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North Dakota Food Freedom

Here's our analysis of the impact of proposed rule changes.

This is a work in progress.

North Dakota Food Freedom believes NO state agency or political subdivision has statutory authority to write rules regarding cottage food based on Century Code NDCC 23-09.5 which states:

We believe ANY attempt to change labeling requirements, require recipes to be tested, delineate certain temperatures, certify pH, etc. is illegal. Further, we believe if the Department of Health is allowed to make rules, then there's nothing stopping local health districts from writing rules. This could effectively roll back the entire piece of legislation without legislative approval. The ND Department of Health attempted to make these changes during the 2019 Legislative Session and they were rejected by the Legislature. (See 2019 Legislative Session for details.)

Further - you should be aware that during the 2017 Legislative Session, the Department of Health came to the Senate Agriculture Committee and suggested a major rewrite of House Bill 1433. Our side was okay with most of the amendments BECAUSE they didn't change the substance of the intent of the legislation. The Senate Committee approved a majority of the amendments offered by the Department. Then the full Senate approved the changes and the House concurred.

In those amendments, the Department actually offered all of the definitions in the bill, so now in rules they want to further CHANGE THEIR OWN AMENDMENTS to clarify their own wording. Click here to read the "Christmas tree version" of the bill showing the Senate committee changed. The deletions from what the House originally approved are in red (and have overstrikes). Changes suggested by the Department and approved by the Senate committee are in green and underlined.

At the present time we have to assume rulemaking will proceed, so here's our analysis.

Below is the start of the proposed rules:

Below is the definition of "adulterated" in section 19-02.1-09. Please keep in mind that, when any rules or law refers to other sections of law, it makes it more difficult for volunteers to monitor changes in legislation or rules that refer to those sections. The entire concept of the original cottage food law was to contain the entire law in ONE place in Century Code so everyone could easily find the law and not have to search rules or other places in Century Code.

Honestly, do you think ANY cottage food operator would knowingly adulterate their food product? What purpose would it serve? The customer knows where they purchased the food.

Now back to the proposed rules.

Here's that licensure section in Century Code:

Back to proposed rules.

How's "Food establishment" defined in code? Look below.

When you read the definition of "food establishment," it makes it fairly clear that, if you are a cottage food operator selling cinnamon rolls at a farmers market, you'd better not put a roll on a plate and stick a fork in it or you'll be a "food establishment."

Back to the proposed rules.

Though the law clearly states "notwithstanding any other provision of law......may not require.....certification" we believe the above definitions absolutely require certifications.

Back to proposed rules.

Here's the reference in Century Code 23-09.5:

Note that the definition in Century Code doesn't require the food to ONLY be consumed within a home. It's simply food purchased by a consumer that the consumer (who has been informed as in Item 6) is sharing with family members, employees or nonpaying guests. You can't buy the food and resell it but you may give that food to guests.

Back to proposed rules.

It's worth noting that while "adulterated" had to be defined according to another section of Century Code, the Department choose not to do the same with "misbranded," even though "misbranded" is defined in a similar section. But honestly, what cottage food producer would want to label a food as something other than what it is? Don't we think people would notice?

Back to the proposed rules.

One thing you learn in working with agencies is that they wish to define every little item. Within those definitions they tend to embed things which can change the intent of the law.

For example, the last sentence in the definition of "venue" excludes certain establishments, yet the cottage food law itself says "Notwithstanding ANY OTHER PROVISION of law....."

The proposed rules continue below.

Reading these proposed rules can give you a headache. Double negatives are easy to misunderstand. The Department is attempting to list foods not authorized under the "definition" of cottage food products.

Below is the actual definition of a "cottage food product" in Century Code.

Please note this definition does NOT say, "The ND Department of Health may decide what 'other food and drink products" can be sold. The Department itself proposed this definition to the Senate Ag Committee.

Proposed rules continue below. Remember, these foods would NOT be authorized if these rules pass. This is where the Department is deciding "good" and "bad" foods. The Legislature just said, "...and other food and drink products."

Century Code is pretty simple about what it allows. See below.

Century Code DOES emphasize that producers need to tell consumers the items are uninspected and except for fresh produce, can't be sold to restaurants or retail operations. You can see that information below.

Below, the proposed rules go on to make specific requirements for labeling. Please remember that labeling is SPECIFICALLY listed as something on which the Department cannot make rules.

The simple labeling requirements passed by the elected State Legislature are simple and listed below. We think they're adequate.

The final proposed rule deals with illness or environmental health complaints. It's interesting to note that, during the 2019 Legislature when the Department was supporting a new piece of legislation which would have included most of these rules they did NOT include anything about dealing with complaints. What has changed since January of this year? Also - NO ILLNESSES have been associated with cottage foods.

Century Code is very straight forward on this topic.

North Dakota Food Freedom hopes you will study this analysis.

If you believe that the Department of Health is over reaching its authority in writing rules,

but also acting outside of the legislative intent of the law,

we hope you will file comments BEFORE October 12th.

Better yet, attend the public hearing on October 2nd in Bismarck.

Click here for tips in writing comments. They don't have to be anything fancy. Just make them legible and heartfelt.

Click here for information about the public hearing.