March 19, 2021

After a grim 2020, North Dakota’s cottage food producers rang in the New Year with a victory for economic liberty. Thanks to an IJ lawsuit against the North Dakota Department of Health’s overregulation of cottage food—that is, food made in a home kitchen for sale—a state court judge has vindicated North Dakotans’ right to sell practically any foods from their home under the state’s food freedom law.

Here’s what happened: Back in 2017, North Dakota jumped to the front of a national movement when lawmakers passed one of the broadest cottage food laws in the country, giving entrepreneurs freedom to sell almost all types of homemade foods directly to consumers. This food freedom gave Lonnie Thompson and his wife—who cannot work outside the home for medical reasons—the chance to provide for their autistic son and two other children from home by selling popular low-acid canned vegetable mixes for stir fries. It gave Naina Agarwal—a recent immigrant from India who frequently sold out of her native Indian vegetarian street foods at her local farmers’ market—a sense of belonging in her new and unfamiliar Bismarck community. And for rural residents like Summer Joy Peterson and Lydia Gessele, who envisioned selling hot meals like chicken noodle soup and tater tot dishes to their neighbors, it allowed them to expand their communities’ access to fresh foods. 

But the state took a giant step backward in 2020 when, despite public outcry, the Department of Health adopted administrative rules that gutted the food freedom law. The rules prohibited the sale of all meals, some perishable foods, and low-acid canned foods. They stifled the state’s cottage food businesses and producers’ hopes of expansion. But this regulatory overreach would not stand under IJ’s watch.

In March 2020, IJ launched a pitched court battle with the Department. In December, a state trial judge ruled that the Department overreached by restricting the types of foods that the Legislative Assembly intended to allow under the very broad 2017 Cottage Food Act. This newly restored food freedom means new opportunities for North Dakota’s food entrepreneurs and reestablishes North Dakota as a leader in this nationwide movement.

This win also shows the importance not only of innovative litigation but also of tenacity in defending legislative and courtroom victories. That is why, this February, IJ launched another food freedom case in Wisconsin, our second in that state. The first case, filed in 2017, successfully challenged the state’s ban on the sale of home-baked goods. But Wisconsin’s stubborn regulators interpret IJ’s victory narrowly. They allow home bakers, like Stacy Beduhn, to sell cake but arbitrarily prohibit them from selling equally safe fudge and chocolates. 

Wisconsin’s regulators are violating the 2017 court order and Wisconsinites’ rights to due process and equal protection under the law. So we are going back to court to protect our 2017 victory and give Wisconsinites back the freedoms they’ve earned and deserve—just as we did in North Dakota.

Tatiana Pino is an IJ attorney.

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