Issues arise around North Dakota’s cottage foods law

JACK DURA Bismarck Tribune
Farm Forum

BISMARCK, N.D. — Lori Martin is passionate about local foods.

As a vendor and founding board member of BisMarket, she sells vegetables, baked goods and canned items at the farmers market in Bismarck. But some of the produce she cans wasn’t allowed for sale before passage of North Dakota’s Food Freedom Act on cottage food products.

The law was expanded to include direct-to-consumer sales of largely baked goods and canned items, including refrigerated foods such as kuchen and lemon meringue pie. But nearly a year later, the state’s cottage foods law awaits a rule-making process to play out. Food Freedom proponents have questioned the legislative intent related to definitions of cottage food products: At issue is a reference to “other food and drink products” and what that means.

Julie Wagendorf, director of the state health department’s Division of Food and Lodging, said a public comment period on draft rules is on the horizon.

“You don’t necessarily always need administrative rules for every law, but in this case, it’s necessary to further define those terms within the cottage food product definition,” Wagendorf told the Bismarck Tribune.

LeAnn Harner, who lives on a dairy goat farm northwest of Mandan and helped guide the cottage foods legislation, asserts that North Dakota’s law is clear enough. She maintains that a similar law in Wyoming from five years ago has resulted in economic benefits and no reported foodborne illness.

“I think what was passed in legislation was enough rules and guidelines for us to live with,” Harner said. “I think that’s very, very clear, and I don’t think unelected bureaucrats who aren’t representatives of the people should have the right to make rules on this.”

It’s not clear when rules may be adopted by the Legislature’s Administrative Rules Committee. Wagendorf said likely not by September. Republican Sen. Jerry Klein of Fessenden, who sits on the committee, said all stakeholders should be willing to meet and discuss rules.

“This is a complex issue,” Klein said. “I think our message was that we need to continue the discussion with the groups, everybody sitting at the table, trying to come to a consensus that’ll work for everyone and that the lines of communication continue to stay open.”

Klein also sat on the Senate Agriculture Committee last session when debate began on the Food Freedom Act. He said the topic faced a few twists and turns, such as consistency in local health units’ regulation of food items such as eggs. Cottage food sales are now uniform statewide under the new law.

The law does not require a license, specify labeling or mandate kitchen inspections — though Wagendorf said the state health department can investigate complaints of illness. The law does require face-to-face, producer-to-consumer transactions, which allow for consumers to ask questions out of interest or health concerns, such as allergens.

Cottage food producers take it upon themselves to prepare their food items in a sanitary environment.

“A lot of it’s common sense,” said Bonnie Munsch, secretary-treasurer of the Capital Farmers Market. “If you’ve got five cats and five dogs, don’t be canning in your house.”

Martin pointed out that cottage foods are not necessarily “buyer beware,” but a little education doesn’t hurt.

“You can come and ask me anything about the food that I produce and, if you’re not happy with the answer, you don’t need to buy from me,” Martin said.

Meanwhile, BisMarket is developing a list of frequently asked questions for consumers in learning about cottage foods.

In addition, Bismarck-Burleigh Public Health offers general food safety training about every quarter. Environmental health administrator Anton Sattler said the courses are free, open to the public, and teach requirements of the city’s food code.

Amy Conklin, who makes and sells sweets at the BisMarket, said she participates in online food safety courses, maintains liability insurance, and keeps up with new trainings.

Jonathon and Hannah Moser sell mainly produce at the BisMarket, but also offer sourdough bread and pizza crust. Hannah Moser said she took a local food safety class and follows general sanitary practices.

BisMarket also requires all cottage food producers to complete food safety training, according to Martin, who added there is a “legitimacy piece” to being certified. A variety of options are available, with certification available upon completion.

There is another plus to the generality of the law: It allows producers to wet their feet in a little enterprise before jumping in, according to Munsch.

Martin agreed, especially for market testers who may be considering a food truck or restaurant but don’t have the money to start right up.

“I want people to be able to expand their food businesses without a ton of hoops to jump through … but then be safe at it at the same time,” she said.