State seeks judgment upholding ‘Food Freedom’; Havens asks for his day in court

Jeffrey P. Havens, the former president of the Montana Environmental Health Association, is an expert in food safety who is relatively new to the legal arena. Michael D. Russell, an assistant attorney general, is an expert in defending the State of Montana, but he’s new to food safety.

In Jeffrey P. Havens v. State of Montana, Havens, representing himself, and Russell are asking Chris Abbott, the presiding judge of Montana’s First Judicial District Court in Helena, to rule in their favor. Havens, who for a decade led wholesale food safety for the Montana Department of Public Health and Human Services, filed the civil action in 2023 mainly over the 2021 Montana Local Food Choice Act (MLFCA).

Havens views the MLFCA as “very similar” to Wyoming’s 2020 “Food Freedom” law and, along with a series of actions dating back to 2011, believes it has put Montana food safety at risk. In his latest court filing, Havens said, “The 2021 MLFCA allows the commercial sale of interstate raw milk—single ingredient and single product that is not under federal jurisdictional authority—and commercial sale of intrastate low-acid canned foods and intrastate acidified foods (high-risk foods), which are very likely to have multiple food ingredients that have already been subject to federal jurisdictional authority.”

Montana’s assistant attorney general filed a motion on May 6 asking the court to rule in favor of the state.

Havens responded on May 23, opposing any judgment for the state and “respectfully” asking Judge Abbott for “the opportunity to argue my case at a future date on public health facts, public health law, and the Montana Constitution, rather than grant Defendant’s implied and willfully negligent arguments that unwitting consumers of high-risk commercial homemade foods [be] imperiled to a future botulinum neurotoxin and/or similar outbreaks.”

In his filing, Havens provides the court with a side-by-side comparison of Montana’s Cottage Food law and the MLFCA. Under Cottage Food rules, consumer protection is provided, and no false or misleading claims or unsafe or dangerous products are allowed. By contrast, Havens argues the MLFCA does not provide consumer protection and is open to false or misleading claims and unsafe or dangerous products.

While numerous states have adopted various versions of “Food Freedom,” Havens is the only known plaintiff to challenge such laws on food safety grounds.

Havens says “unwitting consumers in Montana purchase homemade food under two very different sets of homemade food laws—one based on public health, food science, and consumer safety, while the other is merely fudging an antigovernment agenda based on a food freedom marketing campaign.”

He says Food Freedom rests on the meaningless concept of an “informed end consumer.”

Montana’s most recent “Food Freedom” development came in 2023, when the Legislature passed and Gov. Greg Gianforte signed SB 202 into law. It clarifies that the bill removed authority from local health boards.

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