BISMARCK — Several North Dakotans are suing the state Department of Health for their right to sell homemade food products and meals.

Plaintiffs in the lawsuit that was filed earlier this year in Burleigh County District Court argue rules that the health department implemented on Jan. 1 prohibit them from selling homemade meals and food products that once were allowed by the Cottage Food Act. The legislation that was approved in 2017 allowed certain homemade goods to be sold without inspection or licensing.

“We really feel like people should be able to sell and make money selling their products from home, and consumers should have the choice,” said Danielle Mickelson, a Rolla resident who is one of the original plaintiffs in the case.

The lawsuit was initially filed by Mickelson, Lydia Gessele, of Chaseley, and Lonnie Thompson, of Mandan, on March 31. On Tuesday, May 5, Summer Joy Peterson, of Grant County, and Naina Agarwal, Bismarck, joined the civil case.

The health department tried to convince the North Dakota Legislature in 2017 to exclude food that would require refrigeration, with the exception of baked goods, low-acid canned foods and other products. However, lawmakers rejected those proposals.

There were several other attempts to approve rules or legislation to restrict homemade goods allowed under the Cottage Food Act. The health department was successful in implementing a set of rules this year, and violators could face 30 days in jail and a $1,500 fine.

Instead of carrying out the intent of the Cottage Food Act, the health department gutted many freedoms legislators gave in the law, said Tatiana Pino, an attorney for the Virginia-based nonprofit Institute for Justice.

“This is simply an abuse of authority on behalf of the department,” the lawyer who represented the plaintiffs in the case said.

Legal to illegal

Mickelson and her husband own their local farmers market and a business that sold frozen French onion and tomato basil soups, among other things. The rules prohibited her from selling chicken noodle soup since it was frozen.

“According to the 2017 Cottage Food Act, that was perfectly legal,” she said.

Peterson, who lives 20 miles south of New Leipzig, also had to stop selling low-acid canned vegetables, including pickles, because of the rules. Joining the lawsuit was a matter of principle, Peterson said.

“This was the only recourse that those of us that feel it is unfair have,” Peterson said.

Agarwal, an immigrant from India, can no longer sell Indian food she made at a Bismarck food market, Pino said.

“In Bismarck, there are no Indian restaurants,” Pino said. “Being able to provide this food for the Bismarck and Mandan community was really a way for her to feel welcome in the community and it was a way to satisfy a demand that otherwise could not be met.”

The health department said it doesn’t comment on pending litigation. On its website, the agency said the rules don't add regulations "but further define 'baked goods, jams, jellies, and other food and drink products' as intended under the original law."

Pino called that an inaccurate interpretation of state law, which had already clarified which foods lawmakers wanted to prohibit.

"When we see this counter list provided by the department, it is much more restrictive than what the Legislature allowed," she said.

The health department has until May 19 to respond in court.

Restricting state agencies

The coronavirus pandemic has made the right to sell homemade products more important, since supply is becoming an issue, Mickelson said.

“I have customers ask me all the time, ‘When are you going to sell soup again?’ and I have to say, ‘I don’t know,’” she said.

No foodborne illnesses have ever been connected to cottage food products across the U.S., said LeAnn Harner, creator of North Dakota Food Freedom. Cottage food producers work hard to make sure they create quality and safe products.

“If anyone were to get sick, or if anyone were to get a substandard product, it would destroy our business,” Mickelson said. “We are going to go above and beyond to make sure that we do it in the safest, most sanitary, most productive way possible.”

It’s unknown how many people sell products under the Cottage Food Act in North Dakota, but she knows of roughly 500 to 600 vendors at farmers markets. It’s possible more than 1,000 people use the act to sell homemade products, she said.

The issue of restricting state agencies when it comes to making rules probably will be addressed again in the 2021 legislative session, Rep. Rick Becker said. The Republican from Bismarck spoke against the rules when the Legislature's Administrative Rules Committee reviewed the health department's process of implementing them in December.

The health department has "broad statutory authority" to write the rules, and the committee didn't have the authority to stop them from being implemented, said Rep. Bill Devlin, a Republican from Finley who chairs the committee. He said he supports the Cottage Food Act, but it's up to the Legislature to take away the health department's authority to make rules.

Becker said he feels the health department acted like a "quasi-legislature" and overstepped in approving the rules.

"Whenever a government or government agency oversteps, we have to rely on people to stand up against it," Becker said in noting his support for the plaintiffs.

Rep. Luke Simmons, a Republican from Dickinson who backed the Cottage Food Act, said the rules are a huge blow, adding implementing them against the will of the Legislature is about control. He called the plaintiffs in the case heroic, and he hopes more join the lawsuit.

“When you have a government that believes that they should protect people from themselves, that’s a problem,” he said. “In a free country, I don’t have the right to tell you what you can and cannot do to your own body, to your own person.”