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Final Victory for North Dakota Cottage Food Producers

The Cottage Food Act is safe after the N.D. Health Department makes clear the legal fight is over

BISMARCK, N.D.— Cottage food producers across the state can now rest assured that they can sell their homemade foods—like pizzas, mac and cheese, and canned vegetables—exactly as the state Legislature had intended when it passed the Cottage Food Act. Last December, North Dakota Judge Cynthia M. Feland ruled that the North Dakota Department of Health broke the law when it passed regulations crippling the Cottage Food Act, which the Legislature had enacted in 2017. Although the North Dakota Department of Health initially filed an appeal of that ruling with the North Dakota Court of Appeals, they later withdrew that appeal. And as of today, following confirmation with the department, there are no more steps to take in the case and the court’s decision is final.

“Selling homemade foods is a great way for North Dakotans to support their families and their farms, and consumers love buying locally made food from their community,” said IJ Senior Attorney Erica Smith. “We are glad that the Department of Health finally gave up its multi-year campaign to deprive North Dakotans of the freedom to buy and sell locally made foods.”

The Cottage Food Act was passed by the North Dakota Legislature and signed into law by Gov. Doug Burgum in 2017. It allows North Dakotans to buy or sell nearly any homemade food or meal to informed consumers, except certain meats. But that changed when the Department of Health promulgated regulations that flatly contradicted the Act, by banning the sale of all homemade meals, almost all perishable foods, cut produce and many types of canned foods.

After the Department promulgated the regulations, five North Dakota homemade food producers throughout the state brought a lawsuit along the Institute for Justice (IJ), asking to court to declare the rules illegal because they contracted the Cottage Food Act. The Court agreed with them, and struck down the rules. As a result, the Cottage Food Act is back in effect, and cottage food producers can once again sell their homemade foods.

“I am excited this is done and over with. Especially this year, North Dakota is suffering one of the worst droughts it’s had in years. Farmers and ranchers are hit especially hard. Being able to sell extra goods from home is so helpful,” said plaintiff Summer Joy Peterson.

The other plaintiffs in the suit are Danielle Mickelson, Lydia Gessele, Lonnie Thompson and Naina Agarwal. They come from different parts of North Dakota and sell different foods—everything from soups and pizzas to vegetable stir fry mixes.

“I could not be more excited about what this win means for cottage food producers in North Dakota,” said plaintiff Danielle Mickelson of Rolla, North Dakota. “This is just the beginning for feeding our friends, our families and our communities. And as a state that’s what we’re all about.”

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