“Tennessee Welcomes You” sign at the state border

On July 1st Senate Bill 693 (SB 693), also known as the Tennessee Food Freedom Act, went into effect as law. SB 693 is a major step in expanding consumer access to homemade food in Tennessee and keeping more of the food dollar in the state. State Senator Frank Niceley sponsored the bill; Representative Justin Lafferty was the sponsor of companion legislation House Bill 813 (HB 813).

SB 693 allows the unregulated sale of all food that does not require time or temperature control for safety (including fermented foods) by homemade food producers direct to the consumer or “a third-party vendor, such as a retail shop or grocery store.” Sales can be made to the consumer remotely through telephone or internet order. Deliveries of homemade food can be made through third-party carriers; all transactions under SB 693 must be in intrastate commerce only.

The production and sale of homemade foods is exempt from all “licensing, permitting, inspection, packaging…laws of this state, except when the department of health is investigating a reported foodborne illness.” The only requirement under the bill is the disclosure through labeling or other communication (depending on the food sold and the type of transaction) of the following information: the producer’s contact information, the name of the food item, its ingredients, and the statement: “This product was produced at a private residence that is exempt from state licensing and inspection.”

Prior law allowed the sale of “not potentially hazardous” foods (mostly the same foods that can be sold under SB 693) by the producer without a permit directly to the consumer only; further, the producer was subject to inspection and other requirements under the old law. The deregulation of the production and sales of homemade foods along with the now legal third-party sales of these items should increase the number of homemade food producers as well as consumer access substantially. Food buyers clubs, food hubs, and mom-and-pop stores are all possible venues for the sales of homemade food

Niceley has made a huge impact on the fortunes of small farmers in Tennessee. In 2009 he was the sponsor of a bill legalizing the distribution of raw milk through cowshare agreements; he followed up on that success in 2012 by getting an Attorney General’s opinion that it was legal to distribute other raw dairy products through a cowshare arrangement as well. In 2019 he sponsored a successful bill legalizing the retail sale of raw butter by licensed dairies.

In 2014 Niceley sponsored a bill adopting the federal poultry exemption enabling farmers to process up to 20,000 birds a year; the state has since expanded that exemption by policy to include rabbit processing on the farm. In 2017 he sponsored a bill adopting the federal exemptions on custom slaughter and on non-amenable species—the latter exemption allows the sale of meat from animals such as bison and domestically raised deer that are slaughtered and processed at a custom facility. That same year he also sponsored a bill that exempted from licensing and inspection food buyers club and other entities that distribute the products of farmers.

A fifth-generation cattle farmer himself, Niceley is largely responsible for Tennessee having one of the strongest local food systems in the country. He is the legislator small farmers across the state most turn to when they have a regulatory issue.

With the looming engineered shortages in the conventional food supply, it is critical to deregulate the production and sale of locally produced foods. Shortening the supply chains and enabling communities to be more self-sufficient in food production is a way to fight back against corporate tyranny and the threat of food scarcity. All 50 states have Cottage Food laws, with some states such as Wyoming and Montana allowing the unregulated sale of nearly all foods other than meat; illnesses attributed to producers operating under cottage food and food freedom laws are almost nonexistent. States like Tennessee and laws like its Food Freedom Act can be a model going forward for deregulation in other states.

Congratulations to Senator Niceley, Representative Justin Lafferty, Weston A. Price Foundation chapter leader and lobbyist Shawn Day, and others who worked in support of the bill for their success!

Photo Credit: Andrey Krav via iStock.com

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For the fourth time in 2 years, the North Dakota Department of Health (NDDH) is trying to water down the state cottage food law, also known as the 2017 North Dakota Food Freedom Act (FFA). The FFA allows the unregulated sale by producers direct to consumers except those foods that have either meat or raw dairy as an ingredient. NDDH has issued proposed regulations that would make illegal the unregulated sale of a number of foods that are currently legal under the 2017 law. In doing so, NDDH is overstepping its authority and is arguably hurting food safety; the proposed regulations are not about food safety–they are about control.

The FFA clearly states, “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….” Under the FFA, “cottage food product” means “baked goods, jams, jellies, and other food and drink products produced by a cottage food operator”; it was the NDDH that actually convinced the legislature to adopt this definition for the FFA. The legislature initially included the unregulated sale of raw dairy products in the FFA but pulled those foods out of the bill. The FFA excludes the sale of any uninspected products made from meat. There is no exclusion on any other foods in the FFA.

Shortly after the legislation passed in 2017, NDDH issued a guidance document for the FFA that prohibited the sale of a number of foods other than meat and raw dairy. FFA supporters didn’t abide by NDDH’s interpretation of the law; in 2018 the department followed up with proposed rules that would have again banned the unregulated sale of foods that are legal under the FFA. When food freedom proponents and members of the legislature defeated that effort, NDDH through its allies in the legislature introduced a bill in the 2019 session to roll back the FFA. The legislation, Senate Bill 2269 (SB 2269), as introduced would not only have prohibited the unregulated sale of a number of legal foods but also would have banned the unregulated sale of all drink products. The House of Representatives eventually killed the bill. SB 2269 represents the only legal attempt NDDH has made to dilute the FFA.

The proposed regulations have a number of the same changes that were in the bill that the legislature rejected. Among other things, the bill would have changed the law by making the unregulated sale of low-acid canned foods such as carrots, beets or beans illegal. The rules would prohibit the sale of unrefrigerated foods unless they are frozen–foods such as banana cream pie, potato salad, and carrot and celery sticks would all be affected. The proposed rules define “frozen foods” as foods maintained at temperatures no higher than zero degrees Fahrenheit.

The FFA allows the sale of all foods subject to time and temperature control other than those with meat or raw dairy as an ingredient. The proposed rules would limit the sale of time-and-temperature-control foods to baked goods (e.g., cream pies that are “frozen”) and home processed fresh-cut fruits and vegetables that are either “dehydrated or freeze-dried” or “blanched and frozen” ( i.e., no longer fresh).

The FFA specifically states that no government agency can require licensure for anything pertaining to the preparation of cottage food products, but that is what NDDH is trying to do in prohibiting the unlicensed sale of many foods that are currently legal to sell without a license. There are also labeling and certification requirements elsewhere in the proposed rules, both in violation of the FFA.

Beyond the proposed rules exceeding NDDH’s authority, what makes the department’s action a waste of taxpayer dollars is that in the two-plus years the FFA has been in effect, there has not been a single case of foodborne illness attributed to a producer operating under the state cottage food law. Cottage foods are thriving in the state, bringing in an estimated $1.5 million per year for producers and their families.¹ The rules are a “solution” in search of a problem.

The experience of other states allowing the unregulated sale of time-and-temperature-control foods is similar to North Dakota. Towns in Maine have allowed the selling without regulation time-and-temperature-control foods direct from producer to consumer other than meat and poultry as far back as 2011 under local food sovereignty ordinances; no case of foodborne illness has been attributed to any producer operating under the ordinance. Under the Wyoming Food Freedom Act, producers in that state can sell any food product other than meat without regulation; in the 4-1/2 years since the law went into effect, no one operating under the Act has been found to make anyone sick. The same goes for the Utah Homemade Food Act which went into effect over a year-and-a-half ago, that Act allows the sale of all foods other than meat and raw dairy from the producer direct to the consumer without regulation.

The track record in these states indicates that NDDH’s proposed rules would hurt food safety in North Dakota if they become law. Some producers currently selling under the FFA will not be able to afford the cost of compliance if a license is required for the foods they sell require; others currently producing safe and nutritious food will stop if the law requires them to get a license because they don’t want a government inspector in their home kitchens. Fewer local producers will likely result in more purchases of industrial food which has a higher rate of foodborne illness outbreaks then foods produced under the FFA. The more producers operating under the cottage food law the better the public health is served. Instead of trying to dilute the FFA, there are ways NDDH could be spending taxpayer dollars productively to work with cottage food producers. Farmer LeAnn Harner, a leader in the North Dakota Food Freedom Movement, pointed out that the department could help provide education, equipment, and free testing of recipes to cottage food producers.² The more cottage food producers there are, the safer the food supply, the stronger the local economy, the more self-sufficient communities will be in food production, and the better the health of North Dakota residents.

NDDH has a chance to be an agency that promotes the production and sale of nutritious food rather than being a bureaucracy that restricts it or, in the words of North Dakota Representative Daniel Johnston (R-Kathryn), “the Department of Control”.³

North Dakota residents have until October 12th to comment on the proposed rules. It is important to call and or email NDDH asking that they withdraw the proposed rules. The phone number for the Division of Food and Lodging is 1-701-328-1291 or 1-800-472-2927; the email address is foodandlodging@nd.gov.

Please take action now.

If you are a producer affected by the proposed rules, let NDDH know what products you sell and how the Food Freedom Act has helped your business.

Consumers should let NDDH know what healthy nutrient-dense products the Food Freedom Act has enabled them to purchase direct from producers.

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[1] Harner, LeAnn. “Testimony of Cottage Food Rules”. North Dakota Department of Health hearing on proposed rules, Bismarck, North Dakota. October 2, 2019.

[2] Ibid.

[3] Dura, Jack. “North Dakota Department of Health accused of ‘arrogance’, confusion in proposed cottage food rules”, Bismarck Tribune, October 2, 2019. Accessed at https://bismarcktribune.com/news/local/govt-and-politics/north-dakota-department-of-health-accused-of-arrogance-confusion-in/article_d800a478-ac7d-5a88-8a6c-2f841cf81b96.html

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The Wyoming Food Freedom Act (House Bill 56) would deregulate certain homegrown foods to allow for farms to legally sell directly to the consumer. This would apply to sales at farmers markets and on the farm, for single transactions from the producer to “an informed end consumer.”

Those who spoke in favor of the bill cited the rights of individuals to make their own decisions about what kinds of foods they wish to buy for themselves and for their families. Others argued in favor of the bill because it would help local farmers increase their incomes and bolster the local economy.

Realmilk.com is a consumer education project of the Weston A. Price Foundation, a nutrition education nonprofit based in Washington, D.C. Visit their website, westonaprice.org.

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