J. Justin Wilson
J. Justin Wilson · April 16, 2020

Clarkston, Wash.—When Kathy Hay set up a little free pantry in her backyard last December, she had no idea that an unprecedented crisis was about to create thousands of newly-jobless neighbors scrambling to find food for their families. At the time, she just wanted to share food with her lower-income neighbors and give back to a community that had supported her when she was having a hard time putting food on her own table.

Unfortunately, no good deed goes unpunished. Rather than sending her a note of thanks, Asotin County sent her a cease and desist letter in February, demanding that she shut down the pantry. To reopen, the county said that she has to pay annual fees, a fine and obtain a burdensome permit. If she tried to reopen without complying, the county threatened criminal prosecution.

Now Kathy and two of her neighbors who used the pantry have partnered with the Institute for Justice to fight back. Today, they filed a federal civil-rights lawsuit to protect their right to share food with each other. The lawsuit is part of IJ’s overall effort to respond to the current health and economic crisis by working to cut red tape hampering individuals’ ability to help one another.

“With the state’s food banks running low on food and an unprecedented number of Washingtonians out of work, stopping neighbors from helping each other is the last thing the government should be doing right now,” said Institute for Justice Senior Attorney Erica Smith. “Kathy has a constitutional right to share food with others at her home, and needy people have a right to accept willing food donations.”

Many of Kathy’s neighbors in the working-class town of Clarkston, Washington, struggle to put food on their table. Kathy herself has struggled to make ends meet in the past and wanted to help. Rather than donate to her local food bank, Kathy wanted to do something that allowed her neighbors to be more engaged in helping one another. So after doing a little research, she set up a “little free pantry” in her backyard. Little free pantries are small structures—typically the size of a kitchen cabinet—where people can donate or take food. Similar to the “little free library” movement, thousands of Americans have built little free pantries to help fight hunger. In fact, many little lending librarians are converting their boxes to pantries in light of the current crisis.

“The ability to safely share food is now more important than ever,” said Caroline Grace Brothers, a constitutional law fellow at the Institute for Justice. “Before the current crisis, Kathy made sure the food being donated was safe and that the pantry itself was clean and orderly. And now, given the current crisis, she’s more than willing to take additional measures to ensure the food being donated is safe.”

Kathy’s pantry took off immediately. People took and donated fresh produce, canned goods and other foods from the pantry. Kathy estimates that her little free pantry served at least a dozen needy people each day. Two of those people were Dawna Larson and Brooklyn Anderson, who were both grateful to have access to free food for themselves and their family.

“When I needed help, the food bank helped me, but it wasn’t nearly enough,” said Kathy Hay. “Knowing that people are falling through the cracks right now, I want to do what I can to help them. There shouldn’t be a lengthy, bureaucratic process in place to discourage neighbors from helping their neighbors in need.”

Everyone appreciated the pantry except the Asotin County Board of Health. About two weeks after Kathy opened her pantry, the county concluded that little free pantries should be treated like institutional food banks or 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” regulations. Even though no one had gotten sick from the food in the pantry, the County claimed these regulations were necessary to prevent foodborne illness.

Among other requirements, a Donated Food Distributing Organization must undergo the complicated and burdensome process to become a 501(c) charitable nonprofit organization, submit an annual written plan detailing its operations, pay an annual fee and have a commercial-grade kitchen (that cannot be in a home kitchen) if it provides any fresh food. Even if Kathy secured the permit, she would still be banned from sharing fresh produce, fresh bread and any other food, except shelf stable foods with “tamper evident” packaging.

Adding salt to the wound, the County told Kathy that she could not reopen the pantry until she paid a County “invoice” for the time the County spent investigating her pantry.

“By Asotin’s reading of the law, it is perfectly legal for a farm to sell food at a roadside stand using an “honor box,” but illegal for Kathy to do the same with food from the grocery store,” said Caroline Grace Brothers. “The only difference is that farm stands cater to foodies, while Kathy’s pantry caters to individuals struggling to make ends meet.”