7 months ago

Helping cottage food vendors out of an Alaskan pickle

By Joshua P. Thompson Senior Attorney

PLF receives requests for assistance all the time. Although any request may turn into a major civil rights lawsuit, we must turn down the vast majority of these requests. PLF subsists on the generous contributions of our donors, and we need to use those donor dollars judiciously. Accordingly, we select only those rare cases where there is a good chance of setting important precedent that can be used by other Americans. But there’s also a middle ground that we don’t usually report — situations where the government changes its conduct prior to a lawsuit. This scenario just happened in Anchorage, Alaska.

PLF received a request for assistance from a cottage food vendor near Anchorage. For years, this business sold its pickles at farmers’ markets in the area. It had always given away free samples in order to demonstrate how delicious the pickles were, and to entice more customers to purchase. Recently, however, this vendor was told that it could no longer provide free samples to its customers. According to Anchorage officials, providing samples violated the food code and was prohibited. The business’s sales dropped significantly.

My colleague, Anastasia Boden, and I began looking into the Anchorage Food Code. It’s lengthy, and at one point it even incorporates chapters of the 2005 FDA model code. After spending hours pouring through this code, we could not find any reason why it was illegal to give out free samples at farmers’ markets. So, we contacted the Anchorage Department of Health and Human Services.

After a number of back and forth calls with the Department, we double checked various justifications, but nothing in the code quite squared with the Anchorage policy. Also, around this time, we were contacted by a second cottage food vendor, this one who sold jams, and this vendor was also prohibited from providing samples. This second vendor triggered something in us, as we remembered a provision in the Anchorage Food Code that specifically exempts selling cottage foods at farmers’ markets. We called the Department, and explained why we thought these businesses were exempt from the Anchorage Food Code. Then we waited.

Yesterday, I received the following email:

Mr. Thompson,

Thank you for your communication on cottage food sampling in the Municipality of Anchorage.  The current Anchorage food code does not address cottage food vendors or the practice of providing samples to customers.   We are in the process of developing guidance for safe and sanitary sampling with the goals of being easily understood and allowing the cottage food industry to thrive while protecting the health of consumers.  As you mentioned, we are also working on proposed revisions to the food code which would include a provision for cottage foods.  The proposal, would not prohibit the sampling of cottage foods.  Please feel free to let us know if you have further questions.  Thank you again for your email.

In other words, Anchorage has no authority to prohibit cottage food vendors from providing samples to their customers. Although we never represented the Anchorage businesses that contacted us, we are very pleased we could help them out.

The Anchorage officials deserve credit for recognizing the limits on their authority. Too often we battle obstinate government officials who refuse to back down even when shown that their policies and practices are illegal. Litigation then becomes necessary to fight for individual rights. Fortunately, we were able to resolve the situation in Anchorage prior to litigation becoming necessary.

PLF is taking a keen interest in the cottage food industry. It is an industry with low start up costs where any individual can become an entrepreneur and earn a living. While the cottage food industry is booming, it’s also becoming increasingly regulated. PLF will continue to look into these regulations and, where necessary, fight for individuals’ and businesses’ right to earn a living. To that end, if you know someone who is having trouble fairly selling their product, or if the regulations are becoming too onerous, have them contact Pacific Legal Foundation. Perhaps we can urge the government to back off, like what happened in Anchorage, or perhaps it will just become PLF’s next Supreme Court case.

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