We had a beautiful display at the market each week.
Pretty soon we had a lot more than we could eat.
And we said 'gosh we got to do something with this.'
So we really thought we had it made.
Anita and Jim McHaney are retirees who moved from Houston to the Texas countryside in 2013.
Their plan was to live well and grow food on a 10 acre homestead
earning extra money selling produce at the local farmer's market.
We did amazingly well in the early stages.
They grew beets, okra, carrots, kale and Swiss chard.
Soil out there is very sandy and the beets just grew like mad.
Now the obvious thing to do, when you got more beets than you can sell
is to make pickled beets and can them.
Like most states, however, Texas has a so-called Cottage Food Law
that exempts certain items sold at farmer's markets
from the state's commercial food manufacturing regulations.
Foods like bread, produce, nuts, jams, popcorn and, of course, pickles.
But, what constitutes a pickle?
And who gets to decide?
The McHaney's discovered that the Texas department of state health services takes the narrow view.
What are pickles?
Pickles are made from cucumbers that have been preserved in vinegar, brine or a similar solution.
Only pickled cucumbers are allowed under the Cottage Food Law.
Legislators didn't say that, the health department did.
All other pickled vegetables are prohibited.
So, in order to sell their pickled beets at the farmer's market
the McHaneys needed a commercial food manufacturer's license,
to build a commercial kitchen,
to submit the recipes to a government contractor at Texas A&M university
and to register for a $700 food manufacturing class.
And it's only once a year, so if you miss it this October
then it's a whole year before you get another shot at it.
We got right down to signing up for the class,
I was gonna take it despite people said 'you won't learn a damn thing in there.'
And then saw that $700 dollars and said 'you know, this is crazy, this is insanity.'
Preposterous.
The McHaney's neighbor Virginia Cox, also grows and sells food at the local farmer's market.
She'd like to be able to pickle her leftover okra.
I could make a whole lot more on it pickled
because if it doesn't sell this week, I can take it back to the market next week.
If it's fresh and it doesn't sell this week, it's not gonna sell next week.
Today the McHaney's farm lies fallow.
But they have decided to take the state of Texas to court
with the help of the Dallas law firm Drinker, Biddle and Reath who took on the case pro bono.
Their argument is that the regulations on cottage food production are unreasonable
and stifle their economic opportunities.
People can't afford that kind of stuff, that shuts them out.
As precedent, the McHaney's case invokes the landmark 20015 decision by justice Don Willett
striking down occupational licensing for Texas eyebrow threaders.
Their challenging the Health Department's definition of pickles and subsequent regulation
on the grounds that it impinges on their constitutionally protected right to earn an honest living.
The Texas Department of State Health Services wouldn't comment on the pending lawsuit.
But defended the agency's rule as reflecting the most common interpretation of the word 'pickle.'
It forces you if you want to do a pickled beet
to go to a 700 dollar class that actually nothing to do with home canning.
And now we've got hundreds and hundreds of occupations
that you gotta pay the government to do your job.
For now the case is still pending and it's just entered the discovery phase.
But the McHaneys are optimistic about it's outcome.
You know we talk about pickling beets, but it's a lot lot bigger issue.
It's about economic freedom and government by bureaucrat regulations that got nothing,
well it's who bought and payed for the bureaucrat.