Since this page was last updated, a successful lawsuit in North Dakota has nullified the health department’s controversial rule changes. As of December 10th, 2020, producers can once again fully use North Dakota’s food freedom law.
North Dakota’s path to a cottage food law resembles a roller coaster ride, but not necessarily a fun one.
Prior to 2017, the state did not have a cottage food law, but local health departments still allowed certain types of non-perishable foods to be sold at farmers markets, roadside stands, and some public events. Each county had different restrictions.
In 2017, North Dakota swung to the opposite end of the spectrum by passing the country’s second food freedom bill (HB 1433), modeled after Wyoming’s. With this law, almost anything could be sold, as long as it was consumed in people’s homes. This included items typically not found in a cottage food law, such as chicken pot pies, veggie casseroles, canned green beans, cheesecakes, and other riskier items.
Despite receiving no health complaints over two years, the health department opposed the food freedom law and constantly attempted to change it. They proposed a bill in 2019 (SB 2269) which would have restricted the law, but the legislature rejected it. In late 2019, they bypassed the legislative process by adding their rules to the North Dakota Administrative Rules (33-33-10).
The new rules went into effect in 2020, and basically converted the food freedom law into a fairly good cottage food law. As a result, North Dakota’s current law is better than many states, but much worse that it once was.
Under the current law, producers can sell all types of non-perishable foods, plus perishable baked goods, frozen produce, and limited amounts of raw poultry. There is no sales limit, and the health department does not require any license, inspection, or training. Products can be sold directly within the state, but not in food establishments, like retail stores or restaurants. Also, products must be sold for “home consumption”, meaning they must be consumed in a home.
The health department has been criticized for circumventing the legislative process, and the legality of their method has been seriously questioned. The battle will likely continue, with residents wanting to get their freedom back. Check this Facebook page for current updates.
You can find an extensive clarification of allowed food items in this summary from the health department.
Certain types of perishable products (which require refrigeration) are allowed:
- Perishable baked goods that do not contain meat (like cheesecakes)
- Fresh-cut produce that is blanched and frozen
- Raw poultry and shell eggs (only if you raise and slaughter no more than one thousand poultry per year)
These perishable products must be transported and maintained in a frozen state, and also must include special labeling requirements.
You must test some products with a calibrated pH meter to ensure the pH is at 4.6 or below:
- High-acid or acidified home-canned products
- Pumpkin butters, banana butters, or pear butters
- Sauces and condiments, like BBQ sauce, hot sauce, ketchup, or mustard
"This product is made in a home kitchen that is not inspected by the state or local health department."
You can place the warning statement either on your labels, or on a sign at the place of sale.
You must label perishable products with safe handling instructions and a disclosure statement, which must include one of the below, in bold capital letters:
- Perishable baked goods: “PREVIOUSLY HANDLED FROZEN FOR YOUR PROTECTION – REFREEZE OR KEEP REFRIGERATED”
- Frozen produce: “HANDLED FROZEN FOR YOUR PROTECTION – REFREEZE OR KEEP REFRIGERATED”
- Raw poultry: “PREVIOUSLY HANDLED FROZEN FOR YOUR PROTECTION – REFREEZE OR KEEP REFRIGERATED. THAW IN A REFRIGERATOR OR MICROWAVE. KEEP POULTRY SEPARATE FROM OTHER FOODS. WASH CUTTING SURFACES, UTENSILS, AND HANDS AFTER TOUCHING RAW POULTRY. COOK THOROUGHLY.”