Institute for Justice · May 5, 2020

Bismarck, N.D.—Today, two North Dakota women joined a lawsuit with the Institute for Justice (IJ) against the North Dakota Department of Health for defying the Legislature and illegally crippling the Cottage Food Act. Their lawsuit aims to restore the food freedom North Dakotans had from 2017 until 2020, when North Dakotans could sell virtually any homemade food or meal directly to informed consumers. The lawsuit has taken on increased importance during the COVID-19 pandemic as consumers need access to safe, fresh and convenient food sources more than ever. The lawsuit now includes five plaintiffs, who all legally sold homemade food for years under the Act and are now banned from doing so.

“In a world changed by the pandemic, North Dakota’s farmers and families need to have the freedom to feed their communities,” said Danielle Mickelson, a Rolla farmer and mother of six who sold soups under the Cottage Food Act and wants to now start selling pizzas. “For years, I served my customers fresh, healthy products without a single complaint. I consistently get asked when I will be able to sell my soups again.”

When the North Dakota Legislature passed the Cottage Food Act in 2017, the state’s health department opposed the change. The Department twice asked the Legislature to significantly limit the foods that could be sold under the Act, and the Legislature twice refused.

Yet the Department was determined to get its way. Last fall, it proposed the same restrictions to the law, except this time in the form of administrative rules rather than legislation. The rules passed in December 2019, and went into effect January 1, 2020. Homemade food producers challenged the regulations on March 31 for being illegal and unconstitutional, but temporarily paused the case because of the pandemic. Today, the case is once again active and the Department has until May 19 to respond to the lawsuit’s allegations.

“While it was legal to sell homemade foods for three years, many North Dakotans’ way of life improved. Consumers ate fresher foods and sellers earned extra cash to support their families and farms,” IJ Senior Attorney Erica Smith said. “Now more than ever, North Dakotans need to make money from the home. But because of the Department’s illegal rulemaking, hundreds of North Dakotans have lost a way to support their farms and families.”

The Department’s regulations are illegal since agencies cannot enact regulations that contradict state law. While state law allows the sale of any homemade food or meal except certain meat products, the agency’s rule bans all homemade meals. Instead, the rules only allow the sale of shelf-stable foods, perishable baked goods and raw poultry. The regulations are also unconstitutional since they arbitrarily allow the sale of some foods, but not others—even foods that are just as safe or safer than the allowed foods. For example, the rules allow a home baker to sell cheesecake, while banning a home pizza maker from selling cheese pizza. The rules also allow the sale of raw uninspected poultry but ban the sale of chicken noodle soup.

“The Cottage Food Act benefits everyone,” said Summer Joy Peterson, a new plaintiff in the lawsuit. “It gives producers of food the chance to directly sell their products. It protects consumers because they know exactly where the food comes from and how it’s raised or manufactured. I hope our suit restores the law.”

“Sellers of homemade foods are small business owners. They care about their reputation and satisfying their customers with a quality product,” said IJ Attorney Tatiana Pino. “One of our clients, Lydia Gessele, legally donates many hot meals to charity. But the Department now makes it illegal for her to sell these same meals to support her family. This is contrary to the Act and an equal protection violation.”

This case is part of IJ’s National Food Freedom Initiative. IJ has won constitutional challenges to Wisconsin’s ban on the sale of home-baked goods and to Minnesota’s restrictions on the right to sell home-baked and home‑canned goods. IJ has also helped pass laws expanding the sale of homemade foods in several states across the country, including in Kentucky, Maryland, West Virginia and Wyoming.

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