Originally published at Reason.com | Mark McDaniel | 10.2.2018 10:40 AM
Anita and Jim McHaney are retirees who moved from Houston to the Texas countryside in 2013. Their plan was to live well and grow food on a 10-acre homestead, earning extra money selling produce at the local farmers market. They grew okra, carrots, kale, swiss chard, and beets. Lots and lots of beets.
"That soil out there is very sandy, and those beets just grew like mad," says Anita. "Now the obvious thing to do when you have more beets than you can sell, is to make pickled beets and can them."
And this is where the McHaney's ran into trouble.
Like most states, Texas has a so-called "cottage food law" that exempts certain items sold at farmers markets from the state's commercial food manufacturing regulations—foods like bread, produce, nuts, jams, popcorn, and, of course, pickles.
But what constitutes a "pickle," and who gets to decide? The McHaneys discovered that the Texas Department of State Health Services (DSHS) takes the narrow view.
According to the DSHS, "A pickle is a cucumber preserved in vinegar, brine, or similar solution, only pickled cucumbers are allowed under the cottage food law. All other pickled vegetables are prohibited"
"The legislature didn't say that, the health department did," Anita explains.
So in order to sell their pickled beets at the farmers market, the McHaneys needed a commercial food manufacturers license, to build a commercial kitchen, submit their recipes to a government contractor at Texas A&M University, and register for a $700 food manufacturing class. However, the class is only offered once a year.
"We got right down to signing up for the class…even though people said 'you won't learn a damn thing in there,'" says Anita. "Then I saw that $700. I thought, you know, this is crazy. This is insanity."
The McHaney's neighbor, Virginia Cox, also grows and sells food at the local farmers market. She'd like to be able to pickle her leftover okra.
"I can make a whole lot more on it pickled because if it doesn't sell this week, I can take it back to the market next week," says Cox. "If it's fresh and it doesn't sell this week, it's not gonna sell next week."
Today, the McHaney's farm lies fallow. But they have decided to take the state of Texas to court with the help of the Dallas law firm Drinker, Biddle & Reath, who took on the case pro-bono.
Their main argument is that the regulations on cottage food production are unreasonable and stifle their economic opportunities.
"People can't afford that stuff, it shuts them out," says Anita.
As precedent, the McHaney's case invokes the landmark 2015 decision by Justice Don Willett striking down occupational licensing for Texas eyebrow threaders.
They're challenging the health department's definition of pickles and subsequent regulation on the grounds that it impinges on their "constitutionally protected right to earn an honest living."
The Texas Department of State Health Services wouldn't comment on the pending lawsuit, but defended the agency's rule as reflecting "the most common" interpretation of the word "pickle."
"It forces you, if you want to do a pickled beet, to go to a $700 class that has nothing to do with home canning," says Jim. "And now we've got hundreds and hundreds of occupations where you have to pay the government to do your job."
For now, the case is still pending, but the McHaney's are optimistic about its outcome.
"You know, we talk about pickling beets, but it's a lot, lot, bigger issue. It's about economic freedom," says Jim.
Video produced, shot, and edited by Mark McDaniel.
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