North Dakota Food Freedom
FREQUENTLY ASKED QUESTIONS
January 21, 2021 - The District Court has rendered judgment and the Department of Health's rules are invalid.
This means all cottage foods are governed by the actual law in Century Code.
Got a question you'd like answered? Email us.
When does the Food Freedom law become effective?
August 1, 2017.
Who is responsible for food safety under this law?
Everyone involved! Of course, the primary responsibility is the producer who needs to use good food safety practices at every step of production – including labeling for products which need labels. This is your reputation on the line, so do your very best.
Consumers also are responsible for questioning producers about their handling methods and deciding if this is a producer from whom they are willing to purchase a product. Then consumers need to think about safe transport, storage, and use of the product on their end.
We encourage you to review safe handling procedures and do a self-audit of your food preparation. For information about industry-approved techniques, go to: https://www.ag.ndsu.edu/publications/food-nutrition/food-safety-basics-a-reference-guide-for-foodservice-operators
What signs or labels must be used?
Any product created in a kitchen must have a sign or label stating “This product is made in a home kitchen that is not inspected by the state or local health department.”
Refrigerated or frozen products should be labeled with safe handling instructions and a statement the product was transported and maintained at the refrigerated or frozen temperature.
Producers should inform customers – verbally, by sign or label – that the food sold is not certified, labeled, licensed, packaged, regulated or inspected.
If you need a sign, CLICK HERE for a selection of free signs to download and print.
Are we permitted to use our own labels?
Absolutely! A good label is a great marketing tool. For processed, main courses or baked goods, you’re encouraged to include a list of ingredients, processing method, handling instructions, etc. If you’re selling an item that requires a warning label, be sure to include the correct language.
May I sell food that requires refrigeration?
Yes. But you may not transport that food unless it is frozen. Customers must pick the refrigerated food up at your home or where it was created. You can NOT sell refrigerated items at a farmers market. Frozen items can be sold at market, but must remain in a solid state. Refrigerated and frozen food must have safe handling instructions on the label.
Where can we advertise and sell our cottage food products?
Under HB 1433, you may sell products almost any place in North Dakota where you have direct contact with the end consumer – outside of a retail establishment. So you may sell from your home, deliver to a customer, sell at a farmers market, etc. In discussion with the Health Department – as a point of clarity – the Cottage Food Working Group agreed that you may advertise anywhere – including the Internet on a website, Facebook, etc. as long as the product transfer was done person to person WITHIN the State of North Dakota. Items may NOT be shipped by mail or other carrier (because they may inadvertently travel out of state during shipping) or sold out of state. Our cottage food law applies only to in-state sales by in-state producers. People may not travel into North Dakota with cottage food products for sale.
In the Cottage Food Working Group we had a lot of discussion about payments and if you could use a credit card to buy your items. Many farmers markets are now accepting electronic payments; though the customer may have to go to the market manager to swipe the card; then take the receipt back to the producer to obtain their goods. We determined that using PayPal on a website was no different than that type of farmers market payment as long as your actual “sale” (handing over the product) is done in person. So you may accept an order for a case of jam off the Internet and deliver it a month later to the customer….as long as you the producer aren’t crossing state lines with your product.
Can we sell food containing dairy products?
Yes, as long as it is pasteurized dairy. This would include milk, cream, cheese, etc. Of course, many products created with dairy will require refrigeration so they will need to be picked up at your home or frozen for transport.
Can we sell food products containing meat? (Note: Poultry is different.)
In general, no. Meat products are governed by Department of Ag law and rules and all red meat products must be inspected before sale. The exception is when a consumer buys a share of an animal on the hoof and then pays their share of the processing.
The Cottage Food Law requires all meat products to be inspected. If you purchase inspected meat, then open the package and cut it, the product is no longer in it's inspected form. However, if you purchase inspected meat and include it in the inspected package on a charcuterie board or as an addition to a casserole or other product, that is allowed. Of course, such products must be picked up at your home or frozen for transport and include safe handling instructions.
What are the rules on poultry?
Only people who raise and process their own birds can sell poultry or food products created with meat from their poultry. You may NOT purchase poultry and create food products for sale under the law.
Producers may raise, slaughter and home process up to 1,000 birds per year. You may only slaughter birds that you have raised and can not buy birds to butcher. The Department of Ag explains here. You need to contact the Department and let them know you intend to raise and sell birds. The producer must maintain complete and accurate records, including: number of birds processed in a calendar year and customers’ names and dates for each sale. Businesses under this exemption are subject to more stringent labeling regulations. Labels must include: name of the product, ingredients statement, net weight, name and address of establishment, handling instructions, safe handling instructions, date of packaging, and an explanatory statement indicating why inspection is not required such a “Small Enterprise Exemption from Inspection.”
What type of eggs can be sold?
Eggs from any domesticated poultry (up to 3,000 birds) can be sold to the home consumer without a permit, refrigeration, etc. Of course, if you have washed your eggs, you’ll want to keep them refrigerated as a matter of good food safety. If you take those washed eggs to a farmers market, you must keep them in a cooler at temps of 45 degrees or less - NOT sitting on a table in the sun.
If you are selling eggs to a store, restaurant or other outlet, you’ll need a permit in accordance with state law.
May we sell to restaurants or stores?
ONLY fresh fruits and vegetables may be sold directly to restaurants or stores. All other items can only be sold to the home consumer for use in their home. Items purchased through the Food Freedom Act may not be resold or used in other Food Freedom products. That means - you can't purchase noodles from one farmer and chicken from another farmer, then make chicken noodle soup for resale. However, you and your family may enjoy that delicious soup at home.
Bakers may use eggs from their own flock for baked goods to sell. But a consumer who purchases eggs under this law may only use their eggs for their own use. That consumer may NOT use those eggs for baking and sell to other consumers.
Are we required to pay income tax and collect sales tax?
Absolutely. You need to keep good financial records for your business and, if you generate income, you must pay that tax. You’re also responsible for paying self-employment tax, taxes for employees, etc. Depending on your food products and how you sell them, you may be required to collect and pay sales tax.
If you have questions about collecting taxes, try this link.
Do I need special insurance?
It's not required by the law. We strongly suggest you have a conversation with your homeowners or farm insurance agent about any products you’re selling under Food Freedom, where you plan to sell, etc. to make sure that you’re covered for liability.
Are we allowed to sell at craft fairs? That depends on the organizer of the event. If the organizer says "ok," be sure you have appropriate signage and labels so it is very clear that you are selling products created in an uninspected home kitchen.
Can I sell raw (unpasteurized) milk directly to consumers for human consumption? Though raw milk is not part of the Food Freedom law, other parts of the law allow for milk to be sold via a herd share contract. You can NOT pasteurize milk at home and sell it as pasteurized because home pasteurization doesn't meet the state standard.
While a herd share contract may sound intimidating, in practice it's a good way to protect both producer and consumer and fairly simple to do. If you would like to sell milk, we would be happy to talk to you about how a share program works and help you get started. Please note: If you are a dairy producer selling milk under contract to a processor for pasteurizing, you may need to check that contract before selling raw milk directly to consumers or selling pet milk.
Can I sell raw (unpasteurized) milk for non-human consumption? Yes. There are no requirements for selling pet milk, but a dairy producer with a milk contract with a processor may have provisions in that contract regarding pet milk sales. Milk for non-human consumption is often used for making soap or feeding orphan animals.