Portside

In May, Anita Patton-McHaney and James McHaney, a retired couple living in Hearne, Texas, a city of about 5,000 located in the heart of the Texas Triangle, sued the Texas Department of State Health Services. Their hope is that a state court will provide clarity on an all-important question: What, exactly, are “pickles”?

The couple wants to take advantage of the state’s cottage food law by selling pickled beets, carrots, and other vegetables they grow in their market garden, but the state’s health department says that’s only legal if they want to sell pickled cucumbers.

The McHaneys, who argue this narrow definition infringes on their right to earn an honest living, want the court to acknowledge what the state itself knew more than 100 years ago: Namely, that the word “pickles” refers not just to pickled cucumbers but to a long list of vegetables or fruits that can be preserved in vinegar or salted brine.

“We don’t do very well with cucumbers on our place.

“The number and variety of fruits and vegetables used in pickle making is almost endless,” wrote the Texas Department of Agriculture in a 1917 bulletin, “cucumbers, tomatoes, onions, and green or unripe fruits being most common.”

Today, though, Texas officials seem to have had a change of heart, barring the McHaneys from selling the produce they grow and pickle. So why not cucumbers? It’s not that the McHaneys have anything against cucumbers—it’s just that that particular vegetable doesn’t grow as well where they live.

“There’s always produce you can’t sell fresh at market, so we were looking at how we could use some of that produce to make a value-added product,” Anita tells me, through her lawyers. “We had a number of vegetables that would have done well as a pickled vegetable, but the most obvious was beets; we grew wonderful beets.”

“We don’t do very well with cucumbers on our place,” Jim adds, also via the couple’s attorneys. “You know, different crops have different homes.”

The suit stems not from some pedantic or semantic battle but, rather, from the health department’s curiously restrictive interpretation of a law intended to benefit small food producers like the McHaneys. Commonly dubbed the Texas Homemade Food Bill, that law established a framework for regulating cottage food producers and their food products in the state.

  In theory, cottage food laws are meant to make life easier for small food entrepreneurs, allowing them to sell directly to customers out of their homes, at farmers’ markets, or at farm stands, festivals, and fairs. As I describe in my recent book, Biting the Hands that Feed Us: How Fewer, Smarter Laws Would Make Our Food System More Sustainable, these laws are intended to eliminate burdensome zoning, licensing, and permitting requirements and reduce startup costs for budding entrepreneurs selling low-risk foods.

Every state but one—New Jersey—currently has a cottage food law in place. But while the ubiquity of such laws sounds great in theory, several states have adopted laws that are needlessly restrictive in practice. Now, some small food businesses are finding themselves hamstrung by the very legislation meant to help them in the first place.

Why, for example, is the sale of mustard permissible in Texas but the sale of ketchup (which can have a similar or even lower pH) is not? Why does California enumerate (and therefore permit the sale of) dehydrated vegetables, dried vegetables, and dried fruits but not dehydrated fruits?

Then there’s Texas, with its dogmatic and literal insistence that “pickles” only means “cucumbers.”

There’s no reason to believe that pickled cucumbers are any more or less safe than pickled beets or peaches.

According to the Department of State Health Services, a “pickle” is a “cucumber preserved in vinegar, brine, or similar solution, and excluding all other pickled vegetables.” In case that leaves any room for doubt, the agency makes things very clear in the FAQ posted on its website: “Only pickled cucumbers are allowed,” it says. “All other pickled vegetables are prohibited.”

Why is Texas’s definition of pickles so narrow? Wisconsin’s cottage food law (dubbed the “pickle bill”), for example, allows the sale of any pickled fruits and vegetables that have a pH below 4.6, which makes them acidic and which inhibits the growth of harmful bacteria. Pickles can indeed give rise to some risks if their pH is not below 4.6, but there’s no reason to believe that pickled cucumbers are any more or less safe than, say, pickled beets or peaches.

Still, health department officials defend their actions.

“The purpose of food safety laws, including the Texas Cottage Foods Law, is to help make sure food being sold to the public doesn’t make people sick and that the people preparing food that could be hazardous have the training to do so safely,” says Chris Van Deusen, director of media relations with the Texas Department of State Health Services, in a recent email to me. “The law says pickles may be sold by unlicensed and uninspected producers but doesn’t mention other pickled products. Since we didn’t want to interpret something that wasn’t there, we used the most common definition of pickles when we implemented the law in 2013.”

 Is that true? Did the common definition of “pickles” in 2013 include only pickled cucumbers?

Nope. Evidence abounds to suggest the agency’s definition is wildly underinclusive. Merriam-Webster defines pickles as “food that has been preserved in brine or in vinegar; specifically: a cucumber that has been so preserved.” Dictionary.com defines a pickle as “a cucumber that has been preserved in brine, vinegar, or the like”—but the site then notes that the plural, pickles, refers to “any other vegetable, as cauliflower, celery, etc., preserved in vinegar and eaten as a relish.” Because the Texas Cottage Food Law uses the term “pickles” without any narrowing of the meaning of the term—as the state’s health department has chosen to adopt—the agency isn’t using “the most common definition of pickles” from 2013, or any time before that.

Rachel Laudan, a food historian, senior research fellow with the Institute for Historical Studies at the University of Texas at Austin, and author of the critically acclaimed Cuisine and Empire: Cooking in World History, echoes the dictionary entries.

.“Pickled vegetables are pickled vegetables,” Laudan tells me. “Whether they are fermented or simply preserved in vinegar, the method is more important than the vegetable.”

Nate Bilhartz, an attorney representing the McHaneys on a pro bono basis, tells me the state’s arbitrarily narrow definition of “pickles” has had serious consequences for his clients.

“With its unreasonably narrow interpretation of the Texas Cottage Food Law’s exemption for ‘pickles,’ the Department is infringing on our clients’ rights under the Texas constitution to earn an honest living free from unreasonable governmental interference,” Bilhartz tells me.

One key figure who’s supportive of the McHaneys’ position is Democratic State Representative Eddie Rodriguez, who wrote the 2013 law.

“That pickle definition is kind of flying in the spirit of the legislation,” Rodriguez told The Texas Tribune recently. “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 other words, Rodriguez is suggesting the health department may be engaging in lawmaking, which is outside its power.

Rodriguez isn’t the only one who feels the agency’s overly broad interpretation falls outside its mandate, while distorting the intention of the rule.

“While the Texas cottage food law has opened opportunities for hundreds of small businesses, it could and should be broader,” says Judith McGeary, executive director of the Farm and Ranch Freedom Alliance, a Texas-based nonprofit that advocates on behalf of independent farmers and ranchers nationwide, in a recent email to me. (McGeary and I both serve on the board of the Farm-to-Consumer Legal Defense Fund.)

“I’ve talked with farmers all over the state who want to provide healthy, locally raised foods such as sauerkraut, frozen vegetables, and pickled jalapenos—but they can’t, because the health department’s regulations pose too many burdens.”

Texas’s cottage food law—like every state’s cottage food law—was intended to benefit in-state farmers, entrepreneurs, and consumers. Unless a court rules in favor of the McHaneys, though, the state’s health department will continue to spoil both lawmakers’ best intentions and the dreams of small entrepreneurs in the state.

Baylen J. Linnekin is a food lawyer, scholar, expert witness, adjunct law professor, and Farm-to-Consumer Legal Defense Fund board member. Linnekin’s first book, Biting the Hands That Feed Us: How Fewer, Smarter Laws Would Make Our Food System More Sustainable (Island Press, 2016), reveals how regulations often proscribe sustainable food practices. Linnekin’s writings have appeared in the Boston Globe, N.Y. Post, Des Moines Register, Sacramento Bee, Reason, Huffington Post, VICE, Playboy, Wisconsin Law Review, Hastings Constitutional Law Quarterly, Chapman University Law Review, and elsewhere. He lives in Seattle with his partner of more than 20 years.