Please note: LeAnn didn't read her testimony, so this isn't word for word what was actually stated. She wasn't allowed to present part of this testimony because it wasn't directly talking about a specific rule.
TESTIMONY ON COTTAGE FOOD RULES
October 2, 2019
Presented by LeAnn Harner
Here we are again. I don’t know how many times we’ll have to rehash the same issues, but it’s getting old. You tried revisions in the 2019 Legislative Session and they failed.
Now we’re back again with the Department attempting to overrule the will of the State Legislature.
Once again, the Department is telling cottage food producers we’re not smart enough to produce
safe food for sale to others; even though this is the SAME FOOD WE FEED OUR
FAMILIES. In many cases it’s the same recipes we’ve used for generations.
Instead of helping producers – the Department just says “NO!” You’ve created this adversarial
There’s been a lot of talk about confusion about the 2017 law. I submit the confusion was
Mainly caused by the Department when they issued “guidelines” for cottage food when
the law became effective. The pages and pages of double speak severely
discouraged producers from low acid foods, talked about labeling and lots of
other issues in a tone that sounded like law instead of suggestions.
That caused confusion because it went far beyond the law.
On to specific comments about the proposed rules. The reason for our opposition to virtually all of the rules is this sentence in Century Code:
23-09.5-02 – Direct producer to consumer sales of cottage food products.
1. Notwithstanding any other provision of law, a state agency or political subdivision may not require licensure, permitting, certification, inspection, packaging, or labeling that pertains to the preparation or sale of cottage food products under this section.
Most of the proposed rules, in one form or another, address licensure, permitting, certification, inspection, packaging, or labeling. If the Department says you can NOT sell a particular food, but that food can be sold with a permit or license, then the Department is effectively saying that you can only sell the food with a permit or license.
If the Department requires certain temperatures, pH or water activity levels, that is a certification.
If the Department requires specific wording on labels such as in proposed rule 33-33-10-03, that
is in direct contradiction to Century Code as passed by the 2017 Legislature and signed into law
by Governor Burgum.
The proposed rules which overstep in this area show an arrogance by the Department. If the Department – specifically told in Century Code they can NOT make rules in this area – is allowed to proceed, then what is stopping local health districts or other political subdivisions from doing the same. I’ve been told privately by the Department that political subs “can’t do that.” But neither can the Department!
If we allow rulemaking on licensure, permitting, certification, inspection, packaging or labeling by
the Department, we are setting a precedent for local health districts to do the same.
That effectively removes the entire purpose of the cottage food law. The one part of the law that
EVERYONE in the Legislature seemed to agree on was the need for one standard across
the state. You are opening a Pandora’s box.
Definitions – One of the things I find most troubling in the definitions (other than their use to deny people the right to make all cottage foods for sales not exempted in Century Code) is the several definitions that refer to parts of Century Code not in the Cottage Food Law. One of the main reasons for this bill was to have everything – all the legalities – in one place. In order for producers to find the real definitions and study them, they need to be able to research through Century Code. It complicates what is supposed to be a simple law.
Food Establishment Definition –. I’ve heard Julie Wagendorf from the Department testify time and again that the Department does not want to “regulate lemonade stands.” Read this definition and tell me that anyone – regardless of age – who sells a product created “on the premises or elsewhere” that is ready to eat or drink on the spot cannot be held to be operating a “food establishment.” Combine that with the newly clarified definition of “home consumption” which states “home consumption does not include the sale of cottage food products for commercial consumption,” together with the proposed definition of “commercial consumption which “includes use of food in a food establishment, food processing plant, retail food store or any other food operation requiring licensure” and we have a circular argument that says a cottage food operator may sell a wrapped cinnamon roll, but don’t put it on a plate and stick a fork into it. Don’t offer freshly brewed coffee in a cup. You might be a food establishment.
Let’s remember that, in the Senate Ag Committee in 2017, Julie Wagendorf testified IN FAVOR of the bill provided that the committee adopted her suggested amendments. Those amendments included use of the term cottage and several definitions. Here’s the most important:
“Cottage food product” means baked goods, jams, jellies, and other food and drink products produced by a cottage food operator. Note that it does NOT say “as approved by the Department of Health.” It says “and other food and drink products produced by a cottage food operator.” Those were the Department’s words. And now they’re not good enough?
We didn’t contest most of the proposed amendments and actively supported the amended bill. Why? Because it didn’t limit the foods allowed to be sold (except for meat and raw dairy) and we were hoping the Department would honor the entire piece of legislation including the statement “Notwithstanding any other provision of law a state agency or political subdivision may not …..”
Sadly, we were mistaken in the Department’s intention.
There are a couple of areas where the Department could asset rulemaking authority and not be in conflict with Century Code.
Transactions – It would be helpful to clarify that cottage food products may be advertised on the internet, that credit cards or other means of electronic payment can be used, but that the actual exchange of goods must be in person to avoid interstate commerce.
Sections on Complaints and Infectious Disease – Century Code doesn’t prohibit rulemaking in these areas and I would not oppose those rules. I would point out that these sections were NOT proposed to the 2019 Legislature. In January, when I noticed that omission in the bill and asked, I was told by the Department that “we already have procedure in Century Code elsewhere and don’t need it.” What has changed?
Part 2 of Testimony – Because the Department would only allow me 10 minutes at a time, I had to present in two stages.
To end, I want to talk about the fiscal side.
I know the Department isn’t concerned that nationwide 83% of cottage food producers nationwide are women; women who use this money to supplement their income and maybe make a difference between being able to stay at home with their children instead of getting an outside job.
I know you don’t care about the estimated $1.5 million in income that cottage food products bring in for ND families just this year….an amount we estimate will grow to $2.5 million by 2021 IF these rules aren’t adopted. While the Department doesn’t deal with economic issues, in the Administrative Rules questionnaire you completed for Legislative Council, you did not address the cost of adverse impact on sales.
I know you don’t care about the two cottage food producers who now operate commercial kitchens because they grew their product. I’m told a third one is very, very close to making that transition and these are just the ones I know about.
Let’s talk about numbers that impact the Department.
Over $5,000 for advertising a rules hearing. $5,000 of taxpayer money and for what?
To aggravate relations with cottage food producers and cause more market uncertainty
To try to overturn the outcome of not one, but two legislative sessions?
To prove that the Department is willing to bully the public?
What would have happened if instead, you’d used that $5,000 to…..
Educate consumers on questions to ask when they are buying products?
Provide more pH meters so EVERY Extension Office has one or more available for use
by cottage food producers?
Partner with groups such as ND Food Freedom, the Northern Plains Sustainable Ag
Society, ND Farm Bureau and others to teach pressure canning classes around
the state…or do webinars or other educational, helpful activities?
If instead of telling producers “NO! You can NOT produce that!” you recognized these are
the same foods we feed our families and work WITH US to make sure we have the most
up-to-date knowledge of food safety practices.
How many staff hours have you put into unregulated cottage food since January of 2017?
As a volunteer, I know I’ve spent over 600 hours – and I don’t get paid a dime.
Imagine what would have happened if the Department embraced cottage food and
spent that time and effort to truly work with producers and again, provide
educational opportunities, equipment – maybe even free testing of recipes?
Imagine how meetings like this might differ in tone, content, and yes, effectiveness if
we were all working together on food safety rather than the adversarial
atmosphere we have because of the constant threat of rules and regulation?
The Department has an opportunity here. You can continue this fight OR you can decide to
be a model for the nation and work side-by-side with producers by – as the law
states – “providing assistance, consultation, or inspection, upon request, of a
Of course, if you want to go that course, you’ll have to prove your sincerity to us.
Personally, I would love to be able to say to our producers and the public that the ND Department
of Health has embraced the freedom of our cottage food law and is a willing partner in
producing safe, homemade foods for sale direct from producer to consumer. I would love
to tell others that in North Dakota “local food” truly means all foods.
Please resist the temptation to continue with these rules and instead come on board and work
WITH US for the betterment of all North Dakotans.