A couple who retired to a little farm northwest of College Station is suing the Texas Department of State Health Services to broaden the official, government-sanctioned definition of a pickle.
Anita and Jim McHaney, who have 10 acres near Hearne in Robertson County, contend in their lawsuit that an overly narrow reading by the department of a law passed in 2013 by the Texas Legislature has made it impossible for them to earn money from the produce they could grow, the Associated Press reported.
The McHaneys stopped growing anything on their land until the case is decided, according to a Texas Tribune story.
A bureaucratic decision by State Health Services “has deprived our clients the ability to supplement their income by selling pickled produce from their market garden,” Nate Bilhartz, a Dallas attorney who has taken the case pro bono, said.
The law flies in the face of a “recent Texas Supreme Court precedent upholding the right under the Texas Constitution to earn an honest living free from unreasonable government interference,” Bilhartz said.
The McHaneys said they turned to Austin’s Institute for Justice, a legal group that has made a reputation for fighting regulatory overreach, when they did not get satisfactory answers from State Health Services as to how the agency came to interpret the law.
After a salmonella outbreak in 2009 killed nine people nationally, State Health Services, under legislative pressure found 520 Texas companies — many of them small, Mom & Pop operations — were not properly licensed to manufacture and sell food.
The tightening of licensing brought pressure on the legislature from those smaller operations for exemptions to the food manufacturer law. In addition to a license that can cost hundreds of dollars, food manufacturers must work in a state-approved commercial kitchen and complete a food operation and safety course that also costs hundreds of dollars.
In 2011, the Legislature exempted home baked goods. Two years later, they added several other products commonly sold at farmer’s markets to the exemption list, including pickles.
In February of 2014 while incorporating those exemptions into its guidelines for operating a so-called “cottage food production operation,” the agency defined a pickle this way: “A cucumber preserved in vinegar, brine, or similar solution, and excluding all other pickled vegetables.” (Please see rule number 10 here)
That might have been all right for growers whose fields were accommodating to cucumbers. But when the McHaneys started growing vegetables in 2013 after Jim retired, they grew fine greens and outstanding beets. Cucumbers, they told Texas Tribune, were a problem.
After the local newspaper in College Station featured the McHaneys proudly describing their success at the Brazos Valley Farmers Market, they found out that everything pickled they were selling at the market was in violation of the law.
“It turns out it’s just very difficult to meet all of the rules to make a pickled beet. You’d think that it would be easy, but it’s not. Every time we thought we had figured out what we had to do to meet all the rules, we found another one,” Anita McHaney told the Tribune.
When asked about the definition, State Health Services spokesman Chris Van Deusen told AP, the agency “used the most common and generally understood definition of pickles. No one raised any objection to that definition when we were formulating the rules in 2013.”
Rather than face fines that can reach $25,000, the McHaneys stopped selling and growing altogether. But the definition and the law behind it just didn’t make any sense to the McHaneys.
They hope the lawsuit prompts some common sense thinking and some respect for economic liberty.
“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,” the draft of the lawsuit said.
Mark Lisheron can be reached at [email protected].