One of the most consequential laws of the 2022 legislative session received next to no media coverage. But thanks to its passage, you might get to keep seeing your doctor, or have a nurse the next time you go to the hospital.

During the pandemic, health care facilities found themselves with sudden, critical shortages of providers. But by law they couldn’t bring out-of-state providers here to fill the gaps. Those providers lacked New Hampshire licenses.

New Hampshire does not automatically recognize out-of-state professional licenses. So the state had to tell hospitals and other employers that they couldn’t fill their staffing needs with qualified, licensed health care professionals because those professionals had licenses issued by the wrong state.

Gov. Chris Sununu responded quickly by issuing emergency orders that let these providers come to New Hampshire under an emergency license. Thousands did.

But here’s the problem with emergency licenses. They end when the emergency ends.

An emergency license is like a life raft that deflates when the storm ends.

Even if you Haven’t reached shore, that raft is gone. Now what?

New Hampshire issued emergency licenses to 22,328 health care professionals during the pandemic. Those licenses were set to expire in March.

What’s the big deal; those are just temporary helpers, right?

The 22,328 emergency license holders total 26% of all licensed health care providers in the state. They included 951 mental health counselors, 1,064 social workers, 1,114 psychologists, 2,104 Advanced Practice Registered Nurses, and 14,920 physicians.

Emergency license holders represent 36% of licensed alcohol and drug counselors, 39% of licensed advanced practice registered nurses, 44% of licensed independent clinical social workers, 45% of licensed clinical mental health counselors, 47% of licensed marriage and family therapists, 63% of licensed psychologists and 65% of licensed physicians.

To prevent a sudden and massive reduction in access to providers, the state needed to prevent the expiration of those licenses.

The solution was Senate Bill 277, which made those emergency licenses permanent. It also restored the Office of Professional Licensure’s authority to issue emergency licenses, and created an option for issuing emergency licenses going forward.

The bill preserved Granite Staters’ access to thousands of providers who had been offering care safety in the state for two years. But its long-term impact is even more important.

By granting permanent licenses to out-of-state providers, the bill undermines the argument, often made by industry trade associations, that out-of-state occupational licenses are inherently inferior and must not be recognized by New Hampshire.

In one fell swoop, the state just granted permanent licenses to more than 22,000 health care professionals licensed by other states. During two years in which those professionals practiced in New Hampshire, the Office of Professional Licensure recorded no serious health or safety violations from those practitioners.

Unfortunately, the state didn’t follow through to the obvious logical conclusion and simply grant automatic license reciprocity for practitioners licensed in other states. Legislators were not quite ready to go that far.

New Hampshire’s experience with emergency health care licenses during the pandemic showed that universal recognition of occupational licenses is a safe and effective way to increase access to medical care for Granite Staters. Why wouldn’t it also be a safe and effective way to increase access to all licensed professionals?

If relief from burdensome regulations could be measured in pint glasses, this year’s relief for New Hampshire’s beer industry wouldn’t fill a 2 oz flight glass. 

New Hampshire alcohol laws are a twisted knot of post-Prohibition restrictions pocked with favoritism and special protections for incumbent players. Reforms come slowly and gradually. This year, Granite State brewers got just a shot of relief.

Craft breweries that survive the start-up process face enormous obstacles to success. Think of the shelf space in the beer aisle at your local grocery or convenience store. It’s mostly national brands and larger regional breweries. 

To get on a retailer’s shelf requires negotiating that space with the retailer (who has to clear space already occupied by an existing brand), lining up distribution to the retailer, ensuring a steady supply of ingredients and packaging (including cans and bottles), and keeping production steady and consistent.

Many small-scale manufacturers don’t *have to* navigate such hazards because they have the option of opening their own retail outlets. If you make T-shirts or cupcakes, you can open your own branded stores and sell directly to the public. 

But not if you make beer.

Brewers classified as “beverage manufacturers” (as opposed to brew pubs or nano breweries) have long been restricted to selling their beer on-site or at a licensed retailer. The state prohibited them from opening  their own retail store in a location separate from their brewery.

Legislators not long ago created a separate legal entity called a “beverage manufacturer retail outlet,” but the law described such outlets as places where beverage manufacturing took place. So brewers were technically not allowed to open their own stores unless they also brewed there. 

This year, the Legislature passed and Gov. Chris Sununu signed House Bill 1039, which fixed that mistake and finally let beer manufacturers open a stand-alone retail outlet not connected to the brewing operation.

“This beverage manufacturer retail outlet allows a brewery such as ourselves to open a separate location that’s basically just a tasting room that doesn’t have to have a manufacturing facility,” Kirsten Neves of Tuckerman Brewery said in an interview.

There’s a catch, though. The law allows beer manufacturers to open a single retail outlet.

If you make beer in the North Country, you’re limited to opening one and only one branded retail outlet below the notches. If you want to create a series of branded outlets to provide customers a consistent retail and beer-tasting experience in Manchester, Nashua, Salem, Londonderry, Keene and Portsmouth, well, tough. You have to pick one. 

One is a big improvement over zero. But the public safety justification for limiting brewers to a single self-operated retail outlet is a mystery considering that the state is covered in licensed retailers. What possible public safety danger is created by a brewer operating a retail outlet instead of delivering product to a third-party retailer like a grocer or convenience store?

Though state beer regulations impose pretty severe burdens on brewers, the only other legislative change this year was a bill by Sen. Regina Birdsell, R-Derry, to allow dogs on brewpub patios. 

Some towns had been allowing people to bring their dogs when seated outdoors at a brewpub, but the state Department of Health and Human Services cracked down on the practice, saying it wasn’t allowed by statute.

So legislators actually had to pass a law to allow towns to allow dogs in outdoor seating areas. Birdsell’s Senate Bill 17 originally covered only brew pubs but was amended to cover all restaurants.  

To illustrate just how long it can take to make a small and reasonable change such as letting dogs sit on restaurant patios, the bill passed the Senate in February of 2021, but took almost another year before passing the House. Gov. Chris Sununu signed it into law this past February.

While the state was accumulating a record budget surplus this year, legislators were busy finding ways to raise more money from people who don’t mind handing cash to the state. Those would be gamblers.

How to raise more money from people who like to bet? Give them more opportunities to bet.

Until last week, charitable gaming venues were allowed to operate only from 11 a.m. to 1 a.m. Senate Bill 318, sponsored by Sen. Harold French, expanded that to 20 hours a day, and Gov Chris Sununu signed the bill last week. It took effect immediately.

Now, poker rooms can run from 8 a.m. to 4 a.m. 

None of the 18 poker rooms in the state has switched to the new hours yet. But almost all of them stay open until 1 every night of the week. (Some close earlier on weekdays.) So it’s a safe bet that they’ll continue operating for as long as the law allows, provided they can find staff to work the extra hours.

During the Senate hearing on the bill, no one testified in opposition. Among the few questions was one from Sen. Cindy Rosenwald, D-Nashua, who asked why, if the state is OK allowing operations for 20 hours a day, it bothers to set any limits at all?

That’s the right question. Under the new law, poker rooms are forced by the state to close for just four hours a day. Why? What’s the public health or safety benefit in closing them for about the same time it takes to watch half of the Ocean’s 11 movies?

Heavy regulations on gambling businesses are designed to protect the public from whatever spillover crime there might be and from the ravages of addiction. If those externalities are easily manageable, or are less costly than believed, then the case for such heavy regulation diminishes. 

Legislators seem to have decided that the pros (revenue) far outweigh the cons. But there remain understandable residual cultural reservations about the effects of gambling on the population, and this creates a reluctance to throw the doors wide open.

So the state moves mostly in the direction of maximizing revenues while holding onto a shred of the appearance of concern about ill effects. 

The same dynamic played out in the Keno debate this year. 

Keno brings in a lot more money ($47.9 million last year vs. 7.1 million for charitable gaming and simulcast horse racing). Keno has always been limited to places that have liquor licenses, but House Bill 335, sponsored by Rep. Tim Lang, expands Keno to any vendor that has a license to sell lottery tickets (provided the community has approved Keno sales).

The bill passed the Legislature and has yet to see action from the governor. 

These moves to expand gambling options are good evidence that the number of legislators deeply concerned about the potential ill effects of gambling is shrinking.

Two groups that favor gambling expansion are growing. One consists of those who want additional revenue. The other consists of those who think adults should be free to wager on games of chance if they want to.

A fun test of the strength of these factions could come next year. All someone would have to do is introduce a bill to let poker rooms operate 24/7.

In 1970, Manchester had more than enough rentals for all who needed one. Over the course of the next half century, the city created its own housing shortage. 

It’s a story repeated in many communities throughout New Hampshire. Manchester offers a case study based on Census figures.

Manchester had 36,024 total housing units in 1970, according to U.S. Census Bureau data. In 2020, the city had 49,445 housing units. That’s an increase of 37% in 50 years. 

By comparison:

  • Salem’s housing units grew from 6.795 in 1970 to 12,005 in 2020, an increase of 76%. 
  • Nashua’s housing units grew from 20,984 in 1970 to 37,933 in 2020, an increase of 80%.
  • Derry’s housing units grew from 4,279 in 1970 to 13,539 in 2020, an increase of 216%.
  • Total statewide housing units increased from 280,962 in 1970 to 638354 in 2020, an increase of more than 127%.

Those are total units, not just rentals. But you can see the rental shortage in the vacancy rate. Manchester’s rental vacancy rate fell from 5.4% in 1970 to below 1% today. 

(New Hampshire suffers from a similarly low vacancy rate, also caused by a shortage of rentals. Local planners in many communities have preferred to approve single-family homes rather than rentals.)

Because Manchester did not allow the construction of enough housing, the city’s population growth rate lagged the rates in some other municipalities. 

From 1970-2020, Manchester’s population grew by 32%. During the same period, Nashua’s population grew by 64%, Derry’s by 95%, and Salem’s by 342%. New Hampshire’s population grew by 87%. 

Because city officials chose to limit growth, Manchester’s population and economy have grown at a slower rate than the rest of the state as a whole. Artificially limiting the city’s housing supply created a drag on the city’s economic growth and cultural life.

If city leaders want to stimulate Manchester’s economy, revitalize its public schools, increase its tax base, and enhance its cultural life, goal No. 1 should be to approve a lot more housing, with an immediate emphasis on rentals. 

Companies have been working for years on new ways to recycle plastics, and they think they have a breakthrough concept: chemical, or “advanced,” recycling. If the technology is perfected, it has the potential to increase plastics recycling and decrease solid waste. 

Naturally, environmental activist groups hate it. 

In the Legislature this year, a popular, bipartisan bill to speed the development of advanced recycling in New Hampshire drew little opposition — except from some green activists.

Why? They prefer to abolish the production of single-use plastics. It’s a classic case of the perfect being the enemy of the good.

A General Accounting Office report last fall concluded that advanced recycling created tremendous new opportunities for:

  • Resource conservation. Chemical recycling can produce raw materials of virgin quality, thereby decreasing demand for fossil fuels and other natural resources.

  • Reduced landfill use. A significant amount of plastic waste ends up in landfills. New technologies could reduce the need for landfills, which may reduce the release of harmful chemicals into the environment.

  • New markets. Developing advanced recycling technologies could promote domestic business and employment. Chemical recycling creates a market for plastic waste and a new way to reuse some plastics.”

A New York recycling investment fund last year concluded that the technology had real promise for investors and as a recycling technology. 

A McKinsey study out this week concluded that advanced recycling “could satisfy 4 to 8 percent of total polymer demand by 2030….”

Obviously, there are no guarantees. Some advanced recycling plants have struggled to make a profit and have closed within a few years of opening. It might never achieve its stated goals, as is true of any expensive new technology.

Among its obstacles are state regulations, which tend to classify such facilities as solid waste disposal operations.

Senate Bill 367 classifies advanced recycling facilities as manufacturing, subjecting them to laws and regulations that apply to manufacturers rather than to solid waste disposal centers. 

The Department of Environmental Services supported the bill and testified in favor of it. 

At the request of the department, the bill authorizes state inspectors to “enter and inspect any advanced recycling facility to ensure compliance with all applicable statutes and departmental rules relative to air, water, waste, and land use and take any enforcement actions necessary.” 

The bill received a unanimous 4-0 “ought to pass” recommendation from the Senate Environment and Agriculture Committee and passed the Senate unanimously on a voice vote.

Sen. David Waters, a passionate environmentalist from Dover, co-sponsored the bill along with Sen. Kevin Avard, R-Nashua. Senate Minority Leader Donna Soucy, D-Manchester, also was a co-sponsor. 

In the House, however, opposition appeared. The House Environment and Agriculture Committee split on the bill, voting 4-3 in favor. The House passed it by 70-vote margin, but still 128 members voted against it. 

Some environmentalists worry that the new recycling process could cause unforeseen environmental problems. They don’t want it allowed until exhaustive testing and research can be done to guarantee safety. 

But that would delay the development of a promising new recycling technology indefinitely, and possibly smother it in the cradle. 

And that is exactly the point, for some activists. The Conservation Law Foundation opposed the bill, saying in a statement that it “disguises burning plastic as recycling and will spread toxic pollution into New Hampshire’s communities while keeping single-use plastic in production.”

The group’s stated goal is to end the production of single-use plastic. Making more of it recyclable is seen as an obstacle to achieving the end goal. 

As with natural gas power generation, some activists are hoping to block an incremental improvement to speed the arrival of a hypothetically perfect outcome. 

A GAO analysis of U.S. Environmental Protection Agency data from 2018 found that 75% of plastics wind up in landfills. Advanced recycling might have the potential to decrease that percentage substantially. But it can’t do that if environmentalists block it with a web of regulations.

Advanced recycling might not live up to its promise. But it definitely won’t if it’s never allowed to start. 

New Hampshire could become one of the earliest states to enable low-cost legal assistance by loosening occupational licensing regulations on the practice of law. If House Bill 1343 passes, paralegals would be able to provide limited legal representation to lower-income individuals in district, circuit and family court. 

Paralegals have some legal training but are not attorneys and do not have law degrees. They are prohibited from practicing law or representing clients in court. 

Restricting the practice of law to attorneys only, no matter how simple the legal matter, creates a shortage of legal representation and increases the cost of that representation.

As a result, 80%-90% of people who appear in family court in New Hampshire have no legal representation, bill sponsor Rep. Ned Gordon, R-Bristol, testified before the Senate Judiciary Committee last month. 

Only 13% of alleged domestic violence victims have legal representation in court, according to the Domestic Violence Task Force.

HB 1334 bill would let paralegals who are directly supervised by licensed attorneys represent lower-income clients in family, domestic, stalking and landlord-tenant cases. Paralegals could serve clients whose family income is no more than 300% of the federal poverty level.  

Testifying in favor of the bill, Chief Justice Gordon MacDonald said that allowing paralegals to represent clients in these types of cases would be “one of the most meaningful steps” the state could take to increase access to justice in the court system.

Other states have begun making similar changes for the same reasons. 

  • Arizona allows “Legal Paraprofessionals” to represent clients in family law and some limited civil, criminal and administrative law matters.
  • The State Bar of California is moving forward with a plan to allow “Legal Paraprofessionals” to represent clients in family, housing and some other limited legal matters. 

The push to remove needless barriers to the practice of law is not restricted to the United States. In the United Kingdom, barristers are attorneys who represent people in court, and solicitors generally do legal work for people outside of court. In 2020, the Legal Services Board approved a proposal to reduce the entry-level requirements for solicitors and broaden the number of people who can take the solicitor’s qualifying exam. 

In many countries, law degrees are offered at the bachelor’s level. The United States is an outlier in making graduate school the standard path to a law degree. 

HB 1343 would take a small step toward allowing people to purchase qualified legal representation at a lower cost than is available now. That it is supported by N.H. Legal Assistance and the N.H. Coalition Against Domestic and Sexual Violence shows a general consensus that such representation is needed. No law firm testified against the bill. 

If this small step passes, two obvious next steps could follow:

  1. Removal of the income restriction so that qualified paralegals can represent anyone. 
  2. The creation of a University of New Hampshire bachelor’s or master’s degree in legal studies that would lead to passage of the state bar exam. 

“While the talk is about free markets and private property—and it is more respectable than it was a few decades ago to defend near-complete laissez-faire—the bulk of the intellectual community almost automatically favors any expansion of government power so long as it is advertised as a way to protect individuals from big bad corporations, relieve poverty, protect the environment, or promote ‘equality.’”

— Milton Friedman, introduction to “The Road to Serfdom” 50th anniversary edition, 1994

 

The right-of-center movement in the United States is shifting toward statism in a way even many of its self-proclaimed liberty activists don’t realize. 

Responding to relentless left-wing provocation, people on the right think they’re defending liberty by using the state to block or punish private-sector actions they dislike. Instead, they’re expanding state control over private behavior. 

The “Live free or die” state is not immune to this shift. Here, lawmakers who believe themselves to be righteous champions of liberty are trying to extend state control over private contracts and decisions. 

To pick one example, consider House Bill 1210, relative to exemptions from vaccine mandates. The bill requires any employer that receives any public funds, including grants or contracts, to allow a “right of conscience” exemption from vaccination.

Framed as a defense of individual liberty, the bill actually would reduce liberty. 

If enacted, it would weaken the right of free individuals to associate only with others who accept their dedication to fighting infectious diseases through vaccination. 

Vaccination status is not an immutable characteristic like race or sex. It is a choice, and not a purely individualistic one. It can have profound, even life or death, consequences for others. 

Were the bill to pass, health care facilities such as nursing homes and hospitals would be required by law to hire employees who refuse to vaccinate themselves against any and all infectious diseases. The bill covers all vaccines, not just those for COVID-19.

The bill restricts freedom of association in the name of “bodily integrity.” But someone who refuses to vaccinate is making a choice to give up bodily integrity. 

A virus is a foreign living organism that invades a body and uses it as a host. Viruses cannot replicate by themselves. They infect host cells and use them for reproduction, usually killing them in the process. Vaccines are designed to protect cells against invasion and destruction by alien organisms. Their purpose is to preserve bodily integrity. 

Viruses aren’t libertarian. They’ll infect anyone they can. People have a right to choose to associate with others who agree to vaccinate. This bill would violate that right in pursuit of a non-existent right to join a group without agreeing to its terms.

Conservatives can easily see that it would be a violation of individual rights for the state to require religious employers or ideological organizations to hire anyone regardless of their beliefs. This bill violates the freedom of association in a similar way. 

Should HB 1210 become law, a cancer patient would be unable to seek medical care in New Hampshire in a facility with a fully vaccinated staff. That’s not protecting people’s rights. It’s forcing people to associate with others who might be a danger to themselves.

The libertarian saying that your rights end where my nose begins applies here. Going unvaccinated (or not) is not a lifestyle choice like getting tattooed or piercing one’s nose. It can have a direct, potentially catastrophic effect on others. And others have a right to protect themselves against that through their associations.

Like House Bill 1469, which seeks to restrict the free association rights of all New Hampshire businesses under the guise of regulating banks, HB 1210 would expand the power of the state to regulate economic transactions in new ways. 

Supporters of such market interventions honestly think they are taking steps to protect individuals. But they’re mistaken. Unwittingly, they are moving to empower collectivism and weaken the liberty of the individual. 

Using pressure tactics or government regulations, progressives have sought to banish from the market business activity they dislike. Some Republicans have responded in kind.

In New Hampshire, House Bill 1469 showcases a Republican effort to cement culture war preferences in law. It offers a case study in regulatory overreach.

The bill creates a list of “prohibited acts for banks, credit unions, and businesses.” The list is long, vague and broad. And despite the title, the bill regulates every New Hampshire business, not just the financial industry.

HB 1469 labels as “discrimination” many non-financial reasons for not doing business with someone. 

Among the prohibitions: No financial institution may “discriminate against, impose as a precondition, advocate for or cause adverse treatment of, any person, business, or organization in their business practices” based on “ideological, philosophical, or political views and opinions” or other enumerated non-financial criteria.

The non-financial criteria include “social media posts; Internet browsing history, dietary habits, medical status, participation or membership in any clubs, associations, or unions, etc.; political affiliation; or place of employment or source of legal income.”

The bill would write similar language into the state’s Consumer Protection Act. The Attorney General’s Office testified that this  would “regulate all businesses” in the state, something sponsors did not appear to intend.

Thus every decision not to transact business would be open to potential civil rights litigation on the grounds that it might have been tainted by a non-financial consideration. 

In going after “woke” global corporations, HB 1469 would treat small New Hampshire businesses the way the Colorado Civil Rights Commission treated a Christian cake baker — as pawns in a broader culture war. 

Such a sweeping regulation of private business activity could be seen as justified if Granite Staters had access to only one bank. But they can choose from hundreds of financial institutions. 

New Hampshire has 16 state-chartered banks, eight state-chartered credit unions and 34 state-chartered trust companies. That’s in addition to 783 federally chartered banks, including many that are online-only and process applications in minutes. 

If one or 10 or 50 banks decide not to do business with center-right customers in a center-right country, competitors would immediately take up that business. Fear that conservatives will lose all banking privileges is overblown.

There is no shortage of financial institutions willing to take Americans’ money. And there is no shortage of entrepreneurs who would be happy to get rich by lending money to gun owners, meat eaters and other practitioners of great American pastimes. 

But there is a shortage of states where legislators resist the temptation to let people resolve their differences peacefully in a free and open marketplace. New Hampshire is one of the few places where leaving people alone is a cultural value. Kill that here, and the consequences will be a lot worse than some bank deciding to lose money by shrinking its customer base. 

Some Republicans think they need a law to protect them from businesses run by Democrats. But the market already does that via competition. Expanding business regulations so broadly will only give left-wing activists another tool with which to control businesses once their allies return to power, which is inevitable.

When that happens, conservatives will want to be able to argue against such proposals on free-market grounds. Regulating the political motives of every business transaction will do more than topple Republicans from that moral high ground. It will amount to abandoning the hill and destroying it. 

The state banking commissioner testified that the department has received no complaints of political discrimination in banking. Given that, a less burdensome alternative is obvious, if lawmakers feel that they have to “do something.” Task the department with collecting consumer complaints about discriminatory practices and reporting those complaints annually to the Legislature. 

If financial institutions begin to systematically turn away right-of-center customers and business partners, this will show up in the data. If those customers are unable to find other institutions willing to take their business, then lawmakers could consider an appropriate legislative remedy. 

In the meantime, legislators might want to consider the wisdom of a recently departed Granite Stater who cautioned that “there are just two rules of governance in a free society. Mind your own business. Keep your hands to yourself.”

Granite Staters could gain a little more freedom this year to make extra money from home.

The COVID-19 pandemic has reshaped the American workforce, probably permanently. A Pew poll in February found that 59% of people who say their jobs can be done mostly from home are working from home all or most of the time, with another 18% working from home some of the time. 

What’s more, 61% of them say they are working from home by choice. 

A study published by Stanford University in March concluded that “about half of the US workforce currently works remotely at least one day each week.”

Millions of Americans are choosing to convert their living rooms, dens, bedrooms, play rooms, basements, etc. into home offices. 

But for those who don’t type on laptop computers all day, working from home is trickier. Regulations often prevent homes from being monetized in more traditional ways. 

Two bills in the Legislature would relax some restrictions that make it harder for people to generate extra income from their homes. 

RSA 143-A:12 allows Granite Staters to operate a “homestead food operation” from their kitchens. (It excludes foods the require refrigeration.)

To prevent these kitchen businesses from scaling up to full commercial operations, allowable sales are capped at $20,000. 

House Bill 314 would increase that cap to $35,000, letting people make a living, or at least a really strong side-income, from homestead food preparation. The bill would increase a homestead food operator’s maximum allowed weekly sales from $384.60 to $673.

For those who wish to monetize the rest of their home, Senate Bill 249 would prohibit municipalities from banning short-term rentals. 

According to a new analysis by the state Office of Planning & Development, 27 New Hampshire jurisdictions regulate short-term rentals in some way. These range from Franconia’s registration requirement to Bedford’s ban. 

SB 249 would allow short-term rentals statewide while authorizing municipalities to “generally regulate parking, noise, safety, health, sanitation” and apply “other related municipal ordinances” to short-term rentals. 

Municipalities could require registration, and they could revoke that registration if a property is associated with more than one ordinance violation. 

There is some concern that short-term rentals could raise rents and home prices. Studies have found that these rentals are associated with a short-term bump in prices.

But over the long run, short-term rentals have been found to stimulate housing construction.

A study released last fall looked at the effect of Airbnb rentals on housing construction over a decade. It found that a 1% increase in Airbnb listings led to a 0.769% increase in permit applications. 

The authors found that short-term rentals stimulate the construction of new housing units, leading to increased property tax revenue, and that “restricting STRs can have a significant, negative impact on local economic activity.”

It’s not surprising that people will try to build more housing if they can use it to generate extra income. 

These practical considerations aside, regulations on the use of property (particularly for generating income) have grown so strict that they’ve caused a significant erosion of private property rights. 

Historian Edmund S. Morgan wrote that “widespread ownership of property is perhaps the most important single fact about Americans of the Revolutionary period. . . . Standing on his own land with spade in hand and flintlock not far off, the American could look at his richest neighbor and laugh.”

Today, a Granite Stater standing on his own land looks at his neighbor and worries, as the neighbor can call the town planning department and report him for a dozen potential ordinance violations.

Instead of balancing competing private property interests, state and local regulations have long trended against property owners. Regaining that balance will take decades. It can start with small changes that grant a little more discretion to property owners while maintaining rules that allow neighbors to assert their own property rights. 

Until last week, it was legal to for small New Hampshire farms to sell raw (unpasteurized) milk, cream, cheese, butter, yogurt and kefir directly to consumers. But anyone stopping at a local farm and hoping for raw milk ice cream was out of luck. That product was illegal. 

Legislators discovered this omission in 2019 when Little Red Hen Farm in Pittsfield was cited for selling ice cream made from raw goat’s milk. Farmer Jill Fudala said she thought she could sell the ice cream since the state let her sell all the other raw milk products. 

But it turns out that legislators had left ice cream off the list of approved raw milk products. 

Rep. James Allard, co-sponsor of House Bill 95, to allow the sale of raw milk ice cream, said at a hearing last March that no one knew why ice cream was excluded. 

The bill, signed into law by Gov. Chris Sununu last week, limits raw milk ice cream servings to six ounces. (Farms where raw milk sales are allowed without a license are limited to producing no more than 20 gallons of raw milk a day.)

The size restrictions are to limit outbreaks. Unpasteurized dairy products are more likely to contain harmful bacteria. State officials reason that prohibiting large-scale production of raw milk products reduces the risk to the public while allowing small farms to deal in small quantities.

It’s a balancing act. After pasteurization became widely available, bans on unpasteurized dairy products followed. But modern farms are cleaner than their predecessors of a century ago. As  raw milk has become a trendy consumer product, many states have responded by carving out exceptions to the bans. 

In New Hampshire’s case, the exception made an exception of ice cream. 

This seemingly insignificant story offers three real-life lessons for thinking about public policy.

1. The details matter. Minor mistakes or oversights in writing rules and regulations can have real consequences. Because legislators left one dairy product out of a list, a small farm was cited by the state for doing something that aligned with the spirit, but not the letter, of the law.

2. Attempting to eliminate risk creates other risks. Banning raw milk sharply cuts the risk of bacterial infection. The tradeoff is that it puts small farms at increased risk of failure. Lawmakers opted to strike a balance by allowing limited raw milk sales at small farms and requiring labeling so consumers would know what they were buying. A co-sponsor of HB 95, Rep. William Marsh, is a medical doctor. He testified last March that allowing small-scale raw milk sales would carry some limited risk of illness, but the overall risk would be reduced because the state could then focus its inspection efforts on larger farms that carried much larger public health risks.

3. Every industry regulation attracts rent-seeking. HB 95 was a tiny change to allow tiny farms to sell tiny ice creams. And yet large dairy lobbyists tried to crush it. In April of last year, the National Milk Producers Federation (which sounds like a cartel from Star Wars) and the International Dairy Foods Association sent a letter requesting that legislators kill the bill.