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Food Safety News

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NH May Drop Licensing in Name of Food Freedom

As early as next week, the New Hampshire House of Representatives will likely be deciding whether the “Live Free or Die” state should allow unlicensed “homestead” food and on-farm sales of raw milk.

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The quick action has left state regulators scrambling to get ahead of lawmakers who seem bent on removing government oversight of the sale of homemade food.

The proposals are the latest tracks added to New Hampshire’s burgeoning “food freedom” philosophy, which is encapsulated in Bill (HB) 1650. One tenet of the food freedom movement is that food produced in New Hampshire for in-state consumption should be free of federal regulation.

The measure sailed out of the House Environment and Agriculture Committee on a 13-0 vote, earning a place on the House Consent Calendar that could bring it up for floor debate as early as February 15.    

HB 1402, eliminating license requirements for so-called homestead food and allowing on-farm sales of raw milk products, may get to the floor almost as quickly.

New Hampshire currently allows the sale of non-potentially hazardous foods from licensed home kitchens, a practice being depicted by the bill’s sponsors as “overregulation.”  

In a top-to-bottom rewrite, HB 1402 now calls for exempting home-based operations with annual sales of $10,000 or less and excluding potentially hazardous food from license requirements.

Potentially hazardous foods, including acidified and low-acid canned foods, are those requiring temperate controls because they are “capable of supporting the rapid growth of pathogenic or toxigenic microorganisms” such as Clostridium botulinum (botulism).

Home and roadside sales and transactions at farmers’ markets are all permitted under the new HB 1402 language.

Raw milk dairies producing 20 or fewer gallons a day could also sell their products without licenses. In addition to raw milk, the dairies could sell cheese aged at least 60 days, yogurt, cream, butter or kefir without a milk producer-distributor license.

Both raw milk and homestead food would be required to meet they labeling requirements outlined in HB 1402, saying they are products exempt from New Hampshire licensing and public health inspection.

With 400 members, the New Hampshire House is the largest state legislative body in the U.S.   Republicans, with 295-to-105 majority, currently control it.

The food freedom debate that is scheduled for the floor of the NH House next week will allow lawmakers to vent about whether federal officials and their contractors should be jailed if they attempt to regulate food produced only for in-state consumption.

New Hampshire lawmakers, like others, cite the Tenth Amendment to the U.S. Constitution, which reserves power to the state, as underpinnings for the proposed law.

Many constitutional experts, however, say federal law and regulations are always in a superior position to state actions, making such food freedom laws meaningless. Lawyers for the Utah Legislature have said if a similar law in that state is approved, it likely will be ruled unconstitutional.

© Food Safety News
  • Warren Groen

    Hi Dan,
    Newsflash
    HB1650 has been ITLed
    Sailed out of committee?
    Could be debated on the house floor?
    Pretty sketchy reporting here.
    WG

  • MIC

    How ridiculous. New Hampshire is not a sovereign state, but it is interesting to witness how their duly elected representatives pander to this homegrown philosophy. These regulations were created by this same government to protect the public, to ensure that those manufacturing food at any level had the training to do so safely and responsibly. What has changed since then?
    The idea of deregulation in the name of freedom, removing licensing requirements and excluding potentially hazardous food from these requirements conjures up some very scary foodborne illness scenarios.
    Food freedom shouldnt mean freedom from responsibility, oversight, inspection or regulation. I wonder how long this freedom would ring if their constituents decided to be free from tax responsibility. How ironic that in a state whose motto is “Live free or die”, that this legislation might enable them to do both simultaneously.

  • aed939

    HB 1650 is a bill with good intentions, but it needs a major rewrite otherwise it could cause more problems than it solves.
    First, it should be clarified that the FDA already only has jurisdiction on interstate commerce–not intrastate. HB1650 intends to merely formalize this current law through a “made in NH” labeling program to provide more clarity to possibly prevent the overstepping of authority by the FDA recently seen in other states.
    Unfortunately, the bill as proposed is inconsistent in how it defines the line between intrastate and interstate commerce, and it confuses the definition of the word “consumption,” using it in some places to mean the physical eating of foodstuffs, and using it in other places to mean the purchase of products.
    Under current law, intrastate commerce is the activity that takes place from production to the sale of the good by the final purchaser and the possession of the good by the final purchaser or agent thereof. Once the final purchaser or agent thereof has taken possession of the good, that good is transformed from commerce to private property and then can be subsequently possessed by anyone and transported anywhere it is legal to do so–as private property. This includes transportation over state lines.
    In order to be interstate commerce, and thus under the jurisdiction of the FDA, the good has to be sold subsequent to crossing state lines.
    The bill correctly defines the line in the following sections:
    * ANALYSIS, I, “…grown or produced in and then sold in NH…”
    * 439-A:2 Definitions II. “End consumer” correctly defined (but not using the clearest language) as “…the last person to purchase any product…and who does not resell the product…”
    However, the bill incorrectly adds the additional requirement to also be consumed or that the producers must sell to those who are expected to consume the product in-state here:
    * V. …sold and consumed within NH…”
    * 439-A:3 Prohibitions. “…all food stuffs that are grown in and remain within the borders of the state of NH…”
    * 439-A:4 III “…with the intended purpose or reasonable belief that such foodstuff shall be consumed within the state of NH…”
    * “…and that remains within the state of NH…”
    So the potential issue is that NH wants to establish its jurisdiction to prevent the feds from harassing anyone within the state of NH, but they do not have enforcement power in other states. However, this is not to say that a Canadian end consumer cannot take the food item back to Canada and eat it there.
    My recommendation would be to clearly state the definition of intrastate commerce (production through sale to end buyer and transfer of possession to end buyer or agent thereof) and clearly distinguish this from the enforcement of the rule by NH (within NH). In other words, just because a product is transported out of state by an end buyer or agent thereof, it does not necessarily transform the product to interstate commerce.
    It is vital to get the rule worded precisely to avoid misinterpretation of the rule that is contrary to its intent. A seller is not required to ID check that all of his buyers are NH residents. We don’t want the FDA to spy on out-of-state groups that may make group purchases of milk. When constructing a statute about foodstuffs, the words “consumer” and “consume” should be avoided if possible. If not possible, they should be clearly defined and consistently used throughout the rule.

  • Steve

    LOL — MIC! With the corporate takeover of the food system, agriculture, regulatory agencies, etc. virtually complete — it’s our Captive Gov’t that’s pandering to industry — with no real responsibility to citizens.
    The Good Food Movement is an attempt to take that back — and since we are all Eaters this resonates up and down the political spectrum. Politicians who Don’t listen and respond to this do so at their peril, no matter how many votes they think the Big Bucks will buy them.
    Further, the one-size-fits-all food safety parameters inserted into regs by the food industry (all in the name of “protecting the public”) are a handy “legal” way of keeping competing local food systems down — and many of those expensive compliances have very little to do with assuring actual safe food in the marketplace.
    Food Freedom is essentially protecting the freedom for Eaters to have the complete information they need to chose the food they want for themselves and their families — or what production practices are being justified in all our names…. (CAFOs, erosion, dead zones, toxic pesticides, vertical integration, corporate consolidation, etc)
    As long as things like GMOs stay un-labeled; or meat glue remains undisclosed; or the corporations behind the bucolic brand names remain unidentified; or outbreaks in restaurant A, B, C… Z are not identified; or citizens and children stay targeted by junk food advertisers; or huge taxpayer subsidies still prop up agribusiness as usual or long lists of pesticides are classified “Generally Regarded As Safe” ETC — then we do not have anything near food freedom.
    This IS starting to be recognized, however…

  • Joel

    “Homestead food”? In New Hampshire? Ha, ha, homesteading in New Hampshire — such darling fantasy — 40 acres and a fool (and a trust fund)…in New Hampshire! New state motto: ‘Live pretentious or else’

  • Charles Farrell

    Hello Dan, you forgot to mention that hb-1402 came out of committe with every board member voting in favor of it. Also it had the support of Health and Human Services as well as Agriculture. As to your notion that states exercising there tenth amendment rights to be unconstitutional I would point out that santuary cities and medical marijuana are federally illegal but certain states allow it. I guess it’s only when it’s food choice that you take issue. My wife and I have fed our children raw milk and “non licensed” farm products thier whole life and they are healthier than most. Would you send HSaS after us for putting them in danger? Oh yea, HSaS is in support of 1420.

  • J. Allen

    Hey Joel,
    We are homesteading in NH along with lots of others. I have no trust fund, only 6 acres, and live on less than 20,000 a year. I sell organic NH sourced baked goods at our local farmers market. I will be happy to be relieved of state inspections, mounds of paperwork, licensing fees, and expensive water tests every year. Now what is pretentious about this? When food prices double we will be eating well and within our means.