North Dakota Cottage Food Law: No License, No Inspection and No Sales Cap Under N.D.C.C. 23-09.5-02

The North Dakota cottage food law lives in chapter 23-09.5 of the Century Code, which contains just two sections, the definitions at 23-09.5-01 and the operating rule at 23-09.5-02. There is no third section, and that absence is the most important fact about it. North Dakota sets no annual gross sales cap, no registration, no food handler course, no home kitchen inspection and no state approved label. Subsection 1 of section 23-09.5-02 says that notwithstanding any other provision of law, a state agency or political subdivision may not require licensure, permitting, certification, inspection, packaging or labeling pertaining to the preparation or sale of cottage food products, while preserving an agency's ability to give assistance, consultation or inspection when the producer asks for it. A city or county in North Dakota therefore cannot layer its own cottage food permit on top of the statute.

What may be produced is defined loosely on purpose. Section 23-09.5-01(2) defines a cottage food product as baked goods, jams, jellies, and other food and drink products produced by a cottage food operator, and a cottage food operator as an individual who produces or packages those products in a kitchen designed and intended for use by the residents of a private home. Nothing in the chapter limits the operator to shelf stable or non potentially hazardous foods, which is what separates North Dakota from most states. Subsection 7 of section 23-09.5-02 confirms the point from the other direction: it assumes refrigerated products exist and requires the operator to label any cottage food product that requires refrigeration, giving baked goods containing cream, custard, meringue, cheesecake, pumpkin pie and cream cheese as its examples, with safe handling instructions and a product disclosure statement indicating the product was transported and maintained frozen.

The limits are on the channel rather than the recipe. Subsection 2 requires the transaction to be directly between the cottage food operator and the informed end consumer and to be only for home consumption, and it lists the permitted venues: a farm, a ranch, a farmers market, a farm stand, a home based kitchen, any other venue not otherwise prohibited by law, or delivery. Section 23-09.5-01(6) defines an informed end consumer as the last individual to purchase the product who has been told it is not licensed, regulated or inspected, and section 23-09.5-01(5) defines home consumption as food consumed within a private home, or food from a private home consumed only by family members, employees or nonpaying guests. Subsection 4 closes the wholesale door: except for whole, unprocessed fruits and vegetables, food prepared by a cottage food operator may not be sold or used in any food establishment, food processing plant or food store. A Bismarck coffee shop cannot put a home baker's cinnamon rolls on its counter, and a grocer cannot stock them.

Meat and poultry are handled separately in subsection 3. Uninspected meat products may never be sold. Uninspected poultry products may be sold only where the operator slaughters no more than one thousand poultry raised by that operator during the calendar year, does not buy or sell poultry products other than those produced from poultry the operator raised, and the product is neither adulterated nor misbranded. Any transaction involving interstate commerce is out. Subsection 6 preserves brand inspection and animal health inspection requirements untouched.

Two disclosures are mandatory even though no agency may impose labeling. Subsection 5 requires the operator to inform the end consumer that the product is not certified, labeled, licensed, packaged, regulated or inspected. Subsection 8 requires a consumer advisory sign at the point of sale or a label on the product carrying the statutory sentence about the product being made in a home kitchen that is not inspected by the state or local health department.

On the administrative side, North Dakota Administrative Code chapter 33-33-10 once carried definitions, product lists and labeling rules, and sections 33-33-10-01 through 33-33-10-03 were repealed effective October 1, 2021, leaving the statute to speak for itself. What survives is section 33-33-10-04, which lets authorized representatives of the Department of Health and Human Services or a local regulating authority enter the production area of the operator's private home, the point of sale or the venue to investigate an illness or environmental health complaint, with the operator entitled to ask to see credentials, and section 33-33-10-05, which bars an operator or a member of the operator's household with symptoms of a contagious or infectious disease from knowingly handling or preparing cottage food products or working in the production area.

5-02 gives the Department of Health and Human Services or a local regulating authority power to investigate only upon complaint of an illness or an environmental health complaint. There is no scheduled inspection of a cottage food kitchen and no licence to suspend. C. 1 of the Century Code, the food and drug adulteration chapter. Subsection 3 of the same rule then requires the operator to prepare and submit a plan of correction containing enough information for the department to decide whether the proposed corrective measures will abate or prevent an ongoing threat to public health. 1-32-01(6).