Bismarck, N.D.—Today, a North Dakota district court denied the North Dakota Department of Health’s motion to dismiss a lawsuit brought by five North Dakotan homemade food producers to restore the Cottage Food Act. These homemade food producers partnered with the Institute for Justice (IJ) to sue the Health Department for illegally gutting the law in 2019, after it failed to convince the North Dakota Legislature to restrict cottage food sales. Now, North Dakotans are one step closer to being able to buy or sell nearly any homemade food or meal from their neighbors, as they could between the Act’s passage in 2017 until January 1st of this year.

“The Court rightly declared that North Dakotans should not have to jump through unnecessary hoops to challenge regulations that were illegal in the first place,” IJ Senior Attorney Erica Smith said. “North Dakotans are one step closer to again being able to sell homemade foods to their community.”

The Department attempted to have the lawsuit dismissed by arguing that all five plaintiffs should go back to the Department and ask it to “reconsider” the rules before they could challenge those rules in court. The Department also tried to block one of the plaintiffs from being part of the lawsuit at all and instead force that plaintiff to proceed in a separate procedure called an “administrative appeal.”

In her ruling, District Judge Cynthia Feland held that the Department’s motion would burden the plaintiffs’ rights to seek relief in Court and would “waste both judicial and party resources.” The Court thus allowed all five plaintiffs to move forward with their current lawsuit.

The plaintiffs in the lawsuit are Danielle Mickelson, Lydia Gesselle, Lonnie Thompson, Summer Joy Peterson and Naina Agarwal. They come from different parts of North Dakota and want to sell different foods, all of which they were able to sell under the Cottage Food Act.

“During the COVID-19 pandemic more than ever, consumers need access to safe, fresh and convenient foods. And with increased unemployment and people spending more time at home, it’s a great time for people to make and sell homemade foods to earn extra income for themselves and their families,” said IJ Attorney Tatiana Pino. “Our lawsuit aims to restore the rights that unaccountable bureaucrats rolled back with their illegal rulemaking.”