Institute for Justice · December 10, 2020

Today, North Dakota Judge Cynthia M. Feland ruled that the North Dakota Department of Health broke the law when it passed regulations in December 2019 crippling the Cottage Food Act starting in January 2020. The Cottage Food Act was passed by the North Dakota Legislature and signed into law by Gov. Doug Burgum in 2017 and allows North Dakotans to buy or sell nearly any homemade food or meal to informed consumers. But that changed when the Department of Health passed regulations banning the sale of all homemade meals, almost all perishable foods, cut produce and many types of canned foods. Now, thanks to a lawsuit brought by five North Dakota homemade food producers throughout the state along with the Institute for Justice (IJ), North Dakotans will be able to start selling these homemade foods again.

“This victory means that more North Dakotans will be able to support their families and their farms by selling homemade foods” said IJ Senior Attorney Erica Smith. “It also means that North Dakotans will have more options to buy fresh and local food. This is exactly what the Legislature intended when it passed the Cottage Food Law three years ago.”

The North Dakota Health Department opposed the Cottage Food Law, however, and repeatedly tried to convince the Legislature to limit its scope. When the Legislature refused, the Department passed rules severely restricting the law. “Although the Department claims that it has the general authority to enact rules governing food safety, the agency cannot adopt rules that contradict or conflict with an unambiguous act of the Legislature,” wrote Judge Feland in an order declaring that the Health Department’s restrictions to the Cottage Food Act are “invalid and enjoined from enforcement.”

The plaintiffs in the lawsuit are Danielle Mickelson, Lydia Gessele, Lonnie Thompson, Summer Joy Peterson and Naina Agarwal. They come from different parts of North Dakota and look forward to resume selling all different types of foods, all of which they were able to sell under the Cottage Food Act but which were made illegal by the Department.

“I’m excited for the future of my business and what these freedoms mean for its growth,” said Danielle Mickelson, a Rolla farmer and mother of six. “I am thrilled to be part of something that can help current and future cottage food producers in North Dakota.”

“North Dakotans benefit from a straightforward way to make money from home,” said IJ Attorney Tatiana Pino. “The restoration of the Cottage Food Act means hundreds of new jobs and a boost to the local economy. That should be a welcome holiday treat to all North Dakotans.”

It is unknown if the Department will appeal the decision. In the meantime, North Dakota now can rejoin the states of Wyoming and Utah as having the most expansive laws allowing the sale of homemade food in the country.

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