But that didn’t stop a Lincoln health board from drafting— and convincing the city council to adopt—new rules this February that subject home bakers to many of the same regulations the Legislature exempted them from, including an intrusive inspection regime. So, Cindy has teamed up with IJ to challenge this invasive and unnecessary ordinance.

With these two cases, IJ is standing up for home-based food entrepreneurs and sending a message to overreaching regulators nationwide: When the state legislature expands food freedom, you cannot stand in the way.

Lisa Bergstrom is IJ’s donor communications associate.

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