North Dakota Food Freedom

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REPORT – Cottage Foods Proposed Rules Hearing

October 2, 2019 – Bismarck, ND

By LeAnn Harner

I’m going to try to create the atmosphere in the room. We hope to have some video of the testimony available for you soon. There were about 30 people present, including Representative Daniel Johnston, reporter Jack Dura, and a key member of the Governor’s staff.

 

The hearing took place in a conference within the Department of Health. As we entered, we signed in either to watch or as someone wishing to speak. We were given the rules of the hearing, which included:

  1. Comments should be related to the proposed rules only.
  2. Agency staff will NOT be answering questions or commenting on oral comments during the hearing.
  3. All oral comments are audio recorded and transcribed by the agency.
  4. Agency staff will review, consider and form a response to each oral comment received at the public hearings.

 

When the hearing began, Darleen Bartz, who runs the Department’s Health Resources Section that includes Food and Lodging, introduced herself as the Hearing Officer. She also introduced Department staff present. Ms. Bartz said those speaking should address their comments only to her. 5 people had signed up to present oral comments, so Ms. Bartz said we could each have ten minutes to speak in the  order in which we were signed up. At the end of all presentations, if there were time remaining (two hours was allotted for the hearing), those wishing to present more testimony would be allowed to do so.

Here’s a quick summary of each person’s remarks from my scribbled notes. People have not had the opportunity to approve, so these are my impressions.


Susan Beehler, Mandan – Susan has been involved with Urban Harvest in Bismarck. She commented she was sad this wasn’t like a legislative hearing where you could hear why a bill was proposed and gain understanding. Susan said she thought it was confusing to have cottage food law in both Century Code and then in rules. She asked why the Health Department hadn’t worked with the Legislature to make these changes instead of waiting until afterwards and writing rules. Susan talked about her experience at farmers markets in Florida with a vast array of foods available, including raw milk. She stressed that cottage foods are a great place to test your product and for women especially to make some extra income. While the Department did not answer questions, Darleen Bartz did question Susan.

 

Jared Hendrix, Minot – Jared said he had originally brought the idea of a Food Freedom law to Representative Luke Simons, who sponsored the 2017 bill. Jared presented the timeline of what has happened and when to get to this point and stressed that the Department was trying to write rules that they could not get the Legislature to adopt. (Here's the timeline.)

LeAnn Harner, Mandan – LeAnn has been involved with Food Freedom since before the legislation was introduced and served on the Department’s Cottage Food Working Group when the law became effective. She reminded the Department that most of the language – including the definitions – in the 2017 law were suggested by the Health Department and adopted. She called the Department “arrogant” for asserting they have the right (but local health districts don’t) to make rules over licensure, permitting, certification, inspection, packaging, or labeling when that is expressly forbidden by Century Code and told them they were opening a Pandora’s box. LeAnn did agree the Department could write rules on investigating complaints, infectious disease and transactions, because those items were not expressly forbidden by Century Code. Then her 10 minutes were up. (You can read LeAnn’s testimony here.)

 

Lonnie Thompson, Mandan – Lonnie explained he and his wife just started their business a year ago. They did their research and made sure they knew how to pressure can safely, adjusting for elevation, etc. Over half of their business is low-acid canned food. Lonnie stressed his wife has health issues and can’t work away from home, so this provides needed income. He talked about setting up a booth at Tractor Supply and how having a farmers market at a business brings in customers for both the market and the business and “everyone makes money.”

Lisa Geiger, Baldwin – Lisa and her family have been in the cookie business for 18 years. They run a CSA, do other baking, and sell eggs and inspected beef. While the items she sells would not be impacted by the rules, she stressed the need to make things easy so families can get involved. With 11 children, she’s happy that some are considering staying on the farm and in the rural community because they have an opportunity to make a living here through cottage foods.

 

With no other people wishing to speak, LeAnn Harner was given a second opportunity to speak. This time she addressed some of the economic impact of the rules – though the Department tried to get her off-track by asking questions. LeAnn suggested that, instead of spending over $5,000 to advertise a rules hearing, wouldn’t it have been more helpful if the Department had used those funds to educate consumers on questions to ask producers to determine if the food was processed safely, or to put one or more pH meters in every NDSU Extension County office for use by producers or to partner with producer groups to host educational activities. She was cut off before she could finish her entire testimony because it wasn’t directly about the proposed rules.

 

Carel Two Eagle, Mandan – A corporation with whom she is involved rents a commercial kitchen to produce food products, and uses the cottage food system to develop and test market products before full production. She said, “Food is essential to every culture” and it “expresses the heart and soul of the culture.” She used the example of whether you are Chinese, Hungarian, Italian, etc. you have special foods that bring back memories with their taste and aroma. She asked why the Department wanted to regulate when there wasn’t a problem. Carel suggested suppression of food production as a violation of Freedom of Expression. She said the Department had not indicated a willingness to work with producers. She ended with a comment on cottage foods: “It’s the stuff to die for; not of.”

Lisa Geiger, Baldwin – Lisa and her family have been in the cookie business for 18 years. They run a CSA, do other baking, and sell eggs and inspected beef. While the items she sells would not be impacted by the rules, she stressed the need to make things easy so families can get involved. With 11 children, she’s happy that some are considering staying on the farm and in the rural community because they have an opportunity to make a living here through cottage foods.

 

With no other people wishing to speak, LeAnn Harner was given a second opportunity to speak. This time she addressed some of the economic impact of the rules – though the Department tried to get her off-track by asking questions. LeAnn suggested that, instead of spending over $5,000 to advertise a rules hearing, wouldn’t it have been more helpful if the Department had used those funds to educate consumers on questions to ask producers to determine if the food was processed safely, or to put one or more pH meters in every NDSU Extension County office for use by producers or to partner with producer groups to host educational activities. She was cut off before she could finish her entire testimony because it wasn’t directly about the proposed rules.

 

Carel Two Eagle, Mandan – Carel rents a commercial kitchen to produce food products, but uses the cottage food system to develop and test market products before full production. She said, “Food is essential to every culture” and it “expresses the heart and soul of the culture.” She used the example of whether you are Chinese, Hungarian, Italian, etc. you have special foods that bring back memories with their taste and aroma. She asked why the Department wanted to regulate when there wasn’t a problem. Carel suggested suppression of food production as a violation of Freedom of Expression. She said the Department had not indicated a willingness to work with producers. She ended with a comment on cottage foods: “It’s the stuff to die for; not of.”


Ross Lockhart, Brandin – Ross is President of the ND Farmers Market and Growers Association. He said it was unfortunate his group hadn’t been involved with the law from the beginning and said they stand ready to work with whomever to strengthen local food. He brought forth two specific items for consideration under the definitions. First, #18 “Private home” means a single-family residence or an area within a rental unit where a single person or family resides; but does not include any group or communal residential settings within any type of structure; or outbuilding, shed, barn or other similar structure. His group has encouraged their members to develop some of those separate areas for food production.

 

Ross also highlighted definition 19 about safe moisture level. Research by his group’s executive director indicated the only way to test water activity level in a dehydrated food was by sending a sample to NDSU and that their best information was that NDSU may soon discontinue that test, so foods would have to be sent out of state.

 

The hearing concluded at 2:20 PM. We appreciate the people who were able to attend and support the speakers.