June 8, 2018

Drinker Biddle Team Files Pro Bono Suit on Behalf of Texas Couple Barred From Selling Homemade Pickled Products

Drinker Biddle Dallas associates Scott Brinkerhoff and Nate Bilhartz have filed a pro bono lawsuit on behalf of Jim and Anita McHaney of Hearne, Texas, who have been barred by the Texas Department of State Health Services from selling homemade pickled products at their local farmers’ market.

Obtaining a food manufacturer’s license is a lengthy, burdensome process that includes installing a commercial kitchen, completing expensive training courses, and dealing with lots of governmental red tape. Recognizing that thousands of Texans are active in the home food industry, the Texas legislature in 2011 passed the Cottage Food Law, which legalizes small-scale farmers to sell homemade foods at farmers’ markets without a food manufacturer’s license.

As small-batch sellers of homegrown pickled produce, the McHaneys thought they would be exempt from the onerous licensing requirements because the Texas Cottage Food Law specifically exempts homemade “pickles” from the food manufacturer requirements. Unfortunately, for the McHaneys, the Department has insisted that the definition of “pickles” is limited to pickled cucumbers, and excludes any other pickled produce such as beets, okra, or carrots.

The suit alleges that the Department does not have a rationale for this distinction, since the pickling process is virtually identical for the other foods. In addition, the complaint alleges that the narrow exemption ignores recent Texas Supreme Court precedent upholding the right under the Texas Constitution to earn an honest living free from arbitrary licensing requirements.

Links to coverage of the case in a number of media outlets are below.

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