In Defense of 1222

Catching up on my weekly reading this morning, I clicked through from Madville Times’ recent post about local foods development in Montrose, SD to legislator and esteemed editor of South Dakota Magazine Bernie Hunhoff’s Editor’s Notebook post on the recently-passed HB 1222–now codifed as the SD Home-Processed Foods Law.

As much as I respect Mr. Hunhoff and his work for this state, I respectfully disagree with his opinion in regard to the onerousness of the rules being proposed under this law.

Hunhoff notes that on the one hand, local food production and sales are being encouraged in communities and statewide, but on the other hand, we have this legislation and its accompanying rules, which are very specific–even on such minutia as the size of lettering on labels.

First, it’s important to know the origins of HB 1222: after the so-called Health Department “crackdown” last summer at the Black Hills Farmers Market in Rapid City (during which several vendors were told to pack up their illicit kuchen and jellies), a statewide group of market managers, producers, and other interested parties sought help through Dakota Rural Action for clarity on what was, and was not legal to sell direct to consumer.

I was part of that group–as both a vendor at, and president of, the Vermillion Area Farmers Market, and as a member of the DRA Small Farms Committee.

And when we first met in Pierre with the Health Dept., State Dairy Lab folks, and Dept. of Ag representatives, what we found out was pretty grim: turned out, pretty much nothing we were doing at farmers markets–had been doing for generations–was actually legal–in regards to home-processed foods, anyway.

But the good news was that no one wanted to shut us down.  The Health Department doesn’t have the manpower to police every farmers market in the state–they inspect markets based on tips from the public.

And when they get a tip from the public, they have to inspect, and they have to enforce the law.  That’s their job, and that’s what they were doing in Rapid City last summer.  It’s not fun to be the bad guy–to be the one to tell grandma to shut down her famous pie-making operation in front of her devoted customers.

So, while the DRA team initially went to Pierre to get clarification on what was legal and what was not (which was a pretty quick process, since everything home-processed was then illegal) and to figure out how to make that information more widely available, the Health Department folks were already rarin’ to work on legislation to provide some exemptions.

Many states currently have, or are in the process of crafting, some sort of legislation to allow sales of certain home-processed foods direct to consumers at farm stands and farmers markets.  They’re often referred to as “Pickle Bills” or “Pickle Laws,” and each state’s version is slightly different.

The DRA Small Farms Committee and other interested producers and market managers researched several states’ laws and put together a preliminary list of what we wanted to see in our bill, and the Health Department responded with what they thought was safe, and that they would feel comfortable backing.

The result was HB 1222–on some points, it’s a bit more restrictive than other states’ (Minnesota’s was our major guide, but there were some aspects of the bill our Health Dept. was uncomfortable with–like no testing requirements for acid or acidified foods), but on other points, it’s less restrictive.

One aspect of our law that has not been highlighted as much as it should be is the fact that there is no income limit for sales of home-processed foods direct to consumer.

That means in South Dakota, you get your famous salsa recipe approved and your two samples tested, get your labels in compliance, and you’re good to go for as long as you want to go, and for as much of that product as you can sell direct to consumers, so long as you don’t change the recipe.

While Minnesota imposed a $5000 a year limit–at which point a  producer must obtain licensing and process in a commercial kitchen, in South Dakota you could feasibly make a living off home-canned and home-baked goods sold direct to consumers through farmers markets.

This is a huge boon because it doesn’t pre-suppose a theoretical point at which a producer will be earning enough income to make that “step up” to the commercial processing required to wholesale (income limits, in practice, are almost never high enough for producers to actually make that step up without acquiring a significant amount of debt).

In the end, as producers, vendors, and market managers, we didn’t get everything we wanted in the bill, but in some respects, we got more than we hoped for.  It was a process of negotiation, but we came out with a piece of legislation that had such broad support, it was passed unanimously at every level of state government.


But back to Hunhoff’s post, and the seemingly onerous set of rules to go along with this bill.  Many of the comments reflect a real discomfort with what’s deemed government intrusion and regulation of the “little guy.”

Setting forth in writing the size requirements for the font on the labeling may seem ludicrous, but many of our regular vendors want to know that information–they are investing money into new labeling, and they want to get it right.

If there’s going to be a rule, make it specific–we’ve had so little clarity in this state on direct-to-consumer sales for so long, it’s refreshing to get something that is sparkling-clear.  It makes things easier for serious vendors–for people trying to make a living in what is all too often a dark muddle of misinformation, or a complete lack of information.

We need more serious vendors at markets in this state if we want to grow–if we want to stop disappointing customers with random attendance at markets and an abundance of products one week and a lack of them the next.  And we owe it to the vendors who are serious–who are consistent–to be clear about what they need to do.

I’ve written on the problems with one-size-fits-all food safety laws and how they imperil markets.  But we do need food safety laws, and not just for the big guys.

Saying that farmers markets should be entirely unregulated is kind of like saying that the little cafes in small towns should be unregulated–they’re only serving regulars, after all–everybody knows them.

But we all know that the little guys (and gals) in rural South Dakota have been a long time at the brink of drying up and blowing away–especially as our farms continue to swallow each other up and our rural populations continue to dwindle.

If we have an insular attitude about how we’re only going to do business with people we know–we’re only going to serve our “regulars,” we’re not going to grow–sustainably or otherwise–and we’re continually sitting on that ever-finer line between making it and not.

We need to be willing to step up and take responsibility for the safety of our products if we want to market to a broader audience.  If you want to barter your homemade cheese for your neighbor’s homemade jelly, fine.  If you want to walk out into the marketplace and sell to the public, that’s a different thing.


One organization that is playing a big role in the implementation of the Home-Processed Foods Law is the Cooperative Extension.

While the Extension has suffered funding reductions recently at the state and federal levels, their ubiquitous presence in rural areas and their willingness to provide training for safe home canning and for lower-level third party processing authorities to test foods for compliance with HB 1222 could be a real boon–both for producers and for the Extension itself.

Extension appoints educators and specialists to counties where there is a need for their expertise.  With the resurgence in home-processing of foods, and the ability to sell them legally at farmers markets across the state, there will be a demonstrable need for more Food Safety Educators at Extension offices throughout the state.

Too, Extension’s training of lower-level third party processing authorities across South Dakota (I participated in this training a couple of weeks ago) can give producers a supplemental source of income, as well as providing them with more up-to-date food safety knowledge to keep their families, markets, and communities safer.

And yes, I’ll admit that I’ve been a little recalcitrant myself on the whole food safety issue.

It’s not as if I’m uninterested in food safety or don’t see a need for it, but as attendees at the Extension’s Farmers Market Workshop a couple of years ago know, I have been known to stand up and challenge the idea that our fields ought to be sterile and the wildlife ought to be exterminated.

Funny that the person with whom I’ve now undergone food safety and acid foods processing training is the very person I went a couple rounds with (verbally, of course) at that workshop not so very long ago, but I’ve come a lot closer to Joan’s point of view (not about sterilization of farmland or extermination of wildlife, mind you) since then.

We are living in a different world than our grandparents did–a bigger world with some bigger perils.  There are many in our communities with health conditions that compromise their immune systems and make them more vulnerable to pathogens that the rest of us can shake off with hardly an uncomfortable night’s sleep.

While I still eat my peas straight out of the field, and I’ll simply brush the dirt off a good-looking carrot from a trusted vendor before snapping it into my mouth, I’ve seen some products at farmers markets that practically curled my hair.

My prime example is the homemade venison chili with beans–boiling water bath canned and offered for sale from the tailgate of a vendor’s van.  I had to ask (it wasn’t at the Vermillion market, so I couldn’t very well tell her to pack it away), and she said it was safe to process that way because of the presence of tomatoes.

Surely many of her market regulars are savvy about how very toxic that food product could be (and to be fair, the vendor’s family has suffered no apparent botulism-related deaths), but many of them are not.

While we may be experiencing an uptick in interest about home-preservation of foods, the vast majority of the public has little knowledge about home canning procedures–and then some who have been canning for decades use procedures or methods that are not considered reliably safe–certainly not for selling to the public.

If we want to set our products out for the public to consume, then we owe it to that public to offer them something that is wholesome and safe.  It may not be good enough to simply say, “well, my family eats it and we’re OK,” because my family is not your family.


HB 1222 does make selling home-processed food products a bit more complex than it used to be for a lot of vendors–but then what was simple before was also illegal before.

However, because the vast majority of farmers market vendors who were selling products produced illegally were never inspected or shut down in the decades previous to the bill’s passage, it may seem like this is government intrusion on the “little guy” rather than an alleviation of one-size-fits-all regulation.

In my mind, passage of legislation that helps to ensure the safety of home-processed foods for sale to the public is not the end of the line.  It’s a step toward legitimizing cottage industries and local foods while we work to re-build the small scale processing, storage, and distribution infrastructure that has all but disappeared in our rural communities.


In the meantime, I am planning to start testing and verifying the recipes, processing method, and pH levels on the first batch of jellies delivered to me by one of our regular market vendors this week. They’ve got their new labels printed according to the bill’s specifications, and they’re scheduling lots of sales venues for this season.

Yes, we’re groaning a little on both sides about the paperwork and the process and the time involved, but I think most of our vendors know that we’re all in this together, we’re helping each other out, and that we’re working toward something bigger and better in the end.


4 responses

  1. I read Hunhoff’s article and thought it was good from his perspective as a legislator who was one of the first to support the legislation. He’s one of the folks who brought some balance in favor of the ‘little-guy.’

    That said, he’s not a producer, so he’s limited in his scope of view.

    And even though I’m on my way out the staff door of DRA, I would like to thank you, Rebecca and Bernie, another member, for BOTH your work on this issue. Shows what members of DRA can do from South Dakota when they work together.

    When we all start sitting down to tables brimming with local foods and locally processed foods, I think we should toast all of you: the legislators, the Health department for wanting to work on this, Extension who keeps on keeping on in an ever more hostile land-grant world, the producers (of course!), and the rest of us consumers, too.

    Proud to be a South Dakota and member of DRA. 🙂

  2. Thanks for the wonderful response, Tasi. I, too, thought Bernie’s article was good in terms of the difference between what he intended to support and what they are looking at in terms of rules.

    The whole thing does make me a little weary, I’ll admit, and it’s not as though I’ll be making a major income off my third-party processing authority income (as of right now, I’m saying $5 a recipe, which does not really even cover my time). But it will help strengthen the market, I think, and as I said before–legitimize local foods and cottage industries. That’s a step in the right direction!

    Bless you for all the wonderful work you do!


  3. Excellent post, Rebecca. I am grateful for Bernie’s support in wanting to make it easier for local producers to sell goods, and can understand that from the outside HB 1222 can seem a little overwhelming. This post helps clarify the background on the issue and explain exactly why this legislation is beneficial. Thanks so much for all of your hard work on the issue!

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