What's in a name? Would a pickle by any other brine taste as sour? With apologies to Shakespeare, the Texas Department of State Health Services seems to think that pickled vegetables by any name other than cucumber isn't a pickle at all, so a Texas couple is suing to change the definition.
Anita and Jim McHaney retired to a 10-acre farm in Hearne, Texas, in 2013. They started a farm, growing vegetables like beets, kale, and and collard greens and selling them at a local farmers market in Brazos Valley. According to reporting by The Texas Tribune, the McHaney farm, named Berry Ridge Farm, was perfect for growing root vegetables. The cucumber was the only vegetable they had problems growing.
Even though they were selling out of their fresh produce every Saturday at the market, they knew that only offering fresh produce in season wasn't a sustainable business plan. But that was okay — they had a plan to sell vegetables year round by pickling their produce. Pickled vegetables like beets, and maybe carrots and okra, could be sold even in the middle of winter.
It was a solid plan. Pickled vegetables tend to be popular at farmers markets and Texas has a law that allows small mom-and-pop operations to sell products like popcorn, pickles, and other food products at farmers markets and fairs. The law, passed in 2013, is known as the Texas Cottage Food law; it requires sellers to take an online class in food handling and meet a few requirements, but nothing like what large-scale producers are required to do.
The law was designed to let entrepreneurs making less than $50,000 in gross annual income from their food products go into business without needing to set up a commercial kitchen, which can be incredibly expensive. Farmers like the McHaneys could use their home kitchen and sell directly to the consumer.
When the law passed, there was some concern about food safety. It's a fair concern — commercial kitchens have to jump through many hoops to ensure that the food they sell is safe for consumption. And as anyone who has had a canning fail can tell you, a bad jar of pickles is not something you want to eat. But the law specifically covers "nonpotentially hazardous foods" meaning mostly foods that are non-perishable (at least before opening).
There's also a bit of personal responsibility here. The law puts the decision to buy these kinds of foods into the consumers' hands. Know your farmer (and your food producer) and if you don't trust them, don't buy from them. It's a very Texas way of doing things.
Which is why it's a bit strange the Texas Cottage Food law defines pickles as being cucumbers only. According to The Texas Tribune article:
A spokesperson for the state health services department, Chris Van Deusen, said the pickle definition is based on lawmakers' language. The legislation they passed, he said in a statement, "sets out a specific list of items that cottage food producers may make and sell, including 'pickles.' It doesn't refer to other pickled vegetables, pickled foods or pickled products, so we used the most common and generally understood definition of pickles: cucumbers."
But the lawmaker that authored the cottage food law in 2013 said this narrow definition wasn't his intent. State Rep. Eddie Rodriguez, D-Austin, told The Texas Tribune. "That pickle definition is kind of flying in the spirit of the legislation. I don't know if this was an intentional thing on the department's part or not, but if the net effect of it is to really narrow the legislation in a way that was not my intent ... they may be legislating a bit by rule."
In case you're wondering, the process for pickling beets or carrots or okra or any vegetable is exactly the same. However, in order for the McHaneys to sell pickled anything but pickled cucumbers, they would have to install a commercial kitchen, take additional training classes, and comply with regulations for commercial food operations.
Given that the ground where their farm is located isn't cucumber-friendly and they haven't had success growing that particular vegetable, their only options were to jump through the extra regulatory hoops or try to change the definition of pickle. The McHaneys tried to work through the process, contacting Department of State Health Services to ask about the definition and see if they could help get it changed.
When none of that worked — and they couldn't get a response from the agency that actually explained why the narrow rule existed — they decided their next step was to sue the state agency for infringing on the couple's economic liberty. A draft of the legal petition states, "There is no reason to treat pickled beets differently than pickled cucumbers, and the Department has not even attempted to articulate its rationale for doing so."
While the case matters personally to the McHaneys — they've closed the farm while they focus on getting the law changed because — it also matters to future Texas farmers and food producers. It could even be an example for other states trying to navigate the narrow path between keeping consumers safe while allowing entrepreneurs trying to start food-based businesses to make a living.
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