FARFA continues to fight for the rights of local food producers under the cottage foods laws that we got passed in 2011 and 2013. Check out our letter to the City of Dumas:
June 24, 2013
Mayor Pat Sims
Commissioner Mike Funk
Commissioner Vernon McDowell
Commissioner David Bonner
Commissioner Steve Bodnar
Dear Mayor Sims and Commissioners:
Your Health Department recently sent a letter threatening to shut down and impose fines on a legal cottage food operation.
In speaking with Mr. Paul Jenkins, it appears that the Department’s position is that it has the authority to ban cottage food operations operations despite the 2011 state law that legalized them. This position is not legally defensible.
The 2011 law states: “A local health department may not regulate the production of food at a cottage food production operation.” TX Health & Safety Code § 437.0192(a). It is illogical to say, as Mr. Jenkins did to me, that the health department can ban a cottage food operation when it cannot regulate it. Such a position contradicts both the language of the statute and the legislative intent.
Your city ordinance is not “more stringent” than the state law. Rather, it contradicts the state law, and is therefore void.
Many cities have a provision in the health code portion of their city ordinances that prohibit the sale of food prepared at home, similar to the City of Dumas. Few have taken affirmative action to amend their city ordinances, yet they all recognize that the state cottage food law has superseded their city health codes on this issue. To my knowledge, there is no other city in this State that has taken the illogical position that their health departments can ban a cottage food operation, when they are barred from regulating such operations.
Moreover, the Texas Legislature recently adopted an expansion of the cottage food law. HB 970 expressly states: “A local government authority, including a local health department, may not regulate the production of food at a cottage food operation.” HB 970, Section 4, amending TX Health & Safety Code § 437.0192(a). The bill has been signed by the Governor and will go into effect on September 1. This amendment to the bill further clarifies the legislative intent that cottage food operations be able to operate without interference from local government authorities.
I hope you will reconsider the City’s position. Cottage food operations are small businesses of great value to both the owners and the entire community. If you proceed with shutting down legal cottage food operations, we will have to consider all our options, including potentially bringing suit to ensure to protect people’s rights and businesses.
I look forward to your response. If it would be helpful to discuss any of these issues on the phone, please feel free to call me at 254-697-2661.
Judith McGeary, Esq.
Farm and Ranch Freedom Alliance