AUSTIN, Texas (AP) – A Texas couple claims in a lawsuit filed Thursday that burdensome state regulations have put them in a pickle because they’re prevented from supplementing their income by selling more of their produce at farmers’ markets.
Jim and Anita McHaney argue in their lawsuit filed against the Texas Department of State Health Services that the so-called cottage food law only permits them to sell one pickled item: cucumbers.
The law governs the sale of produce, pies and other goods at places like markets and fairs. It also requires that sales don’t exceed $50,000 a year.
The McHaneys say "value-added products" such as pickled okra, beets or carrots generate more revenue in their retirement and are important to help sustain their Berry Ridge Farm in Hearne, in Robertson County, according to one of their attorneys, Nate Bilhartz.
Pickling also allows them to reduce the amount of aging produce that’s tossed to a neighbor’s cows for feed, Bilhartz said. If the state loosened its regulations, then the couple could take the produce that doesn’t sell at market, pickle it and sell it at a value-added price – generating added revenue to cover farm costs, he said.
State Health Services "has deprived our clients the ability to supplement their income by selling pickled produce from their market garden," Bilhartz said.
Complicating matters for the couple is that while their 10 acres are fertile for carrots, tomatoes and other produce, it’s not welcoming ground for cucumbers.
If the McHaneys were to sell other pickled produce, they’d need to obtain a food manufacturer’s license that would require more money, installation of a commercial kitchen, completion of training courses and compliance with an array of other regulations.
The narrow definition of what can be pickled under the cottage food law is striking in light of a state with Republican leaders who often rail against the burden of regulations. Gov. Greg Abbott, for instance, has criticized "runaway regulations" by cities that are threatening "to turn the Texas dream into a California nightmare."
Chris Van Deusen, spokesman for State Health Services, said the agency "used the most common and generally understood definition of pickles" after the Legislature passed the cottage food law in 2011.
"No one raised any objection to that definition when we were formulating the rules in 2013," Van Deusen said by email.
Bilhartz said the McHaneys are simply looking to sell produce to make their market garden sustainable, unencumbered by overreaching government rules.
He said the distinction between cucumbers and noncucumbers ignores "recent Texas Supreme Court precedent upholding the right under the Texas Constitution to earn an honest living free from unreasonable government interference."
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