North Dakota Food Freedom
Food Freedom Timeline
January, 2017 – HB 1433 introduced. Allows for direct producer to consumer sale of food and drink products without regulation by state or local government except for uninspected meat.
February, 2017 – House Ag Committee removes the sale of raw dairy products from the bill. Amended bill passes the House on a vote of 69 yeas, 21 nays.
March, 2017 – Senate Ag Committee Hearing - Julie Wagendorf from ND Health Department testifies in favor of HB 1433 if it is amended to use the term “cottage food” and include several definitions. Most of the amendments are okay with ND Food Freedom. Senate Ag Committee amends the bill and the Senate passes the legislation on a vote of 36 yeas, 10 nays.
April, 2017 – House concurs with Senate amendments on a vote of 58 yeas, 29 nays and bill is passed. Governor Burgum signs.
Late July, 2017 – ND Department of Health establishes a “cottage food working group” to develop “guidelines” for implementation of the new law as a precursor to writing rules. ND Food Freedom participates, but maintains the position that the Department may not write rules.
August, 2017 – The Department of Health lists pages of guidelines which state that producers may not sell low-acid canned foods, canning recipes must be certified unless from an approved source, have specific labeling “suggestions,” etc. which appear to an unknowing producer to be state requirements. This causes confusion because it does not match the law.
February, 2018 – The Department of Health issues public notice of rules hearings which could put most of the suggested guidelines into Administrative Code.
March, 2018 – Governor Burgum, Attorney General Stenehjem, and State Health Officer MyLynn Tufte receive a letter from Erica Smith at the Institute for Justice, suggesting the Health Department’s rulemaking attempt is in violation of North Dakota Century Code. This results in a meeting between the state officials and Representatives Luke Simons and Aaron McWilliams. After the meeting, the Department of Health rescinds its rulemaking process.
Fall, 2018 – The Department of Health appears before the Legislature’s Administrative Rules Committee to explain why rulemaking was stopped. Senator Jerry Klein agrees to work with the Department and sponsor a bill in the 2019 Legislative Session to set into law the Department’s position on cottage food.
January, 2019 – SB 2269 is introduced. In the Senate Ag Committee, ND Food Freedom challenges the portions of the bill which they believe decrease the types of food and drink available to be sold. The Senate accepts two of the proposed amendments and passes the bill on a vote of 42 yeas, 2 nays.
March, 2019 – The House Ag Committee takes umbrage with the bill as presented. In an effort to appease the Health Department, the committee votes to allow low-acid canned foods, but to also require an extremely harsh warning label written by the Health Department. The Committee also supports wording that allows the sale of refrigerated foods as long as they are transported and maintained cold. Further, the committee is willing to require all cottage food producers take a food safety course. The Department of Health testifies against the food safety course stating they have liability concerns, so the Committee leaves that amendment off and adopts the rest of the suggestions. On April 9th, the full House passes the amended bill – with low-acid foods and refrigerated foods – on a vote of 70 yeas, 21 nays.
April, 2019 – The conference committee is deadlocked. Finally, House members agree to remove their amendments. The Senate approves the conference committee version 44-2. The House refuses to concur with the amendments after spirited debate on a vote of 26 yeas, 65 nays. The bill dies and we remain with the 2017 legislation.
May, 2019 – Julie Wagendorf from the ND Health Department presents a proposal for writing rules to the State Health Council. That proposal is tabled.
August, 2019 – The State Health Council votes to allow rulemaking to proceed.
September, 2019 – The proposed rules are back in process. They encompass virtually everything the Legislature has refused to pass in April.
. Institute for Justice (IJ) writes a letter to Health Department, Governor and Attorney General refuting the Department’s ability to write rules. Several legislators, Jared Hendrix and IJ Attorney Erica Smith meet with the Governor’s staff. The Governor remains silent and rulemaking proceeds.
October 2, 2019 – Department holds rules hearing and takes written testimony as well. Food Freedom lovers greatly outweigh the positive comments about rules.
October 28, 2019 – State Health Council holds a special meeting to approve cottage food rules with only minor changes from those originally proposed in August.
December 3, 2019 – The Legislature’s Administrative Rules Committee approved the cottage food rules on the basis the Department acted within their authority according to the Department, Attorney General and Legislative Council, regardless of what happened during the 2019 legislative session.
January 1, 2020 – The new cottage food rules become effective.
March, 2020 – IJ Attorney Erica Smith files a lawsuit against the Department and Julie Wagendorf as head of Food and Lodging on behalf of cottage food producers. ND Attorney David Chapman is the local attorney representing the plaintiffs.
December 10, 2020 - ND District Court Judge Cynthia Feland rules 100% in favor of cottage food producers and states: "The Department does not cite to any legal authority establishing or even suggesting that if the Legislature fails to pass a law an agency wants, the agency can then enact the law on its own through the back door with rulemaking." She goes on to write this "end run undermines the clear Legislative intent."
January 21, 2021 - The District Court's becomes final. The rules are no longer in place.