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North Dakota Food Freedom

Report from the House Ag Committee Hearing

– March 22, 2019

Proponents: Senator Jerry Klein as sponsor lead off the proponents, stating he wants consistency and conformity across the state. He asked the committee to save questions for the Health Department.

Julie Wagendorf, Director of Food and Lodging for the ND Health Department stood to explain what items would be allowed under SB 2269. She stated from the current law she had fielded questions about what “other food and drink” products were allowed and if home-based catering or home-based restaurants were allowed. (Read her testimony here.) She said the most common misunderstanding is the sale of meat and meat products.

Under questioning, when asked if there were any foodborne illnesses as a result of the law, she tried to misdirect the committee by talking about “complaints” about meat products, marijuana-laced brownies, cottage foods sold at retail store and other items clearly not allowed by the law. When pressed, she admitted there were NO CASES of foodborne illness that could be traced to a cottage food operator. She also admitted that Wyoming – with a Food Freedom law much more open than ours for four years – has had no instances of foodborne illness.

Other questions concerned the deletion of “drinks” from SB 2269. Wagendorf said their definition of food in another chapter of law means “food and drink” so the Health Department would be satisfied to have the phrase “and drink” included. There was also a question if the State would be liable if they removed restrictions and someone became ill.

The final proponent was a staff member from the Grand Forks Health District who tried to paint cottage food people as unaware of food safety and stated that foodborne illness is “highly under reported according to the CDC.”

Opponents: LeAnn Harner led off the testimony, painting a picture of cottage food operators and their commitment to food safety. (Read her testimony here. Here are the proposed amendments explained in her testimony.) She walked the committee through the bill, suggesting amendments and explaining her reasons along the way. Harner urged the committee to amend SB 2269 by removing proposed restrictions so that the bill reflected the legislation this same committee approved two years ago. She also suggested rather than narrowing the products to be sold, that the committee require cottage food operators complete a food safety course (readily available online for free or minimal cost and across the state) which many cottage food operators already take and use as a marketing tool. She concluded by stating her opposition to the bill in its current form, but telling the committee she’d support the legislation with the amendments.

One committee member suggested that when safety classes were available, the State didn’t need to require them and asked LeAnn if she’d still support the bill. Absolutely! The suggestion for a food safety course was to reassure the committee that we are serious about food safety.

Jennifer McDonald from the Institute for Justice (IJ) spoke from a national perspective. (Read her testimony here.) She’s researched these laws and interviewed many cottage food operators. She said, “This income can be life-changing.” The Institute for Justice has successfully sued several states with overly restrictive laws. McDonald emphasized that IJ has hired a microbiologist to test cottage foods and research foodborne illness and testify on their behalf. His research shows that there is no reason to expect cottage foods to be less safe than commercially prepared foods. She also mentioned that the State of California, widely considered to be extremely regulatory, has legislation allowing for home-based restaurants if operator obtains a permit from local government. McDonald was asked if liability insurance was needed and available. She said it is available, though what is needed depends on the individual operation.

Abby Clyde spoke next, telling how she learned to cook by making jelly with her grandmothers. She operates a day care and has been approved by government regulatory agencies to serve home-canned items to her day care children. She told the committee, “There is a thing as too much safety,” relating to government overreach. “Why change something if there hasn’t been a problem?” She talked about proper food safety methods in a variety of situations. She told the committee about purchasing a refrigeration unit that allows her to safely transport refrigerator items at the proper temperature and discussed pressure canning.

As time was running out, Bonnie Munsch stood quickly to raise questions about some definitions and labeling. She mentioned she sells dehydrated powders, which are used to flavor other cooking and wanted to know if she could sell those ingredients to other cottage food operators for their products.

Carel Two Eagles mentioned she makes truffles which are not baked goods and do contain pasteurized dairy and asked for an amendment to address that issue. She also urged the committee to allow refrigerated products because “freezing changes texture.”

David Johnson rose to support the amendments and talked about his customers who ask for canned green beans instead of frozen ones. He stated support for clarifying Century Code instead of rules and cited several versions of the Farm to Market Guide produced by the ND Department of Agriculture, which don’t contain a publication date so you don’t know which version is current. He also mentioned that the rules process seems to have less public scrutiny than having a legislative hearing.

Emmory Melhoff spoke to assure the committee that ND Farm Bureau supports the amendments.

Annie Carlson spoke about using farmers markets to test her recipes and to see if she liked the food business. Once she and her husband agreed, they built a box inside of a 1970’s farm shop to make a commercial kitchen. Even with a concrete floor, electricity and water already installed in the shop, it still cost them $69,000 to create the commercial kitchen.

The committee did not discuss the bill or take any action. Chairman Dennis Johnson announced they will be discussing the bill next Thursday, March 28th starting at 9:00 AM. They also have several bills with appropriations which will take priority at that time. They asked the Health Department to be present and answer questions. ND Food Freedom will also be present.